Substantive due process
Encyclopedia
Substantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority. Under American jurisprudence, the avenues for use of this theory by courts are the Due Process Clauses of the Fifth and Fourteenth Amendments, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law." That is, substantive due process demarcates the line between, on the one hand, acts by persons of a public or private nature that courts hold are subject to public regulations or legislation, and on the other hand, acts that courts place beyond the reach of governmental regulation. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent.
SDP is to be distinguished from procedural due process (PDP). The distinction arises from the phrase "due process of law" (emphasis supplied). PDP aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial (e.g., the right to sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant evidence at hearings, etc.). In contrast, SDP aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority—that is, courts find the majority's enactment is not law, and cannot be enforced as such, regardless of how fair the process of enforcement actually is.
The term "substantive due process" was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. The term "substantive due process" itself is commonly used in two ways: first, to identify a particular line of case law; and second, to signify a particular political attitude toward judicial review
under the two Due Process Clauses.
Much SDP litigation involves legal challenges regarding unenumerated rights
which seek particular outcomes instead of merely contesting procedures and their effects; in successful cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.
The courts have largely abandoned the Lochner era
approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract
. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment
, which originated in United States v. Carolene Products Co.
, , footnote 4. Those three types of rights are:
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test
: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny
. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
and natural justice
that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power
" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
, the state courts — at that time ungoverned by the Fifth Amendment
— were the arenas in which this struggle was carried out. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford
. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Indeed, abolitionists and others argued both before and after "Scott" that the Due Process Clause actually prohibited the federal government from recognizing slavery. Additionally, the first appearance of substantive due process as a concept appeared earlier in the case of Bloomer v. McQuewan, .
The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property." However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court. Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process. But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process."
Another important pre-Civil-War milestone in the history of due process was Daniel Webster
's argument as counsel in Dartmouth College v. Woodward
, that the Due Process Clause forbids bills of attainder
and various other types of bad legislation. Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it, and the U.S. Supreme Court would later contradict Webster's rationale.
Given the preceding jurisprudence regarding due process, Chief Justice Taney
was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise
unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis
mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott.
Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although "economic due process" restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut
, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment
(protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan
had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment
(addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg
concurring in Griswold.
The Supreme court also recognized a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters
, the Supreme Court said:
Some justices have argued, however, that a substantive process claim may not be necessary in cases of this type, as it is also possible that those laws might be deemed to violate "First Amendment principles." Justice Kennedy
speculated in Troxel v. Granville
. that Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.
The right to marry a person of a different race was addressed in Loving v. Virginia
, in which the Court said that its decision striking down anti-miscegenation laws
could be justified either by substantive due process, or by the Equal Protection Clause
. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g., a right to gay marriage). A right to have children was addressed in Skinner v. Oklahoma
, but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause
since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska
, with two justices dissenting, and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times. Laws that "shock the conscience" of the Court were generally deemed unconstitutional in Rochin v. California
, though concurring Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's ban on self-incrimination. The Court in O'Connor v. Donaldson
said that due process is violated by confining a non-dangerous mentally ill person who is capable of surviving safely in freedom, and Chief Justice Burger's concurring opinion noted that such confinement may also amount to "punishment" for being mentally ill, in violation of the interpretation of the Eighth Amendment
in Robinson v. California
. Freedom from excessive punitive damages was deemed to be a due process right in BMW v. Gore, though four justices disagreed. The Court in Cruzan v. Missouri decided that due process is not violated when a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."
Oliver Wendell Holmes, Jr.
, a realist
, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:
Originalists
, such as Supreme Court Justice Clarence Thomas
, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia
, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White
, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland
and Roe v. Wade
, as well as his majority opinion in Bowers v. Hardwick
, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely
criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.
The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause
of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." The Thirteenth Amendment
ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln
put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."
. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny
—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review
is used. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.
There is also a middle level of scrutiny, called intermediate scrutiny
, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”
SDP is to be distinguished from procedural due process (PDP). The distinction arises from the phrase "due process of law" (emphasis supplied). PDP aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial (e.g., the right to sufficient notice, the right to an impartial arbiter, the right to give testimony and admit relevant evidence at hearings, etc.). In contrast, SDP aims to protect individuals against majoritarian policy enactments which exceed the limits of governmental authority—that is, courts find the majority's enactment is not law, and cannot be enforced as such, regardless of how fair the process of enforcement actually is.
