Changes

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 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."

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 contract|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 condoms, 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 ===