4.2 Substantive due process
7 min read•august 21, 2024
Substantive due process protects from government intrusion. It evolved from the Fifth and Fourteenth Amendments, expanding beyond procedural protections to safeguard liberties not explicitly listed in the Constitution.
This doctrine plays a crucial role in civil rights and liberties by allowing courts to invalidate laws that infringe on fundamental rights, even if procedurally sound. It has shaped landmark cases on privacy, marriage, and personal autonomy.
Origins of substantive due process
- Substantive due process emerged as a constitutional doctrine protecting individual liberties from government intrusion
- Evolved from the due process clauses of the 5th and 14th Amendments, expanding beyond procedural protections
- Plays a crucial role in safeguarding fundamental rights not explicitly enumerated in the Constitution
Constitutional basis
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- Rooted in the Fifth Amendment's due process clause, applied to federal government actions
- Extended to state governments through the Fourteenth Amendment's due process clause
- Interprets "due process of law" to include substantive protections beyond procedural fairness
- Allows courts to invalidate laws infringing on fundamental rights, even if procedurally sound
Historical development
- Originated in the late 19th century as courts began to scrutinize the substance of laws
- Gained prominence during the (1897-1937), focusing on economic liberties
- Shifted focus to personal liberties and in the mid-20th century
- Evolved through landmark cases (, ) establishing new protected rights
Fundamental rights analysis
- Central to substantive due process jurisprudence, determining which rights receive heightened protection
- Involves identifying rights deemed fundamental to ordered liberty and deeply rooted in nation's history
- Shapes the level of scrutiny courts apply when reviewing laws affecting these rights
Identifying fundamental rights
- Courts look to the text and structure of the Constitution for explicit and implicit rights
- Consider historical traditions and practices to determine deeply rooted rights
- Examine contemporary values and societal norms for evolving standards of liberty
- Utilize the "ordered liberty" test to assess a right's importance to individual freedom
- Rights identified include privacy, marriage, procreation, and personal autonomy
Levels of scrutiny
- applied to laws infringing on fundamental rights
- Government must show compelling interest and narrow tailoring
- Highest level of review, most protective of individual rights
- Intermediate scrutiny used for certain quasi-suspect classifications
- Requires important government interest and substantial relationship
- Rational basis review for non-fundamental rights
- Lowest level of scrutiny, requires only legitimate state interest
Economic substantive due process
- Focused on protecting economic liberties and freedom of contract from government regulation
- Dominated Supreme Court jurisprudence in the early 20th century
- Declined in influence following the New Deal era and changing economic philosophies
Lochner era
- Named after Lochner v. New York (1905), striking down maximum working hours law
- Characterized by judicial skepticism towards economic regulations and labor laws
- Court frequently invalidated progressive legislation as violating liberty of contract
- Notable cases include Adkins v. Children's Hospital and Coppage v. Kansas
- Criticized for judicial overreach and imposing laissez-faire economic theory
Decline of economic due process
- Began with Nebbia v. New York (1934), upholding price controls on milk
- West Coast Hotel v. Parrish (1937) explicitly overruled Adkins, marking end of Lochner era
- Shift coincided with New Deal policies and changing views on government's economic role
- Courts adopted more deferential approach to economic regulations (rational basis review)
- Focus of substantive due process shifted to personal liberties and non-economic rights
Personal liberty due process
- Emerged as the primary focus of substantive due process following decline of economic due process
- Protects individual autonomy, privacy, and personal decision-making from government intrusion
- Encompasses a range of rights related to intimate personal choices and family matters
Privacy rights
- Established in Griswold v. Connecticut (1965), recognizing right to marital privacy
- Extended to individual privacy in (1972) for contraception access
- Includes informational privacy and protection against government surveillance
- Covers decision-making autonomy in personal matters (family, education, medical choices)
- Continues to evolve with technological advancements and changing societal norms
Reproductive freedom
- Roe v. Wade (1973) recognized constitutional right to abortion under privacy doctrine
- (1992) reaffirmed core holding of Roe, introduced undue burden test
