Substantive Due Process

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Substantive Due Process

The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties. By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard.

The Due Process Clause provides that no person shall be "deprived of life, liberty, or property without due process of law." When courts face questions concerning procedural due process, the controlling word in this clause is process. Courts must determine how much process is due in a particular hearing to satisfy the fairness requirements of the Constitution. When courts face questions concerning substantive due process, the controlling issue is liberty. Courts must determine the nature and the scope of the liberty protected by the Constitution before affording litigants a particular freedom.

Historical Development

The concept of due process has its roots in early English Law. In 1215 Magna Charta provided that no freeman should be imprisoned, disseised, outlawed, exiled, or destroyed, unless by the "law of the land." As early as 1354 the words "due process of law" were used to explain the protections set forth in Magna Charta. By the end of the fourteenth century, "law of the land" and "due process of law" were considered virtually synonymous in England. According to the seventeenth-century English jurist Sir Edward Coke, "due process of law" and "law of the land" possessed both substantive and procedural qualities. Substantively, Coke believed that the liberty to pursue a livelihood, the right to purchase goods, and the right to be free from anti-competitive practices were all protected by the "law of the land" and "due process of law." Procedurally, Coke associated these terms with indictment by Grand Jury and trial by petit jury.

When the Founding Fathers drafted the Fifth Amendment, it was unclear whether the Due Process Clause possessed any substantive qualities. Some prominent Americans, including Alexander Hamilton, understood the Due Process Clause to provide only procedural safeguards. Several states, however, followed the English practice of equating due process with the substantive protections offered by statutes and the Common Law. This divergent understanding of due process continues today. During the first 60 years after the ratification of the Constitution, the Due Process Clause was confined to a procedural meaning. Over the next 140 years, however, due process of law took on a pervasive substantive meaning.

The year 1856 marked the introduction of substantive due process in U.S. Jurisprudence. In that year the U.S. Supreme Court faced a constitutional challenge to the Missouri Compromise of 1820, a federal law that abolished Slavery in the territories. Under Missouri law, slaves who entered a free territory remained free for the rest of their lives. When a slave named Dred Scott returned to Missouri after visiting the free territory in what is now Minnesota, he sued for emancipation. Denying his claim, in dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), the Supreme Court ruled that the Due Process Clause protects the liberty of certain persons to own African American slaves. Because the Missouri Compromise deprived slave owners of this liberty in the territories, the Supreme Court declared it invalid.

After Dred Scott the doctrine of substantive due process lay dormant for nearly half a century. In lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Supreme Court reinvigorated the doctrine by invalidating a state law that regulated the number of hours employees could work each week in the baking industry. Maximum hour laws, the Court ruled, interfere with the liberty of contract guaranteed by the Due Process Clause. The Court said that the liberty of contract allows individuals to determine the terms and conditions of their employment, including the number of hours they work during a given period.

Over the next 32 years, the Supreme Court relied on Lochner in striking down several laws that interfered with the liberty of contract. Most of these laws were enacted pursuant to the inherent police powers of state and federal governments. Police powers give lawmakers the authority to regulate health, safety, and welfare. For example, in Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), the Supreme Court invalidated a Minimum Wage law that had been enacted by the federal government pursuant to its police powers. Minimum wage laws, the Court said, violate the liberty of contract guaranteed to workers by the Due Process Clause.

By 1936 the doctrine of substantive due process had grown increasingly unpopular. The Court had invoked the doctrine to strike down a series of federal laws enacted as part of President franklin d. roosevelt's New Deal, an economic stimulus program aimed at ameliorating the worst conditions of the Great Depression. On February 5, 1937, Roosevelt announced his court-packing plan, a proposal designed to enlarge the Supreme Court by enough justices to give the Executive Branch control over the federal judiciary. One month later the Supreme Court released its decision in west coast hotel co. v. parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937).

In West Coast Hotel the Supreme Court upheld a Washington State minimum wage law over due process objections. Although the Court did not completely abandon the doctrine of substantive due process, it circumscribed its application. Because liberty of contract is not specifically mentioned in any provision of the federal Constitution, the Court said, this liberty must yield to competing government interests that are pursued through reasonable means. West Coast Hotel precipitated the onset of modern substantive due process analysis.

Modern Analysis

Since 1937 the Court has employed a two-tiered analysis of substantive due process claims. Under the first tier, legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to heightened judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose.

