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Substantive due process is the idea that the due process clause of                                       

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 (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.   

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.   

It has become a legal theory tied uniquely in the area of                                                 

It has become a legal theory tied uniquely in the area of                                                 

===Standard of Review===

===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>

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]]."   

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>

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>

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".   This view is currently the dominant one, although the tenure of Chief Justice Roberts may see a renewed ascendancy of the alternative view.<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.

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.

                                                                                                                

                                                                                                                

The doctrine was later, famously, picked up by the Court in ''Lochner'',                                       

The doctrine was later, famously, picked up by the Court in ''Lochner'',                                       

a decision which held that federal minimum wage laws intruded too far                                           

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                                         

into the "fundamental right" for an employee and an employer to freely                                         

contract.  This fundamental right could not be abridged even by fair                                           

contract.  This fundamental right could not be abridged even by fair                                           

===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 by statute the sale of contraception materials to married couples.  A married couple had received condoms from Griswold, the petitioner-physician in the case, who was indicted as an accomplice to the usage of contraceptives.  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."

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<refer>See e.g. McCulloch v. Maryland.</ref>, 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 conduct in the bedroom, the state had gone too far, and run afoul of this fundamental right.

Specifically, the Court stated, building on the "enumerated/[[Implied contract|implied]]" distinction set forth in early Supreme Court jurisprudence,<ref>See e.g. McCulloch v. Maryland.</ref> 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 ===

=== 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.<ref>Washington v. Glucksberg.</ref>

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.<ref>Washington v. Glucksberg.</ref>

The right to choice in family planning, or, the right to an abortion, is another third-party harm right.  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.<ref>Casey, supra.</ref>

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.<ref>Casey, supra.</ref> 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."

== References ==

== References ==

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