Substantive due process
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent.[1] In 2022, Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.[2]
Not to be confused with Procedural due process.
Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law".[3] Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice of why a party is required to appear before a court or other governmental body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings.[3] In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, even if the processes of enactment and enforcement were actually fair.[3]
The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952 Supreme Court opinions had mentioned it twice.[4] The term "substantive due process" itself is commonly used in two ways: to identify a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses.[5]
Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope.[5] Critics of substantive due process decisions usually assert that such decisions should be left to the purview of more politically-accountable branches of government.[5]
The courts have viewed the Due Process Clause and sometimes other clauses of the Constitution as embracing the fundamental rights that are "implicit in the concept of ordered liberty".[6] The rights have not been clearly identified and the Supreme Court's authority to enforce the unenumerated rights is unclear.[7] Some of the rights have been said to be "deeply rooted" in American history and tradition; that phrase was used for rights related to the institution of the family.[8]
The courts have largely abandoned the Lochner era approach (c. 1897–1937), when substantive due process was used to strike down minimum wage and labor laws to protect freedom of contract. Since then, the Supreme Court has decided that the Constitution protects numerous other freedoms, even if they are not in the text. If the federal courts' doctrine of substantive due process did not protect them, they could nevertheless be protected in other ways; for example, other provisions of the state or federal constitutions[9] or legislatures[10] protect some rights.
Today, the Supreme Court provides special protection for three types of rights under substantive due process in the Fourteenth Amendment – an approach which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4:
The Supreme Court usually looks first to see whether the right is a fundamental right by examining whether it is deeply rooted in American history and traditions. If 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, the law is then held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny and asks whether the law is necessary to achieve a compelling state interest and whether the law is narrowly tailored to address that interest.
Judicial review[edit]
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts now use two forms of scrutiny or judicial review. The inquiry balances the importance of the governmental interest being served and the appropriateness of the 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.[38] To pass strict scrutiny, the law or the act must be both narrowly tailored and the least restrictive means of furthering a compelling government interest.
If the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used, which determines whether a law or act is rationally related to a legitimate government interest. The government's goal must be something that it is acceptable for the government to pursue. The legislation must use reasonable means to the government's goals but not necessarily the best. Under a rational basis test, the burden of proof is on the challenger so laws are rarely overturned by a rational basis test.[39]
There is also a middle level of scrutiny, called intermediate scrutiny, but it is used primarily 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."[40] To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest.