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{{discrimlaw}}'''Substantive due process''' is the idea that the due process clause of
{{discrimlaw}}
== The Doctrine ==
===Usage of the Doctrine ===
'''Substantive due process''' is the idea that the due process clause of
the [[Fourteenth Amendment]] regulates not only the procedures due a
the [[Fourteenth Amendment]] regulates not only the procedures due a
citizen, before revoking a right, but also what rights may be revoked at
citizen, before revoking a right (procedural due process)<ref>Procedural due process is dealt with in the [[Mathews v. Eldridge]] framework.</ref>, but also what rights may be revoked at all.
all. It has become a legal theory tied uniquely in the area of
It has become a legal theory tied uniquely in the area of
[[fundamental rights]] jurisprudence - or, the protection of certain
[[fundamental rights]] jurisprudence - or, the protection of certain
inalienable, yet undefined constitutional rights. [[Antonin Scalia]]
inalienable, yet undefined constitutional rights. [[Antonin Scalia]]
sharply dissents from almost all cases upholding substantive due
sharply dissents from almost all cases upholding substantive due
process, believing that there are no fundamental rights if they are not
process, believing that there are no fundamental rights if they are not
defined by the constitution, or discoverable from American history.{{fact}}
defined by the constitution, or discoverable from American history.
===Standard of Review===
Substantive due process protects all rights from deprivation without [[rational basis review| rational basis]] - that is to say, the Government may not burden exercise of a right without having a reason for doing so. However, this reason may be pretextual or barely sufficient under rational basis review, and thus the protections of substantive due process for blanket rights are very weak indeed.<ref>[[Lawrence v. Texas]] may have changed this. See the article for a discussion.</ref>
Rights that are deemed "fundamental," though, may only be abridged if a compelling state interest exists, and the abridgment is narrowly tailored to suit that interest. In other words, to abridge a fundamental right, the state must pass "[[strict scrutiny]]."
The question of what rights are fundamental is essential to this doctrine, as the nature of the right determines if its abridgment receives cursory or fairly in-depth review. Defining rights as "fundamental" is a popular judicial sparring ground for conservative and liberal jurists. Different formulations have been used, based on the shifting tides of Supreme Court opinion, to define when a right is fundamental. Conservative jurists, like [[Antonin Scalia]] or [[William Rehnquist]], state that a right is only fundamental if it is deeply rooted in the nation's history, or in the text of the Constitution, or necessary to the foundations of "ordered liberty" in a civil society.<ref>Washington v. Glucksberg, Rehnquist, C.J., for the Court.</ref>
In contrast, liberal jurists prefer a formulation that protects all rights against "arbitrary restraint."<ref>Glucksberg, Stevens, J., concurring.</ref> This formulation protects "liberty's more transcendent dimensions" from encroachment by the majority, and is a more robust conception of due process.<ref>Lawrence v. Texas, Kennedy, J., for the Court.</ref> This formulation also has support in earlier cases.<ref>Poe v. Ulman, Harlan, J, dissenting.</ref> Also, liberal jurists suggest that a desire to enforce "the morality of some" upon the entirety of society compromises "the liberty of all," which is truly what the due process clause protects. This view is currently the dominant one, although the tenure of Chief Justice Roberts may see a renewed ascendancy of the weaker version.<ref>Planned Parenthood of SE Pennsylvania v. Casey, Opinion of the Court, Part I.</ref>
The standard of review defines the scope and utility of the doctrine. The "arbitrary restraint" formulation makes substantive due process a robust counter-majoritarian doctrine, designed to protect the rights and actions of the minority against abridgment by a majority eager to enforce its view of morality upon the nation. The alternative conception - the "tradition" based inquiry noted above in ''Glucksberg'' - rather makes the due process clause fairly weak in substantive protection, conceiving of the judiciary as too limited to serve as a robust counter-majoritarian branch.
== Lochner Era, and Before ==
== Doctrinal History==
=== Lochner Era, and Before ===
The justly reviled decision ''Scott v. Sanford''
The justly reviled decision ''Scott v. Sanford''
was the first to suggest that the Constitution protects certain rights
was the first to suggest that the Constitution protects certain rights
Another famous case picked up substantive due process as a constitutional "hook" before it became popularized in the 1970s - the famous case outlawing [[miscegenation]] statutes, ''Loving v. Virginia''. The Lovings,a mixed-race couple, sought to have their marriage accepted in their home state of Virginia, which, like many other Southern states, had outlawed mixed-race marriages. Although the Court invalidated this ban (forcing Virginia to recognize the Lovings' marriage and striking another blow against [[Jim Crow]] laws and racism) on equal protection grounds, the case included a line near the end, almost as an afterthought, describing the right to marriage as a substantive right, fundamental to human life, which the state could not lightly intrude upon.<ref>Loving v. Virginia, pincite to follow when less busy</ref> Due process, though, would not be picked up again by a discrimination case for another 40 years.<ref>Lawrence v. Texas, resting a decision to invalidate a Texas law criminalizing sodomy on substantive due process grounds, with a hint of equal protection rhetoric.</ref>
Another famous case picked up substantive due process as a constitutional "hook" before it became popularized in the 1970s - the famous case outlawing [[miscegenation]] statutes, ''Loving v. Virginia''. The Lovings,a mixed-race couple, sought to have their marriage accepted in their home state of Virginia, which, like many other Southern states, had outlawed mixed-race marriages. Although the Court invalidated this ban (forcing Virginia to recognize the Lovings' marriage and striking another blow against [[Jim Crow]] laws and racism) on equal protection grounds, the case included a line near the end, almost as an afterthought, describing the right to marriage as a substantive right, fundamental to human life, which the state could not lightly intrude upon.<ref>Loving v. Virginia, pincite to follow when less busy</ref> Due process, though, would not be picked up again by a discrimination case for another 40 years.<ref>Lawrence v. Texas, resting a decision to invalidate a Texas law criminalizing sodomy on substantive due process grounds, with a hint of equal protection rhetoric.</ref>
==Griswold v. Connecticut==
===Griswold v. Connecticut===
The case [[Griswold v. Connecticut]] emerged as a result of changing sexual mores, and a conservative reaction against this change. Specifically, Connecticut had forbidden the sale of contraception materials to married couples.
== The Roe Controversy, and its Progeny ==
=== The Roe Controversy, and its Progeny ===
== References ==
== References ==
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