- Includes right to access contraception and make childbearing decisions
- Extends to sterilization choices and protection against forced sterilization
- Remains a contentious and evolving area of substantive due process jurisprudence
Marriage equality
- Represents a significant expansion of substantive due process protections in recent years
- Recognizes marriage as a fundamental right, extending equal protection to same-sex couples
- Demonstrates the evolving nature of fundamental rights under substantive due process doctrine
Same-sex marriage cases
- (2013) struck down part of Defense of Marriage Act
- (2013) effectively legalized same-sex marriage in California
- State-level cases (Goodridge v. Department of Public Health) paved way for national recognition
- Highlighted changing societal attitudes and equal protection concerns
- Challenged traditional definitions of marriage and family structures
Obergefell v. Hodges
- Landmark 2015 Supreme Court decision legalizing same-sex marriage nationwide
- Held that the fundamental extends to same-sex couples under Due Process Clause
- Also ruled that state bans violated the Equal Protection Clause of the
- Emphasized dignity, autonomy, and equality as central to substantive due process analysis
- Sparked ongoing debates about scope of judicial power in recognizing new fundamental rights
Right to die
- Addresses end-of-life decisions and individual autonomy in medical treatment choices
- Involves complex balancing of personal liberty, state interests, and ethical considerations
- Remains a controversial and evolving area of substantive due process jurisprudence
Assisted suicide debates
- Cruzan v. Director, Missouri Dept. of Health (1990) recognized right to refuse life-sustaining treatment
- (1997) held no fundamental right to assisted suicide under Constitution
- State-level initiatives (Oregon's Death with Dignity Act) allow physician-assisted suicide
- Raises questions about limits of personal autonomy and state's interest in preserving life
- Involves medical ethics, disability rights, and potential for abuse considerations
End-of-life decisions
- Includes right to refuse medical treatment, even if life-sustaining
- Covers advance directives, living wills, and healthcare proxy designations
- Terri Schiavo case highlighted complexities of end-of-life decision-making
- Balances individual wishes, family interests, and medical professionals' obligations
- Continues to evolve with medical advancements and changing societal views on death and dying
Substantive due process vs procedural due process
- Both derived from the Due Process Clauses of the 5th and 14th Amendments
- Serve different but complementary functions in protecting individual rights
- Often intertwined in legal analysis and application of constitutional protections
Key differences
- Substantive due process protects against arbitrary government actions affecting fundamental rights
- Procedural due process ensures fair procedures when government deprives life, liberty, or property
- Substantive focuses on the content of laws, procedural on the method of enforcement
- Substantive involves higher levels of scrutiny for fundamental rights
- Procedural requires notice, opportunity to be heard, and impartial decision-maker
Overlapping principles
- Both aim to protect individual liberties from unjust government intrusion
- Can be applied simultaneously in cases involving deprivation of rights
- Share common origins in constitutional interpretation and judicial review
- Both evolve through case law and changing societal norms
- Interact in areas like civil commitment proceedings and termination of parental rights
Criticisms and controversies
- Substantive due process remains one of the most debated areas of constitutional law
- Raises questions about judicial power, democratic processes, and constitutional interpretation
- Continues to spark academic, legal, and political discussions on the role of courts
Judicial activism concerns
- Critics argue substantive due process allows unelected judges to create new rights
- Raises separation of powers issues, potentially usurping legislative role
- Concerns about lack of clear textual basis in Constitution for some recognized rights
- Debates over proper balance between judicial review and democratic decision-making
- Supporters argue it's necessary to protect minority rights and evolving concepts of liberty
Originalist objections
- Originalists contend substantive due process lacks historical and textual support
- Argue it departs from original meaning and intent of Due Process Clauses
- Criticize use of "" theory in expanding unenumerated rights
- Claim it allows judges to impose personal preferences under guise of constitutional interpretation
- Debate centers on proper methods of constitutional interpretation and role of precedent
Modern applications
- Substantive due process continues to shape contemporary legal landscape
