This article is about which rights are protected under the Due Process Clauses of the 5th and 14th Amendments to the Constitution. The essential question related to this debate is whether these amendments only protect "procedural rights," which refers to the process that states and the federal government follow in judicial proceedings, or whether these clauses also protect what are called "substantive rights," which are the actual rights given to individuals.
The author of this article, Williams, looks at the historical context in which each of these amendments was written. He argues that when the 5th Amendment was ratified in 1791, there was no recognition of substantive due process rights. He writes:
"The preceding review of the historical evidence regarding the early understandings of 'due process of law' is largely supportive of the traditional view that the Due Process Clause of the Fifth Amendment was originally understood either not to constrain the legislature at all, or, at most, to limit the legislature’s discretion in prescribing certain modes of judicial procedure" (page 454).
However, by 1868, when the 14th Amendment was ratified, there was a form of substantive due process rights recognized by courts in at least 20 out of the then 37 states and by the Supreme Court. The author writes that in the period from 1791 to 1868:
"Due process concepts evolved dramatically through judicial elaboration of due process and similar provisions in state constitutions, and through invocations of substantive due process arguments by both proslavery and abolitionist forces in connection with debates concerning the expansion of slavery in the federal territories" (page 416).
That is, by the time the 14th Amendment was ratified, many state constitutions recognized a form of substantive due process rights.
However, the judicial system has often assumed that the due process rights in both amendments are the same. Instead, the author argues for what he calls the "divergent meanings model" of the Due Process Clauses of the 5th and 14th Amendments, meaning that the original meanings of the clauses in both amendments were not the same.