A review of the evolution of due-process jurisprudence in the United States.

"Anyone interested in constitutional history or the modern debates on privacy or the role of the judiciary will want to read this book."—Annals of the American Academy of Political and Social Science

"Keynes illuminates a central and fundamental concept of American constitutionalism: the Due Process Clauses of the Fifth and Fourteenth Amendments. His analysis yields a deeper understanding of due process, both procedural and substantive, and offers sound guidance for a better methodology from the courts."—Louis Fisher, author of American Constitutional Law

In this book, Edward Keynes examines the fundamental-rights philosophy and jurisprudence that affords constitutional protection to unenumerated liberty, property, and privacy rights. He is critical of the failure of the U.S. Supreme Court to adopt a coherent theory for identifying which rights are to be considered fundamental and how these private rights are to be balanced against the public interests that the government has a duty to articulate and promote.

Keynes develops his argument by first surveying how substantive due process grew out of the tradition of Anglo-American jurisprudence and came to evolve over time. He pays special attention to the shift in its application early in the twentieth century, from protecting "liberty of contract" against economic regulation to protecting "privacy" and other noneconomic rights (as in Roe v. Wade) against social regulation.