Due Process Clause (Substantive)
What is the Due Process Clause (Substantive)?
The Due Process Clauses of the Fifth and Fourteenth Amendments protect certain fundamental rights from government interference regardless of procedures used. Fundamental rights receive strict scrutiny; other liberty interests receive rational basis review.
Definition
Substantive Due Process is a doctrine derived from the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states), which provides that no person shall be deprived of life, liberty, or property without due process of law. Despite the textual focus on process, the Supreme Court has interpreted the clause to protect certain substantive rights from government interference, regardless of the procedural protections afforded.
The analysis proceeds in two steps. First, the court determines whether the right at issue is a fundamental right -- one that is deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty. If the right is fundamental, the government must satisfy strict scrutiny, meaning the law must be narrowly tailored to serve a compelling government interest. If the right is not fundamental, rational basis review applies, and the law will be upheld if it is rationally related to a legitimate government interest.
Fundamental rights recognized under substantive due process include the right to marry, the right to procreate, the right to custody of one's children, the right to contraception, the right to bodily integrity, and the right to refuse unwanted medical treatment. The doctrine was notably applied in Griswold v. Connecticut (1965), Lawrence v. Texas (2003), and Obergefell v. Hodges (2015). The doctrine remains controversial, as critics charge that it allows judges to impose unenumerated rights not found in the constitutional text. After Dobbs v. Jackson Women's Health Organization (2022), the Court signaled a more restrictive approach to recognizing new fundamental rights, emphasizing history and tradition.
Key Elements
- 1A government action must deprive a person of life, liberty, or property
- 2Determine whether the right at issue is fundamental (deeply rooted in history and tradition, implicit in ordered liberty)
- 3If fundamental, apply strict scrutiny: the law must be narrowly tailored to a compelling government interest
- 4If not fundamental, apply rational basis review: the law must be rationally related to a legitimate government interest
- 5The analysis applies to both federal (Fifth Amendment) and state (Fourteenth Amendment) government action
Landmark Cases
Griswold v. Connecticut
381 U.S. 479 (1965)
Recognized the right to marital privacy and contraception, establishing the foundation for substantive due process protection of privacy rights
Roe v. Wade
410 U.S. 113 (1973)
Recognized a fundamental right to abortion under substantive due process, later overruled by Dobbs v. Jackson (2022)
Lawrence v. Texas
539 U.S. 558 (2003)
Struck down anti-sodomy laws as violating the liberty interest protected by substantive due process
Obergefell v. Hodges
576 U.S. 644 (2015)
Recognized a fundamental right to same-sex marriage under both due process and equal protection
Dobbs v. Jackson Women's Health Organization
597 U.S. 215 (2022)
Overruled Roe v. Wade and held that the right to abortion is not deeply rooted in history and tradition, narrowing the scope of substantive due process
Exam Tips
- The threshold question is always whether the right is fundamental -- this determines the level of scrutiny
- After Dobbs, emphasize the history-and-tradition test: a right must be deeply rooted in the nation's history and implicit in ordered liberty to be fundamental
- Distinguish substantive due process (what the government can regulate) from procedural due process (how the government must act when depriving someone of a protected interest)
- Watch for exam questions asking whether a new or unenumerated right qualifies as fundamental
Common Mistakes to Avoid
- Confusing substantive due process with procedural due process -- substantive concerns the substance of the right, not the procedures used
- Assuming that rational basis review is always a rubber stamp -- while rarely fatal, it does require at minimum a legitimate government interest and rational connection
- Failing to update analysis after Dobbs, which narrowed the framework for recognizing fundamental rights under substantive due process
Memory Aid
Substantive DP = WHAT rights are protected. Procedural DP = HOW the government must act. Fundamental rights get strict scrutiny; everything else gets rational basis.