A Primer On Substantive Due Process

Procedural due process is that the law is fairly applied.

Substantive due process is that the law is fair.

"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights.

"Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . "

The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights.

However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process.

Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

This is an extremely significant idea because of how it greatly expands the power of judicial review exercised by the federal courts. This happens in two ways:

First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:

1. Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."

2. Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendment’s Due Process Clause.

Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights.

In the original U.S. Constitution itself, there are not that many express restrictions on the power of the states. Most are in Art. I § 10 and in Art. VI. The Bill of Rights was added in 1791. But by it own terms, applies only to the federal government. See Barron v. Baltimore, 7 Pet. 243 (1833). The Bill of Rights contains both substantive and procedural rights designed to limit the power of the federal government. After the adoption of the 14th Amendment in 1868, the Supreme Court determined that many of the procedural provisions of the Bill of Rights (like the Fourth and Fifth Amendments) would also be protected by the 14th Amendment’s Due Process Clause, which was directed at the states.

However, the Court also used the theory of Substantive Due Process to apply ("incorporate") many of the substantive provisions of the Bill of Rights (like the First Amendment) to the states as well. E.g. Gitlow v. NewYork, 268 U.S. 652 (1925). In the late 1800’s the Supreme Court also began to use Substantive Due Process to establish various substantive rights not actually articulated in the Constitution under the "Fundamental Rights" theory. See Lochner v. New York, 198 U.S. 45 (1905).

Later on, the Court would repudiate the "fundamental rights" version of Substantive Due Process as an infringement on the authority of state legislatures. See West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Ferguson v. Skrupa, 372 U.S. 726 (1963). In Griswold v. Connecticut, 381 U.S. 479 (1965), at least four of the seven votes that affirmed the right to privacy were based on the fundamental rights theory. This reliance continued in Roe and Casey. Even while different constitutional theories were advanced in Griswold, Roe and Casey to support the right to privacy all of them, directly or indirectly, rely on Substantive Due Process.

Critics of Substantive Due Process claim that it is not the laws it strikes down, but rather the theory itself which is "unconstitutional." They claim that it is a pure usurpation of power by the Court since they Court can’t use Judicial Review to strike down a state law unless the law is really contrary to the Constitution. Critics claim that "Substantive Due Process" is an oxymoron and that there is no way a reasonable person with a sixth grade grasp of grammar could read the "Due Process" Clause to assure anything but procedural rights. They say that when the Court uses judicial review to enforce these pseudo-Constitutional rights they are stealing the legitimate law-making power from the state legislatures.

Supporters of Substantive Due Process, on the other hand, point to its long history and its dynamic ability to defend basic human rights from infringement by the government. They argue that Substantive Due Process provides comprehensive nation-wide protection for all our most cherished rights, which might otherwise be at the mercy of state governments.

They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it.

Critics respond by saying that just because something is a basic human right does not make it a "Constitutional" right. Constitutional rights, by definition are enshrined in the Constitution.

Most Justices on the current Court support the theory to some extent or another, but there are grave differences as to how freely the Court should be willing to assert the Fundamental Rights theory that originally spawned the right to privacy.

While there actually are two slightly different "Due Process" clauses in the U.S. Constitution, one in the Fifth Amendment, applying to the federal government, and the second in the Fourteenth Amendment, applying to the states, it is the 14th Amendment’s Due Process Clause which is really important here, because it applies to the states. The Supreme Court has generally interpreted them to be identical in meaning. While substantive due process applies to both clauses, because it is the state law that is most relevant here, this treatment we will be speaking to the 14th Amendment clause in particular. It should be noted that there is a history of substantive due process in American federal and state jurisprudence well before the adoption of the Fourteenth Amendment in 1868.