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Substantive due process


Substantive due process

In United States constitutional law, substantive due process is a principle which allows federal courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law."[1][2] That is, substantive due process demarcates the line between acts by persons that courts hold are subject to government regulation or legislation and those acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent.[3]

Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law".[4] Procedural due process aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial—e.g., the right to sufficient notice, the right to an impartial arbiter, and the right to give testimony and admit relevant evidence at hearings.[4] In contrast, substantive due process aims to protect individuals against majoritarian policy enactments that exceed the limits of governmental authority—that is, courts may find that a majority's enactment is not law, and cannot be enforced as such, regardless of how fair the processes of enactment and enforcement actually are.[4]

The term "substantive due process" was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions.[5] The term "substantive due process" itself is commonly used in two ways: first, to identify a particular line of case law; and second, to signify a particular political attitude toward judicial review under the two Due Process Clauses.[6]

Much substantive due process litigation involves legal challenges regarding unenumerated rights which seek particular outcomes instead of merely contesting procedures and their effects; in successful cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope.[6] Critics of substantive due process decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.[6]


  • Conceptual basics 1
  • Doctrinal development and use 2
    • Early republic origins 2.1
    • Later development 2.2
  • Criticisms of substantive due process 3
  • Judicial review of substantive due process violations 4
  • Footnotes 5
  • Further reading 6

Conceptual basics

The Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.”[7] Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.[8] Some of those rights are “deeply rooted” in American history and tradition; this specific phrase was used with respect to rights related to the institution of the family.[9]

The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions,[10] and alternatively they could be protected by legislatures.[11][12]

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:

  • the rights enumerated in and derived from the first eight amendments in the Bill of Rights e.g., the Eighth Amendment;
  • the right to participate in the political process e.g., the rights of voting, association, and free speech; and
  • the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. Strict scrutiny asks whether the law is justified by a compelling state interest, and whether the law is narrowly tailored to address the state interest.

Doctrinal development and use

Early in American judicial history, various jurists attempted to form theories of natural rights and natural justice that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.

Early republic origins

The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century. The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil War, the state courts — at that time ungoverned by the Fifth Amendment — were the arenas in which this struggle was carried out. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Indeed, abolitionists and others argued both before and after "Scott" that the Due Process Clause actually prohibited the federal government from recognizing slavery. Additionally, the first appearance of substantive due process as a concept appeared earlier in the case of Bloomer v. McQuewan, 55 U.S. 539 (1852).

The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, in 1856, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property."[13] However, the rationale of Wynehamer was subsequently rejected, in 1887, by the U.S. Supreme Court.[14] Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process.[15] But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process."[16]

Another important pre-Civil-War milestone in the history of due process was Daniel Webster's argument as counsel in Dartmouth College v. Woodward, that the Due Process Clause forbids bills of attainder and various other types of bad legislation.[17] Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it,[18] and the U.S. Supreme Court would later contradict Webster's rationale.[19]

Given the preceding jurisprudence regarding due process, Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott.

Later development

Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the seminal Slaughter-House Cases. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s.

Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although "economic due process" restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.

Privacy, which is not mentioned in the Constitution, was at issue in Griswold v. Connecticut, wherein the Court held, in 1965, that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment which protects freedom of expression, Third Amendment which protects homes from being used by soldiers, and Fourth Amendment which provides security against unreasonable searches. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold.[20]

The Supreme court also recognized a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters, the Supreme Court said, in 1925:

We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.[21]

Some justices have argued, however, that a substantive process claim may not be necessary in cases of this type, as it is also possible that those laws might be deemed to violate "First Amendment principles." Justice Kennedy speculated, in 2000, in Troxel v. Granville.[10] that Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.[22]

The right to marry a person of a different race was addressed in Loving v. Virginia,[23] in which the Court said, in 1967, that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g., a right to same-sex marriage).[24] A right to have children was addressed in Skinner v. Oklahoma,[25] but the Court in Skinner, in 1942, explicitly declined to base its decision on due process, instead citing the Equal Protection Clause since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska, in 1923, with two justices dissenting,[26] and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times.[10] Laws that "shock the conscience" of the Court were generally deemed unconstitutional, in 1952, in Rochin v. California, though concurring Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's ban on self-incrimination.[27] The Court in O'Connor v. Donaldson[28] in 1975, said that due process is violated by confining a non-dangerous mentally ill person who is capable of surviving safely in freedom, and Chief Justice Burger's concurring opinion noted that such confinement may also amount to "punishment" for being mentally ill, in violation of the interpretation of the Eighth Amendment in Robinson v. California. Freedom from excessive punitive damages was deemed to be a due process right in BMW v. Gore, in 1996, though four justices disagreed.[29] The Court in Cruzan v. Missouri decided, in 1990, that due process is not violated when a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."[30]

Criticisms of substantive due process

Criticisms of the doctrine continue as in the past. Critics argue judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g., as in the Dred Scott case), or argue that judges are addressing substance instead of process.

Justice Oliver Wendell Holmes, Jr., a proponent of legal realism, worried that the Court was overstepping its boundaries and wrote, in 1930, in one of his last dissents:[31]

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.