- Addresses new challenges posed by technological advancements and changing social norms
- Remains a key tool for protecting individual liberties in face of government overreach
Recent Supreme Court cases
- Dobbs v. Jackson Women's Health Organization (2022) overturned Roe v. Wade
- (2019) incorporated Eighth Amendment's excessive fines clause to states
- (2016) struck down restrictive abortion regulations
- (2015) legalized same-sex marriage nationwide
- United States v. Windsor (2013) invalidated part of Defense of Marriage Act
Emerging issues
- Digital privacy rights in era of big data and surveillance technologies
- Reproductive rights and access to abortion following Dobbs decision
- LGBTQ+ rights beyond marriage equality (employment, housing, healthcare)
- Right to die and medical aid in dying laws across states
- Parental rights in education and medical decision-making for children
Future of substantive due process
- Continues to evolve as society faces new challenges and changing values
- Likely to remain a contentious area of constitutional law and judicial philosophy
- Will shape future debates on individual rights, government power, and constitutional interpretation
Potential expansions
- Environmental rights and climate change-related protections
- Rights related to artificial intelligence and human augmentation technologies
- Expanded privacy protections in digital age (data ownership, algorithmic decision-making)
- Recognition of new family structures and relationships beyond traditional marriage
- Rights related to genetic information and personalized medicine
Constitutional challenges
- Balancing individual liberties with national security concerns in age of global terrorism
- Addressing economic inequality and potential revival of economic substantive due process
- Reconciling federalism principles with expanding federal power and individual rights
- Navigating conflicts between religious liberty and anti-discrimination protections
- Adapting constitutional doctrines to rapid technological and social changes
Key Terms to Review (28)
14th Amendment: The 14th Amendment, ratified in 1868, is a key constitutional provision that grants citizenship to all persons born or naturalized in the United States and ensures equal protection under the law. It connects crucial aspects of civil rights, incorporating fundamental rights against the states, while also serving as a foundation for various civil liberties discussions.
5th Amendment: The 5th Amendment to the United States Constitution protects individuals from self-incrimination and guarantees due process of law. It ensures that no person shall be subjected to double jeopardy, meaning they cannot be tried twice for the same offense, and it requires that serious criminal charges be started by a grand jury indictment. These protections are essential in safeguarding individual liberties against government overreach.
Civil rights movement: The civil rights movement was a social and political struggle in the United States, primarily during the 1950s and 1960s, aimed at ending racial discrimination and securing equal rights for African Americans. This movement not only sought to dismantle segregation laws but also aimed to promote voting rights, economic equality, and social justice, making significant impacts on American society and legislation.
Cruzan v. Director, Missouri Department of Health: Cruzan v. Director, Missouri Department of Health was a landmark Supreme Court case decided in 1990 that addressed the right to die and the issue of substantive due process. The case involved Nancy Cruzan, a woman who was in a persistent vegetative state, and whether her family could refuse life-sustaining treatment on her behalf. The decision emphasized the importance of due process rights concerning personal autonomy and individual choice, particularly when it comes to medical decisions and end-of-life care.
Eisenstadt v. Baird: Eisenstadt v. Baird was a landmark Supreme Court case decided in 1972 that established the right to privacy in the context of reproductive rights, particularly concerning access to contraception. This case reinforced the notion that individuals have a fundamental right to make decisions about their own reproductive health without unwarranted government interference. The ruling also played a critical role in advancing personal liberties, especially for unmarried individuals, highlighting the significance of both substantive due process and the broader women's rights movement.
Fundamental Rights: Fundamental rights are basic human rights that are recognized as essential to the dignity and freedom of individuals. These rights are often protected by law and serve as a foundation for justice, equality, and liberty in society. They are crucial in safeguarding individuals against government overreach and discrimination, particularly through mechanisms like substantive due process and constitutional provisions such as the Fourteenth Amendment.
