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实质性正当程序是美国法院在司法审查中对正当程序条款能动解释的产物,对于防范政府以正当程序制定法律侵犯公民基本权利和自由具有重要价值。实质性正当程序的含义随着社会的变迁而发展,其适用范围从最初的保护财产权、契约自由,发展到20世纪后期主要适用于人身权利领域,尤其是对隐私权的保护。美国宪法创造性地发展出实质性正当程序,很大程度上得益于其建立了一套独特的检验方法。通过考察实质性正当程序的起源和演变,启示我们应树立正当程序的理念,以之指导当前的司法改革并完善宪法解释。
Substantive due process is the product of the active interpretation of the due process clauses by the U.S. courts in judicial review. It is of great value in preventing the government from infringing upon the basic rights and freedoms of citizens through due process law. The meaning of substantive due process develops with the change of the society. Its scope of application is from the initial protection of property rights and freedom of contract. It is mainly applied to the right of personal rights in the late 20th century, especially the protection of privacy. The United States Constitution has creatively developed substantial due process, largely thanks to the establishment of a unique set of test methods. By investigating the origin and evolution of substantive due process, it is suggested that we should establish the concept of due process to guide the current judicial reform and perfect the constitutional interpretation.