Substantive due process

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

Textual Responsive

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), 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.

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.

In contrast, liberal jurists prefer a formulation that protects all rights against "arbitrary restraint." This formulation protects "liberty's more transcendent dimensions" from encroachment by the majority, and is a more robust conception of due process. This formulation also has support in earlier cases. 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.

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. 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 federal minimum wage laws 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. It was fully overturned in West Coast Hotel.

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

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. 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.