The term "substantive due process" was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. The term "substantive due process" itself is commonly used in two ways: first, to identify a particular line of case law; and second, to signify a particular political attitude toward judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
under the two Due Process Clauses.
Much SDP litigation involves legal challenges regarding unenumerated rights
Unenumerated rights
Unenumerated rights are sometimes defined as legal rights inferred from other legal rights that are officiated in a retrievable form codified by law institutions, such as in written constitutions, but are not themselves expressly coded or "enumerated" among the explicit writ of the law. ...
which seek particular outcomes instead of merely contesting procedures and their effects; in successful cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.
Conceptual basics
The Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.The courts have largely abandoned the Lochner era
Lochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract
Freedom of contract
Freedom of contract is the freedom of individuals and corporations to form contracts without government restrictions. This is opposed to government restrictions such as minimum wage, competition law, or price fixing...
. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
, which originated in United States v. Carolene Products Co.
United States v. Carolene Products Co.
United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
, , footnote 4. Those three types of rights are:
- the rights enumerated in and derived from the first eight amendments in the Bill of RightsUnited States Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
(e.g., the Eighth AmendmentEighth Amendment to the United States ConstitutionThe Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
); - the right to participate in the political process (e.g., the rights of voting, association, and free speech); and
- the rights of “discrete and insular minorities.”
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Doctrinal development and use
Early in American judicial history, various jurists attempted to form theories of natural rightsNatural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...
and natural justice
Natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal system and the systems of other nations based on it. Whilst the term natural justice is often retained as a general concept, it has largely been replaced and extended by the more general "duty to act fairly"...
that would limit the power of government, especially regarding property and the rights of persons. Opposing "vested rights" were jurists who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document — not to the "unwritten law" of "natural rights". Opponents further argued that the "police power
Police power
In United States constitutional law, police power is the capacity of the states to regulate behavior and enforce order within their territory for the betterment of the general welfare, morals, health, and safety of their inhabitants...
" of government enabled legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
Early republic origins
The phrase substantive due process was not used until the twentieth century. But, the concept was arguably employed during the nineteenth century. The idea of substantive due process came in as a way to import natural law norms into the United States Constitution; prior to the Civil WarAmerican Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, the state courts — at that time ungoverned by the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
— were the arenas in which this struggle was carried out. Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Indeed, abolitionists and others argued both before and after "Scott" that the Due Process Clause actually prohibited the federal government from recognizing slavery. Additionally, the first appearance of substantive due process as a concept appeared earlier in the case of Bloomer v. McQuewan, .
The "vested rights" jurists saw in the "law of the land" and "due process" clauses of state constitutions restrictions on the substantive content of legislation. Those jurists were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law,' no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property." However, the rationale of Wynehamer was subsequently rejected by the U.S. Supreme Court. Other antebellum cases on due process include Murray v. Hoboken Land, which dealt with procedural due process. But, the rationale of Murray was subsequently characterized by the U.S. Supreme Court, in the case of Hurtado v. California, as not providing "an indispensable test" of due process."
Another important pre-Civil-War milestone in the history of due process was Daniel Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...
's argument as counsel in Dartmouth College v. Woodward
Dartmouth College v. Woodward
Trustees of Dartmouth College v. Woodward, 17 U.S. 518 , was a landmark United States Supreme Court case dealing with the application of the Contract Clause of the United States Constitution to private corporations...
, that the Due Process Clause forbids bills of attainder
Bill of attainder
A bill of attainder is an act of a legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a judicial trial.-English law:...
and various other types of bad legislation. Nevertheless, the U.S. Supreme Court declined in the Dartmouth case to address that aspect of Webster's argument, the New Hampshire Supreme Court had already rejected it, and the U.S. Supreme Court would later contradict Webster's rationale.
