Substantive due process

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Part of the series on
U.S. Discrimination Law
Standards of Review

Rational basis review
Intermediate scrutiny
Strict scrutiny

Other Legal Theories

Substantive due process
State action doctrine

Defining Moments in Law

The 14th Amendment
Plessy v. Ferguson
Brown v. Board of Education
Loving v. Virginia
U.S. v. Virginia
Romer v. Evans
Lawrence v. Texas

Modalities of Constitutional Law


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 citizen, before revoking a right (procedural due process),[1] but also what rights may be revoked at all.

It has become a legal theory tied uniquely in the area of fundamental rights jurisprudence - or, the protection of certain inalienable, yet undefined constitutional rights. Antonin Scalia sharply dissents from almost all cases upholding substantive due process, believing that there are no fundamental rights if they are not defined by the constitution, or discoverable from American history.

Standard of Review

Substantive due process protects all rights from deprivation without 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.[2]

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.[3]

In contrast, liberal jurists prefer a formulation that protects all rights against "arbitrary restraint."[4] This formulation protects "liberty's more transcendent dimensions" from encroachment by the majority, and is a more robust conception of due process.[5] This formulation also has support in earlier cases.[6] Also, liberal jurists suggest that a desire to enforce "the morality of some" upon the entirety of society compromises "the liberty of all". This view is currently the dominant one, although the tenure of Chief Justice Roberts may see a renewed ascendancy of the alternative view.[7]

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.

Doctrinal History

Lochner Era, and Before

The justly reviled decision Scott v. Sanford was the first to suggest that the Constitution protects certain rights (free use of "property," in this case) from intrusion by the government, even if constitutional safeguards had led to a procedurally "correct" taking.[8] Although Dred Scott was thankfully overturned by the Reconstruction Amendments, the seeds of substantive due process were sown in the constitutional landscape.

The doctrine was later, famously, picked up by the Court in Lochner, a decision which held that a New York State law regulating the hours and working conditions of bakery employees intruded too far into the "fundamental right" for an employee and an employer to freely contract. This fundamental right could not be abridged even by fair legislative processes. This line of jurisprudence - which came to be known as "economic" substantive due process - came to an abrupt end in the wake of the Great Depression, which forced a nationwide crisis of conscience in the doctrines of full and free laissez-faire, the philosophical underpinnings of Lochner.[9] It was fully overturned in West Coast Hotel.[10]

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.[11] Due process, though, would not be picked up again by a discrimination case for another 40 years.[12]

Griswold v. Connecticut

The case Griswold v. Connecticut emerged as a test case of a rarely-enforced 1879 law. Specifically, Connecticut had forbidden by statute the sale of contraception materials. Griswold, the petitioner-physician in the case, was indicted for selling condoms. The case came to the Supreme Court, where the Court struck down the Connecticut statute as abridging a fundamental right to privacy in the "marital bedroom."

Specifically, the Court stated, building on the "enumerated/implied" distinction set forth in early Supreme Court jurisprudence,[13] that the enumerated rights of the Bill of Rights emanate "penumbras," filled with subsidiary rights that give meaning to the enumerated rights, and without which the enumerated rights would have no meaning. The Court wrote that the Fourth Amendment guarantee of freedom from search & seizure, the First Amendment guarantee of freedom of expression, and others, all accumulated to prove a right to freedom from intrusion into a couple's intimate affairs. By regulating condoms, the state had gone too far, and run afoul of this fundamental right.

The Roe Controversy, and its Progeny

A special case of substantive due process jurisprudence are those rights which involve a degree of "third-party harm"; that is, the chance that someone or something else may suffer by exercise of the right. Depending on the nature of the right involved, and its balance against the possibility of harm, rights involving a third-party harm may be curtailed or completely engulfed by the potential for harm. The right to assisted suicide, for instance, is wholly subsumed by the potential for abuse.[14]

The right to choice in family planning, or, the right to an abortion, is another right carrying a possibility of a third-party harm . The Court held in Casey that this right, by nature of the balance of the harm against the right, would be managed by the "undue burden" test.[15] That is that the exercise of the right will not be unduly burdened. A burden that is "due," however, may be one that recognizes the state's interest in preventing abortions where avoidable. This is the ultimate synthesis of the Roe v. Wade debate, an attempt at a synthesis between the far-left view (abortion is a right that cannot be abridged) and the far-right view (abortion is always wrong) that allows for exercise of the right under limited circumstances. This framework fits neatly within Justice Stevens' view of fundamental rights law as an expression of the freedom from "arbitrary restraint": that is, the restraint upon abortion rights, where not "undue," are not "arbitrary."


  1. Procedural due process is dealt with in the Mathews v. Eldridge framework.
  2. Lawrence v. Texas may have changed this. See the article for a discussion.
  3. Washington v. Glucksberg, Rehnquist, C.J., for the Court.
  4. Glucksberg, Stevens, J., concurring.
  5. Lawrence v. Texas, Kennedy, J., for the Court.
  6. Poe v. Ulman, Harlan, J, dissenting.
  7. Planned Parenthood of SE Pennsylvania v. Casey, Opinion of the Court, Part I.
  8. I'll do the cites later
  9. See generally Casey v. Planned Parenthood
  10. cites later
  11. Loving v. Virginia, pincite to follow when less busy
  12. 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.
  13. See e.g. McCulloch v. Maryland.
  14. Washington v. Glucksberg.
  15. Casey, supra.