The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as "selective incorporation," the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have "selectively incorporated" the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. Legal History. The word liberty cannot be defined by a definitive list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from Arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination.

These interests often are grouped to form a general right to privacy, which was first recognized in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where the Supreme Court struck down a state statute forbidding married adults from using Birth Control on the ground that the law violated the sanctity of the marital relationship. In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a Penumbra of privacy, which serves to insulate certain behavior from governmental coercion or intrusion. According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone or breathing space for those freedoms that are constitutionally enumerated.

Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons. In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the decision of whether to bear or beget a child. Eisenstadt foreshadowed the decision in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an Abortion during the first trimester of pregnancy without state interference. Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman's right to terminate her pregnancy (webster v. reproductive health services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]).

The liberty interest protected by the Due Process Clause places other substantive limitations on legislation regulating intimate decisions. For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 [1925]). Parents may not be compelled by the government to educate their children at public schools without violating principles of substantive due process. The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordinances that limit occupation of particular dwellings to immediate relatives (Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]).

During the 1990s the Supreme Court was asked to recognize a general right to die under the doctrine of substantive due process. Although the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of competent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state. Once it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition.

The U.S. Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but terminally ill, patients to hasten their deaths by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [1996]). In washington v. glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right to assisted suicide.

The liberty interest recognized by the doctrine of substantive due process permits individuals to lead their lives free from unreasonable and arbitrary governmental impositions. Nevertheless, this liberty interest does not require the absence of all governmental restraint. Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while noneconomic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable.

The U.S. Supreme Court continues to revisit the concept of substantive due process. In 2003 the Supreme Court was asked to review the constitutionality of a Texas statute criminalizing homosexual Sodomy. The statute made it a misdemeanor for a person to engage in "deviate sexual intercourse" with another individual of the same sex, but did not prohibit such conduct when undertaken with a person of the opposite sex. The defendant, an adult male, was arrested for violating the statute by engaging in consensual homosexual relations in the privacy of his home. The Court found that Texas Penal Code section 21.06 violated substantive due process by creating this double standard governing the legality of oral and anal sex between heterosexual and homosexual partners. Lawrence v. Texas, 539 U.S.___, 123 S.Ct. 2472, 156 L.Ed. 2d 508 (U.S., Jun 26, 2003). Justice anthony kennedy wrote the 6–3 decision.

Overruling a 17-year-old precedent, Kennedy said that history and tradition are the starting point, but not in all cases the ending point, of substantive due process inquiry. In Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d 140 (1986), which rejected a claim advocating recognition for an almost identical substantive due process liberty interest, Kennedy maintained that the Court had failed to appreciate the nature and scope of the liberty interest at stake. "To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward [in that case], just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," Justice Kennedy explained. Although "[t]he laws involved in Bowers and here are … statutes that purport to do no more than prohibit a particular sexual act…. [t]heir penalties and purposes … have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home," the Court continued. The statutes in question "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals."

The deficiencies in Bowers became even more apparent in the years following its announcement, Justice Kennedy observed. The 25 states with laws prohibiting sodomy in Bowers had been reduced to 13 by 2003, and four of those 13 states applied their laws only against homosexual conduct. But even in the states where homosexual sodomy is proscribed, Kennedy emphasized, there is a pattern of nonenforcement with respect to consenting adults acting in private. Thus, the Court concluded that homosexuals enjoy a constitutionally protected liberty under the Due Process Clause and that liberty gives them a right to engage in private consensual sexual activity without intervention of government.

Further readings

Bridegam, Martha. 2003. The Right to Privacy. New York: Chelsea House.Garrow, David J. 1998. Liberty and Sexuality: The Right to Privacy and the Making of Roe vs. Wade. Berkeley: Univ. of California Press.

Keynes, Edward. 1996. Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process. University Park: Pennsylvania State Univ. Press.

Krotoszynski, Ronald J., Jr. 2002. "Expropriatory Intent: Defining the Proper Boundaries of Substantive Due Process and the Takings Clause." North Carolina Law Review 80 (March).

Phillips, Michael J. 2001. The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Westport, Conn.: Praeger.

Riggs, Robert E. 1990. "Substantive Due Process in 1791." Wisconsin Law Review (July-August).

Rubin, Peter J. 2003. "Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights." Columbia Law Review 103 (May).


Death and Dying; Due Process; Incorporation Doctrine; Labor Law; Quinlan, In re; Rational Basis Test; Strict Scrutiny; Unenumerated Rights.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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