What is Substantive Due Process?

What Does Due Process Mean

In the United States, “substantive due process” is the name given to limits placed on the government’s ability to infringe certain core constitutional rights. These limits arise from the Fifth and Fourteenth Amendments to the U.S. Constitution. Substantive due process rights are those rights that are not specifically mentioned in any other part of the Constitution, but that The U.S. Supreme Court has said are “implicit in the concept of ordered liberty,” (Palko v. Connecticut, 302 U.S. 319 (1937).).

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Substantive due process. Image by lawliberty.org

While the phrase “substantive due process” was not used until the 1900s, U.S. judges debated whether “natural rights” limited the power of government as early as the 1800s. In the 1930s, the U.S. Supreme Court used the idea of substantive due process rights to strike down minimum wage laws and child labor laws, saying that these laws infringed on the substantive due process “freedom of contract.” (Lochner) Substantive due process is not usually used in this manner today. Rather, the U.S Supreme Court has concerned itself with substantive due process rights in three main areas: in the Bill of Rights, restrictions of the political process, and the rights of “discrete and insular minorities.” (Carolene Products)

In Griswold v. Connecticut, the U.S. Supreme Court first described a substantive due process right to privacy when it held that the government could not prohibit married couples from using contraceptives. (Griswold v. Connecticut, 381 U.S. 479 (1965)). Other recent substantive due process rights the Court has addressed include a right to marriage (Loving), a right to have children (Skinner), and a right to educate young children in a foreign language (Meyer v. Nebraska).

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When considering a substantive due process right, the Supreme Court first considers whether the right in question is a “fundamental right,” or a right deeply rooted in the country’s history and traditions. If the right is a “fundamental right,” the Court applies what is known as strict scrutiny: it asks whether there is a compelling state interest that is being met by violating the right, and if the violation is narrowly tailored to meet that interest. If the right is not a “fundamental right,” the Court applies rational basis review, which asks if the violation is rationally related to a legitimate government purpose.

Substantive due process should not be confused with procedural due process, which protects the right not to be “deprived of life, liberty, or property” without notice and an opportunity to be heard. (Fifth and Fourteenth Amendments).

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