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Overruled 30-something years later, but it's also been applied in a number of different circumstances. for example, it's been suggested that dred scott, which treated slaves as chattel property was a product of substantive due process. justice hugo black has criticized the doctrine of substantive due process as the arbitrary fiat of the man or men in power or the court declaring a law invalid because it shocked the consciences of at least five members of the court. he went on to say this use of judicial review thus subverts the liberty of government by the people overturning laws enacted

Judicial policymaking, is it not? >> senator, the supreme court has consider that to be an application of the substantive due process clause of the 14th amendment. >> and the constitution doesn't mention anything about the substance when it talks about due process? the 14th in the 15th amendment don't talk about substantive due process, talks about due process of law, correct? >> correct. >> oh one of the things that concerns me is here is an example of the court's finding a new fundamental right that is mentioned nowhere in the document of the constitution. it is the product of simply court m...

Contract. now lochner, as you know, was overruled 30 something years later. it has also been applied in a number of different circumstances. for example, it's been suggested that dred scott, which treated as property, was a product of substantive due process. justice hugo black has criticized the doctrine of substantive due process. as the arbor terry fiat of the man or men in power more the court declaring a law invalid because it shocked the consciousnesses of at least five members of the court. he went on to say this use of judicial review thus subverts the liberty of government by the

And reflecting what congress intended. and of course, in statutory interpretation, if congress decides that the court has gotten it wrong, then as has happened many times, congress comes back and clarifies and tells the court, no, this is what the statute means. >> i want to go back to an exchange you had with senator cornyn. substantive due process is a doctrine that often allows courts to create new fundamental rights. what's the test for determining a new fundamental right? >> the supreme court has said in the glutzburg case that the fundamental rights that are recognized or that are includ...

>> so on a scale of 1 to 10, how faithful would you say you are, in terms of religion. >> do you agree with mr. brooks that babies are racists? >> your reaction? >> this was absolutely horrific. what it showed was a disdain for the rule of law, and a disregard for the united states constitution. to have a test on how religious she happens to be, these questions about crt should ring alarm bells about entity of the first amendment being trashed by these members of the senate judiciary committee. questions about what is a woman should allow every person in the united states, who cares about subs...