Given the preceding jurisprudence regarding due process, Chief Justice Taney
Roger B. Taney
Roger Brooke Taney was the fifth Chief Justice of the United States, holding that office from 1836 until his death in 1864. He was the first Roman Catholic to hold that office or sit on the Supreme Court of the United States. He was also the eleventh United States Attorney General. He is most...
was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise
Missouri Compromise
The Missouri Compromise was an agreement passed in 1820 between the pro-slavery and anti-slavery factions in the United States Congress, involving primarily the regulation of slavery in the western territories. It prohibited slavery in the former Louisiana Territory north of the parallel 36°30'...
unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." In Dred Scott, neither Taney nor dissenting Justice Curtis
Benjamin Robbins Curtis
Benjamin Robbins Curtis was an American attorney and United States Supreme Court Justice.Curtis was the first and only Whig justice of the Supreme Court. He was also the first Supreme Court justice to have a formal legal degree and is the only justice to have resigned from the court over a matter...
mentioned or relied upon the Court's previous discussion of due process in Murray, and Curtis disagreed with Taney about what "due process" meant in Dred Scott.
Later development
Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the watershed Slaughter-House Cases. Some of those arguments came to be accepted by the Court over time, imposing on both federal and state legislation a firm judicial hand on property and economic rights that was not removed until the crisis of the 1930s.Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, it has been charged that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts. Although "economic due process" restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation affecting intimate issues like bodily integrity, marriage, religion, childbirth, child rearing, and sexuality.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut
Griswold v. Connecticut
Griswold v. Connecticut, , was a landmark case in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives...
, wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights, such as the First Amendment (protecting freedom of expression), Third Amendment
Third Amendment to the United States Constitution
The Third Amendment to the United States Constitution is a part of the United States Bill of Rights. It was introduced on September 5, 1789, and then three quarters of the states ratified this as well as 9 other amendments on December 15, 1791. It prohibits, in peacetime, the quartering of...
(protecting homes from being used by soldiers), and Fourth Amendment (security against unreasonable searches). The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as Justice Harlan
John Marshall Harlan II
John Marshall Harlan was an American jurist who served as an Associate Justice of the Supreme Court from 1955 to 1971. His namesake was his grandfather John Marshall Harlan, another associate justice who served from 1877 to 1911.Harlan was a student at Upper Canada College and Appleby College and...
had argued in his concurring Griswold opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights as the majority opinion did in Griswold. Although it has never been the majority view, some have argued that the Ninth Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
(addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg
Arthur Goldberg
Arthur Joseph Goldberg was an American statesman and jurist who served as the U.S. Secretary of Labor, Supreme Court Justice and Ambassador to the United Nations.-Early life:...
concurring in Griswold.
The Supreme court also recognized a substantive due process right "to control the education of one's children" and void state laws mandating that all students attend public school. In Pierce v. Society of Sisters
Pierce v. Society of Sisters
Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, , was an early 20th century United States Supreme Court decision that significantly expanded coverage of the Due Process Clause in the Fourteenth Amendment to the United States Constitution. The case has been cited as a precedent in...
, the Supreme Court said:
Some justices have argued, however, that a substantive process claim may not be necessary in cases of this type, as it is also possible that those laws might be deemed to violate "First Amendment principles." Justice Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
speculated in Troxel v. Granville
Troxel v. Granville
Troxel v. Granville, 530 U.S. 57 , was a case in which the Supreme Court of the United States, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental...
. that Current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision when one is available.
The right to marry a person of a different race was addressed in Loving v. Virginia
Loving v. Virginia
Loving v. Virginia, , was a landmark civil rights case in which the United States Supreme Court, in a unanimous decision, declared Virginia's anti-miscegenation statute, the "Racial Integrity Act of 1924", unconstitutional, thereby overturning Pace v...
, in which the Court said that its decision striking down anti-miscegenation laws
Anti-miscegenation laws
Anti-miscegenation laws, also known as miscegenation laws, were laws that enforced racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage and sometimes also sex between members of different races...
could be justified either by substantive due process, or by the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
. Advocates of substantive due process have sought to extend Loving in order to establish other rights (e.g., a right to gay marriage). A right to have children was addressed in Skinner v. Oklahoma
Skinner v. Oklahoma
Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 , was the United States Supreme Court ruling which held that compulsory sterilization could not be imposed as a punishment for a crime, on the grounds that the relevant Oklahoma law excluded white-collar crimes from carrying...
, but the Court in Skinner explicitly declined to base its decision on due process, instead citing the Equal Protection Clause
Equal Protection Clause
The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"...
since the Oklahoma law required sterilization of some 3-time felons but not others. A substantive due process right of a parent to educate a young child (i.e. before ninth grade) in a foreign language was recognized in Meyer v. Nebraska
Meyer v. Nebraska
Meyer v. Nebraska, 262 U.S. 390 , was a U.S. Supreme Court case that held that a 1919 Nebraska law restricting foreign-language education violated the Due Process clause of the Fourteenth Amendment.-Context and legislation:...