Griswold v. Connecticut: Griswold v. Connecticut was a landmark Supreme Court case decided in 1965 that established a constitutional right to privacy regarding marital relations and the use of contraceptives. This case marked a significant expansion of personal liberties and helped to form the foundation for later rulings related to reproductive rights and privacy issues.
Hollingsworth v. Perry: Hollingsworth v. Perry was a landmark Supreme Court case decided in 2013 that addressed the constitutionality of California's Proposition 8, which banned same-sex marriage. The case significantly impacted the interpretation of substantive due process, as it involved the rights of individuals to marry regardless of sexual orientation, reinforcing the principles of equality and personal liberty under the Constitution.
Judicial Activism: Judicial activism is the practice where judges take an active role in interpreting laws and the Constitution, often to promote social change or protect individual rights. This approach contrasts with judicial restraint, where judges limit their own power and defer to the decisions of the legislative and executive branches. Judicial activism is significant in understanding the evolution of civil rights, particularly in relation to the protection of liberties and the expansion of constitutional interpretations.
Judicial Restraint: Judicial restraint is a legal philosophy where courts defer to the decisions of the legislative and executive branches, emphasizing a limited role for the judiciary in interpreting laws and constitutional provisions. This approach prioritizes the respect for precedent and the belief that elected officials should make policy decisions, while judges should refrain from imposing their own views or overturning laws unless absolutely necessary.
Justice Harry Blackmun: Justice Harry Blackmun was an Associate Justice of the United States Supreme Court, serving from 1970 to 1994. He is best known for writing the majority opinion in the landmark case Roe v. Wade, which recognized a woman's right to choose to have an abortion under the right to privacy. His judicial philosophy evolved over time, reflecting a commitment to civil liberties and a belief in substantive due process as a means to protect individual rights.
Justice William Brennan: Justice William Brennan served on the U.S. Supreme Court from 1956 to 1990, known for his influential opinions that expanded civil rights and liberties. He was a strong advocate for substantive due process, emphasizing individual rights against government intrusion, and played a crucial role in shaping the interpretation of the Constitution regarding cruel and unusual punishment, free speech, and unreasonable searches and seizures.
Living Constitution: The Living Constitution is a legal theory that posits the Constitution is a dynamic document that should be interpreted in light of contemporary values and circumstances, rather than being limited to the original intent of the framers. This approach emphasizes that the Constitution can adapt to changes in society over time, allowing for broader interpretations that can address current issues and needs, particularly in matters of individual rights and liberties.
Lochner Era: The Lochner Era refers to a period in U.S. legal history from the late 19th century until the New Deal in the 1930s, marked by the Supreme Court's frequent use of substantive due process to invalidate economic regulations. This era is characterized by a focus on individual economic liberties, often at the expense of workers' rights and government regulation. The term originates from the case 'Lochner v. New York' (1905), where the Court struck down a state law regulating working hours for bakers, reflecting a broader judicial philosophy that favored laissez-faire economics.
Obergefell v. Hodges: Obergefell v. Hodges is a landmark Supreme Court case decided in 2015 that legalized same-sex marriage across the United States. This decision affirmed that state bans on same-sex marriage and refusal to recognize such marriages violated the Fourteenth Amendment, particularly its guarantees of equal protection and due process, thereby reshaping the legal landscape for LGBTQ+ rights and personal autonomy.
Originalism: Originalism is a constitutional interpretation method that focuses on understanding the Constitution as it was intended by its framers at the time it was written. This approach emphasizes the original meaning of the text and the intentions behind its provisions, aiming to apply those meanings to contemporary legal issues. Originalism seeks to limit judicial interpretation and maintain the authority of the written Constitution, making it a significant viewpoint in discussions around constitutional law.
Planned Parenthood v. Casey: Planned Parenthood v. Casey is a landmark Supreme Court case decided in 1992 that upheld the constitutional right to have an abortion established in Roe v. Wade while allowing states to impose certain restrictions on that right. This case reaffirmed the importance of substantive due process by recognizing personal liberties concerning reproductive choices and balancing them against state interests.