Originalists, such as Supreme Court Justice Clarence Thomas, who rejects the substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation"[32] or an "oxymoron."[33] Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.

Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland[34] and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.

The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Stephen Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. Critics charge that such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.

Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."[35]

Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.

The perceived scope of the Due Process Clause was originally different from what it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause."[36] The Thirteenth Amendment ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."[37]

Judicial review of substantive due process violations

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used.[38] In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.

When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.[39]

There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”[40]


  1. ^ U.S. Const., amend. V.
  2. ^ U.S. Const., amend. XIV.
  3. ^
  4. ^ a b c
  5. ^
  6. ^ a b c
  7. ^ Palko v. Connecticut, 302 U.S. 319 (1937)
  8. ^
  9. ^ Moore v. City of East Cleveland, 431 U.S. 494 (1977), 503 (opinion of Powell J.)
  10. ^ a b c Troxel v. Granville, 530 U.S. 57, 65 (2000), (Kennedy, J., dissenting): "Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion."
  11. ^ Williams, George. “The Federal Parliament and the Protection of Human Rights”, Research Paper 20 1998-99, Parliament of Australia (1999): “nations that had relied upon the common law tradition to protect rights…have subsequently passed statutory Bills of Rights. For example, the United Kingdom Parliament has enacted the Human Rights Act 1998 (UK), while the New Zealand Legislature has passed the New Zealand Bill of Rights Act 1990.... Parliament might move to protect a few core rights that are obviously regarded as basic and fundamental to Australian democracy. This should not include rights such as ‘due process of law’ in the Fifth and Fourteenth Amendments to the United States Constitution, which has a highly developed meaning in the United States context but no resonance in Australia.”
  12. ^ New York Bill of Rights (1787)
  13. ^ Wynehamer v. New York, 13 N.Y. 378, 418 (N.Y. 1856)
  14. ^ Mugler v. Kansas, 123 U.S. 623 (1887), at 657, 669.
  15. ^ Murray v. Hoboken Land, 59 U.S. 272 (1855)
  16. ^ Hurtado v. California, 110 U.S. 516 (1884)
  17. ^ Dartmouth College v. Woodward, 17 U.S. 518 (1819). Webster argued to the Supreme Court as follows: "The meaning [of the phrase 'law of the land'] is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules which govern society. Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land."
  18. ^ Dartmouth College v. Woodward, 1 N. H. 111, 129 (1817): "[H]ow a privilege can be protected from the operation of a law of the land, by a clause in the [state] constitution, declaring that it shall not be taken away, but by the law of the land, is not very easily understood."
  19. ^ Hurtado v. California, 110 U.S. 516 (1884): "[B]ills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land."
  20. ^ Griswold v. Connecticut, 381 U.S. 479 (1965): “I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government.”
  21. ^ Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  22. ^ Graham v. Connor, 490 U.S. 386 (1989). Also see United States v. Lanier, 520 U.S. 259 (1997): “Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”
  23. ^ Loving v. Virginia, 388 U.S. 1 (1967)
  24. ^ Lis Wiehl, “Protecting Marriage — The Next Battle”, Fox News.
  25. ^ Skinner v. Oklahoma, 316 U.S. 535 (1942)
  26. ^ Meyer v. Nebraska, 262 U.S. 390 (1923). The dissents of Holmes and Sutherland can be found in the companion case of Bartels v. Iowa, 262 U.S. 404 (1923).
  27. ^ Rochin v. California, 342 U.S. 165 (1952)
  28. ^ O'Connor v. Donaldson, 422 U.S. 563 (1975)
  29. ^ BMW v. Gore, 517 U.S. 559 (1996)
  30. ^ Cruzan v. Missouri, 497 U.S. 261 (1990)
  31. ^ Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
  32. ^ Chicago v. Morales, 527 U.S. 41 (1999), (Scalia, J., dissenting)
  33. ^ U.S. v. Carlton 512 U.S. 26 (1994), (Scalia, J., concurring)
  34. ^ Moore v. East Cleveland, 431 U.S. 494, 543 (1977), (White, J., dissenting).
  35. ^ University of Michigan v. Ewing, 474 U.S. 214 (1985) quoting Moore v. East Cleveland, 431 U.S. 494, 543 (1977) (White, J., dissenting).
  36. ^ Robert Cover, Justice Accused 157 (Yale Univ. Press 1975)
  37. ^ Abraham Lincoln, First Inaugural Address (Mar. 4, 1861)
  38. ^ See, e.g., Adarand Constructors v. Peña, 515 U.S. 200 (1995); Sugarman v. Dougall, 413 U.S. 634 (1973); Sherbert v. Verner, 374 U.S. 398 (1963).
  39. ^ See, e.g., Romer v. Evans, 517 U.S. 620 (1996); City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985); Zobel v. Williams, 457 U.S. 55 (1982); United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973).
  40. ^ Shaman, Jeffrey. [1] Constitutional Interpretation: Illusion and Reality] (Greenwood 2001).

Further reading

  • Katz, Claudio, “Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era,” Law and History Review, 31 (May 2013), 275–323.
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