, with two justices dissenting, and Justice Kennedy has mentioned that Meyer might be decided on different grounds in modern times. Laws that "shock the conscience" of the Court were generally deemed unconstitutional in Rochin v. California
Rochin v. California
Rochin v. California, 342 U.S. 165 , was a case decided by the Supreme Court of the United States that added behavior that "shocks the conscience" into tests of what violates due process...
, though concurring Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's ban on self-incrimination. The Court in O'Connor v. Donaldson
O'Connor v. Donaldson
O'Connor v. Donaldson, 422 U.S. 563 , was a landmark decision in mental health law. The United States Supreme Court ruled that a state cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by themselves or with the help of willing...
said that due process is violated by confining a non-dangerous mentally ill person who is capable of surviving safely in freedom, and Chief Justice Burger's concurring opinion noted that such confinement may also amount to "punishment" for being mentally ill, in violation of the interpretation of the Eighth Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
in Robinson v. California
Robinson v. California
Robinson v. California, 370 U.S. 660 , was a case in which the Supreme Court of the United States held that the use of civil imprisonment as punishment solely for the misdemeanor crime of addiction to a controlled substance was a violation of the Eighth Amendment's protection against cruel and...
. Freedom from excessive punitive damages was deemed to be a due process right in BMW v. Gore, though four justices disagreed. The Court in Cruzan v. Missouri decided that due process is not violated when a state applies "a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state."
Criticisms of substantive due process
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g., as in the Dred Scott case), or argue that judges are addressing substance instead of process.Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, a realist
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents:
Originalists
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
, such as Supreme Court Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland
Moore v. East Cleveland
Moore v. City of East Cleveland 431 U.S. 494 , is a United States Supreme Court case. The Court held 5-4 that an ordinance which restricted housing to a single family and defined the family as a nuclear family, rather than an extended family, was unconstitutional and a violation of the Due Process...
and Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
, as well as his majority opinion in Bowers v. Hardwick
Bowers v. Hardwick
Bowers v. Hardwick, , is a United States Supreme Court decision that upheld, in a 5-4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Seventeen years after Bowers v. Hardwick, the Supreme Court...
, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely
John Hart Ely
John Hart Ely is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.-Biography:Born in New York City, John Hart...
criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness, and was radically undemocratic because it allowed judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives.
The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by Supreme Court Justice Breyer, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences. However, such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, and thereby remove issues from the democratic process.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: "[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause is Amendment XIV, Section 1, Clause 2 of the United States Constitution. It states:Along with the rest of the Fourteenth Amendment, this clause became part of the Constitution on July 9, 1868....
of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority, either legislatively, or (where the legislature lacks the power) via constitutional amendments.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." The Thirteenth Amendment
Thirteenth Amendment to the United States Constitution
The Thirteenth Amendment to the United States Constitution officially abolished and continues to prohibit slavery and involuntary servitude, except as punishment for a crime. It was passed by the Senate on April 8, 1864, passed by the House on January 31, 1865, and adopted on December 6, 1865. On...
ultimately abolished slavery, and removed the federal judiciary from the business of returning fugitive slaves. But until then, it was "scarcely questioned" (as Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law."
Judicial review of substantive due process violations
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial reviewJudicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny
Strict scrutiny
Strict scrutiny is the most stringent standard of judicial review used by United States courts. It is part of the hierarchy of standards that courts use to weigh the government's interest against a constitutional right or principle. The lesser standards are rational basis review and exacting or...
—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review
Rational basis review
Rational basis review, in U.S. constitutional law, refers to a level of scrutiny applied by courts when deciding cases presenting constitutional due process or equal protection issues related to the Fifth Amendment or Fourteenth Amendment. Rational basis is the lowest level of scrutiny that a...
is used. Here a legitimate government interest is enough to pass this review. This means that the government's goal must simply be something that it is acceptable for the government to pursue. The means used by the legislation only have to be reasonable for getting to the government's goals; they need not be the best. Under a rational basis test, the burden of proof is on the challenger. Thus it is rare that laws are overturned after a rational basis test, although this is not unheard of.
There is also a middle level of scrutiny, called intermediate scrutiny
Intermediate scrutiny
Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review and strict scrutiny ....
, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.”