Understanding the Controversial Doctrine of Substantive Due Process

The Due Process Clauses of the U.S. Constitution, found in both the Fifth Amendment (applying to the federal government) and the Fourteenth Amendment (applying to state governments), prohibit the government from depriving any person of “life, liberty, or property, without due process of law.” At first glance, the phrase “due process” suggests a concern purely with *procedure*—ensuring fair notice and a hearing before a right is taken away. However, for well over a century, the U.S. Supreme Court has interpreted this clause to have a deeper, more profound meaning: the concept of Substantive Due Process (SDP).

SDP is the principle that there are certain fundamental rights and liberties—often unenumerated (not explicitly listed in the Constitution’s text)—that the government cannot infringe upon, regardless of the fairness of the procedures used. It demands that the government must have a sufficiently compelling justification for laws that restrict individual liberty. This judicial power to define fundamental rights has made SDP one of the most powerful and hotly debated doctrines in US Constitutional Law.

The Essential Distinction: Substantive vs. Procedural

To grasp SDP, it is vital to distinguish it from its counterpart, Procedural Due Process.

Aspect	Procedural Due Process	Substantive Due Process
Focus Question	Has the government followed the *proper steps*?	Does the government have a *sufficient reason* for the action?
Protection Type	Fairness of process (notice, hearing, impartial tribunal).	Protection of fundamental rights and liberties themselves.
Example	The right to be heard before your property is seized.	The right to raise your children as you see fit.

The Three Eras of Substantive Due Process Jurisprudence

1. The Era of Economic Liberty (The Lochner Era)

The Supreme Court’s first major foray into SDP came at the turn of the 20th century. During this time, the Court used the doctrine to protect economic liberties, most notably the Right to Contract. The quintessential case is Lochner v. New York (1905), where the Court struck down a state law limiting the working hours of bakers. The Court ruled that the public benefit of the law was insufficient to justify infringing upon the substantive due process right of the bakers to work under their own terms—a freedom of contract.

This “Economic SDP” was eventually rejected by the Court in 1937 in West Coast Hotel Co. v. Parrish, beginning an era of judicial deference to economic regulations, which continues today under the lenient Rational Basis Test.

2. The Modern Era: Protecting Fundamental Personal Rights

After the repudiation of economic SDP, the focus shifted dramatically to the protection of noneconomic, personal fundamental rights. The Court began defining liberties considered “deeply rooted in this Nation’s history and tradition,” which would receive the highest level of judicial scrutiny.

The Two-Tiered Scrutiny Framework

The standard of review a court applies determines whether a law survives an SDP challenge. The modern framework has two primary tiers:

Standard of Review	Applies When…	Government Must Prove…
Strict Scrutiny	The law infringes upon a Fundamental Right.	A Compelling State Interest, and the law is Narrowly Tailored to achieve that interest. (Very difficult to meet)
Rational Basis Test	The law affects a non-fundamental right (e.g., economic regulation).	The law is rationally related to a Legitimate Government Purpose. (Very easy to meet)

The Current State: Dobbs v. Jackson Women’s Health Organization

The 2022 Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization represents the most significant recent shift in SDP jurisprudence. In overruling Roe v. Wade (1973), which had recognized a constitutional right to abortion based on the right to privacy under the Fourteenth Amendment’s Due Process Clause, the Court fundamentally altered the application of SDP in one crucial area.

The Dobbs majority opinion reinforced a strict adherence to the “history and tradition” test, arguing that because the right to abortion was not considered a fundamental right at the time the Fourteenth Amendment was ratified, it is not constitutionally protected as an Unenumerated Right. While the Court stated that this ruling did not immediately affect other non-economic SDP rights (like contraception or marriage), the legal community continues to debate the ruling’s long-term implications for the stability of other rights protected under the same doctrine.

Summary: Key Takeaways on Substantive Due Process

1. SDP is a Check on Government Power: It limits what the government can do, not just *how* it does it, by protecting fundamental liberties from arbitrary interference.
2. Fundamental Rights Trigger Strict Scrutiny: For rights deemed “fundamental” (deeply rooted in history/tradition, e.g., marriage, parental rights), the government must provide a “compelling state interest” to justify its law.
3. The Doctrine is Contested: Critics argue it allows judges to impose their personal policy preferences by recognizing “Unenumerated Rights,” leading to contentious rulings like the now-overruled Roe v. Wade.
4. Economic vs. Personal Rights: The Court no longer uses SDP to protect economic regulations (*Lochner* is dead), but actively uses it to protect personal autonomy and relationship rights.

---

Frequently Asked Questions (FAQ)

What is the primary goal of Substantive Due Process?

Its primary goal is to prevent the government from enacting laws that are arbitrary or unreasonable, even if those laws are implemented with fair procedures. It acts as a shield for Fundamental Rights.

How does the Court determine if a right is “fundamental” for SDP purposes?

The current test requires the right to be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” If a right meets this test, Strict Scrutiny applies.

What was the significance of the Lochner Era?

The Lochner Era (1897–1937) was a period where the Supreme Court used SDP to strike down many economic regulations, protecting a perceived right to contract. This approach was later abandoned, moving the focus away from economic rights.

Does the Dobbs ruling mean all SDP-protected rights are now at risk?

The Dobbs ruling explicitly applied only to the right to abortion, stating that other rights like contraception (Griswold) and same-sex marriage (Obergefell) were not being addressed. However, the ruling’s strict reliance on the “history and tradition” test has caused legal debate over the long-term stability of other Unenumerated Rights.

What is the difference between the Due Process Clause of the Fifth and Fourteenth Amendments?

The language of the Due Process Clause is identical in both amendments, but the Fifth Amendment applies the requirements of due process to the federal government, while the Fourteenth Amendment applies them to the state governments.

***

Grasping the nuances of the Substantive Due Process Ruling is essential for understanding the scope of individual liberties in the United States. From the protection of the Right to Marry to the limits on government power, this doctrine is a living, breathing part of the Constitution.

Substantive Due Process, Fundamental Rights, Fourteenth Amendment, Due Process Clause, Strict Scrutiny, Unenumerated Rights, Lochner v. New York, Dobbs v. Jackson, Privacy Rights, Liberty Interest, US Constitutional Law, Procedural Due Process, Rational Basis Test, Supreme Court Ruling, Right to Marry, Right to Contract