Privacy rights: Privacy rights refer to the fundamental human rights that protect individuals from unwarranted interference and intrusion into their personal lives by the government or other entities. These rights encompass a range of issues, including the protection of personal information, the right to make personal decisions without outside interference, and the ability to communicate privately. Privacy rights are critical in safeguarding individual autonomy and dignity, influencing discussions around freedom from government surveillance, as well as how data is managed and accessed online.
Rational Basis Test: The rational basis test is a legal standard used by courts to evaluate the constitutionality of laws or government actions that affect individuals' rights, particularly in matters of equal protection under the law. It requires that a law be rationally related to a legitimate government interest, meaning that the government must show a reasonable connection between the law and its purpose. This test is often applied in cases that do not involve fundamental rights or suspect classifications, making it a relatively lenient standard for lawmakers.
Right to marry: The right to marry is a legal and constitutional right that allows individuals to enter into a marital relationship, recognized by the state, and is considered a fundamental aspect of personal freedom and autonomy. This right is closely tied to issues of equality, privacy, and individual liberty, making it a significant point of discussion in the context of substantive due process. The legal recognition of marriage has evolved over time to include same-sex couples, highlighting the ongoing struggle for civil rights and equal protection under the law.
Right to raise children: The right to raise children refers to the fundamental liberty that parents have to make decisions regarding the upbringing and education of their children without undue interference from the state. This right is recognized as a component of substantive due process, ensuring that individuals can exercise their parental authority in areas such as discipline, education, and religious upbringing, while also considering the best interests of the child.
Roe v. Wade: Roe v. Wade is a landmark 1973 Supreme Court case that established a woman's legal right to have an abortion under the constitutional right to privacy. This case set a precedent for reproductive rights and has had a profound impact on the legal landscape surrounding abortion, privacy, and women's autonomy.
Strict Scrutiny: Strict scrutiny is the highest level of judicial review used by courts to evaluate the constitutionality of government actions or laws that classify individuals based on race, national origin, or fundamental rights. Under this standard, the government must show that its action serves a compelling state interest and is narrowly tailored to achieve that interest. This concept is crucial in understanding how courts assess equality and protection under the law.
Timbs v. Indiana: Timbs v. Indiana is a landmark Supreme Court case decided in 2019 that held that the Eighth Amendment's Excessive Fines Clause is applicable to the states through the Fourteenth Amendment's Due Process Clause. This case focused on the seizure of a man's Land Rover after he was convicted of a drug offense, raising critical questions about the limits of state power in enforcing punitive measures and protecting individual rights.
United States v. Windsor: United States v. Windsor was a landmark Supreme Court case decided in 2013 that struck down a key provision of the Defense of Marriage Act (DOMA), which had defined marriage as only between one man and one woman for federal purposes. This decision marked a significant step toward recognizing same-sex marriages, impacting legal standards around sexual orientation and gender identity discrimination, substantive due process, and the overall progress of the LGBTQ+ rights movement.
Washington v. Glucksberg: Washington v. Glucksberg is a landmark Supreme Court case from 1997 that dealt with the right to assisted suicide and the scope of substantive due process. The Court ruled that the Constitution does not provide a fundamental right to assisted suicide, emphasizing the importance of state interests in regulating medical practices and protecting vulnerable individuals.
Whole Woman's Health v. Hellerstedt: Whole Woman's Health v. Hellerstedt is a landmark Supreme Court case decided in 2016 that struck down Texas laws imposing strict regulations on abortion clinics, ruling them unconstitutional as they placed an undue burden on a woman's right to access abortion services. The case reaffirmed the principles of substantive due process, emphasizing the constitutional protection of personal liberties, including reproductive rights.
Women's rights movement: The women's rights movement refers to a social and political campaign aimed at achieving equal rights and opportunities for women, particularly in areas such as voting, employment, education, and reproductive rights. This movement has evolved over time, addressing various issues related to gender inequality and advocating for the recognition of women's autonomy and agency in society. Its impact can be seen in significant legal and social changes that have advanced women's rights, particularly regarding personal freedoms and healthcare access.