Substantive Due Process

Introduction

Substantive due process is the constitutional doctrine that protects certain fundamental rights from government interference, regardless of the procedural protections provided. Unlike procedural due process, which requires fair procedures when the government deprives a person of life, liberty, or property, substantive due process examines the substance of the law itself — whether it infringes on fundamental liberty interests. The doctrine derives from the Due Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the government from depriving any person of “life, liberty, or property, without due process of law.”

Substantive due process has been one of the most controversial doctrines in American constitutional law. Critics argue that it invites judicial activism by allowing courts to protect rights not explicitly mentioned in the Constitution. Supporters contend that it is essential to protecting individual liberty from majoritarian overreach and ensuring that fundamental rights are not subject to the whims of legislative majorities.

Historical Origins

The concept of substantive due process emerged in the nineteenth century. In Dred Scott v. Sandford (1857), Chief Justice Taney suggested that the Due Process Clause protected substantive rights, including the right to own slaves in federal territories — a holding that was repudiated by the Civil War and the Reconstruction Amendments.

The modern substantive due process doctrine developed in the Lochner era (1897-1937), when the Supreme Court used the Due Process Clause to protect economic liberties. In Lochner v. New York (1905), the Court struck down a state law limiting bakers’ working hours, holding that the law interfered with the liberty of contract protected by the Due Process Clause. The Court applied this economic substantive due process to invalidate numerous state and federal economic regulations.

The New Deal constitutional crisis ended the Lochner era. In West Coast Hotel Co. v. Parrish (1937), the Court upheld a state minimum wage law, signaling the end of economic substantive due process. Since then, the Court has applied rational basis review to economic regulations, deferring to legislative judgments about economic policy.

Fundamental Rights and Incorporation

The modern substantive due process doctrine focuses on protecting fundamental rights that are deeply rooted in American history and tradition and implicit in the concept of ordered liberty. In Palko v. Connecticut (1937), Justice Cardozo articulated the standard: fundamental rights are those “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”

Substantive due process is the vehicle for incorporation of the Bill of Rights against the states. The Supreme Court has held that most provisions of the Bill of Rights protect fundamental rights and are therefore applicable to the states through the Fourteenth Amendment’s Due Process Clause. Incorporation has been selective, with the Court determining on a case-by-case basis whether each right is fundamental.

Privacy and Autonomy Rights

In Griswold v. Connecticut (1965), the Court recognized a constitutional right to privacy, striking down a law prohibiting the use of contraceptives by married couples. Justice Douglas’s opinion located the right to privacy in the penumbras of specific Bill of Rights guarantees, while Justice Goldberg’s concurrence relied on the Ninth Amendment.

The right to privacy was extended in Eisenstadt v. Baird (1972) to unmarried individuals and in Carey v. Population Services International (1977) to minors. In Lawrence v. Texas (2003), the Court invalidated laws criminalizing same-sex sexual conduct, holding that the Due Process Clause protects the right of adults to engage in private intimate conduct.

Marriage has been recognized as a fundamental right. In Loving v. Virginia (1967), the Court struck down laws prohibiting interracial marriage. In Obergefell v. Hodges (2015), the Court held that the fundamental right to marry includes same-sex couples, requiring all states to recognize same-sex marriages.

Roe v. Wade and Dobbs v. Jackson

In Roe v. Wade (1973), the Court held that the Due Process Clause protects a woman’s right to choose to terminate a pregnancy. The Court established a trimester framework balancing the woman’s liberty interest against state interests in maternal health and potential life. Roe generated intense controversy and was modified but reaffirmed in Planned Parenthood v. Casey (1992).

In Dobbs v. Jackson Women’s Health Organization (2022), the Court overruled Roe and Casey, holding that the Constitution does not confer a right to abortion. Justice Alito’s majority opinion applied a history and tradition analysis, concluding that abortion is not deeply rooted in American history and tradition. The Court held that the authority to regulate abortion is returned to the people and their elected representatives.

Dobbs represented a significant shift in substantive due process methodology. The Court emphasized that fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” The decision suggested that other rights not deeply rooted in history may be at risk, though the Court expressly disclaimed any intention to disturb other substantive due process precedents.

The Right to Family Relationships

The Court has recognized fundamental rights relating to family relationships. In Meyer v. Nebraska (1923), the Court held that the liberty protected by the Due Process Clause includes the right to bring up children and to control their education. In Pierce v. Society of Sisters (1925), the Court struck down a law requiring children to attend public schools.

The right to parental control over children’s upbringing was reaffirmed in Troxel v. Granville (2000), holding that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. The right to family integrity includes the right to live together as a family and the right to maintain relationships with extended family members.

The Right to Bodily Integrity

The Due Process Clause protects the right to bodily integrity — the right to refuse unwanted medical treatment. In Cruzan v. Director, Missouri Department of Health (1990), the Court held that a competent person has a constitutionally protected right to refuse lifesaving hydration and nutrition. The Court allowed states to impose procedural requirements to ensure that an incompetent patient’s wishes are reliably determined.

The right to bodily integrity also includes the right to refuse vaccination, though the Court held in Jacobson v. Massachusetts (1905) that compulsory vaccination laws do not violate substantive due process because they are a reasonable exercise of state police power. Courts balance individual liberty interests against public health concerns.

The Right to Travel

The right to travel is a fundamental right protected by substantive due process. In Shapiro v. Thompson (1969), the Court struck down durational residency requirements for welfare benefits, holding that the right to travel interstate is fundamental and cannot be burdened absent a compelling state interest. The right to travel includes the right to enter and leave a state, the right to be treated as a welcome visitor, and the right to be treated equally after establishing residency.

Conclusion

Substantive due process protects fundamental rights that are deeply rooted in American history and tradition, even when those rights are not explicitly enumerated in the Constitution. The doctrine has been the basis for protecting rights of privacy, family relationships, bodily integrity, marriage, and travel. Substantive due process remains controversial, with debates about the appropriate methodology for identifying fundamental rights and the proper role of courts in protecting unenumerated liberties. The Dobbs decision signaled a potential narrowing of substantive due process, emphasizing history and tradition as the primary guide for identifying fundamental rights, leaving the doctrine’s future scope and application to continued judicial development.