What is substantive due process?

In the United States, the phrase “due process” refers to the basic rights a person or business has before a court rules that it must give up life, liberty, or property.  The phrase comes from the Fifth and Fourteenth Amendments to the Constitution, which state that “no person may be deprived of life, liberty, or property without due process of law.”  The issue of due process typically comes in one of two forms: procedural due process, which deals with how a case is brought, and substantive due process, which deals with rights related to “life, liberty, or property.”

According to some legal scholars, the first “substantive due process” case in the United States was the 1857 case of Dred Scott v. Sandford, in which the Supreme Court held that an enslaved person did not earn his freedom merely by being transported by his owner into a state that did not permit slavery.  In a sense, Dred Scott is a case about liberty versus property.  The Court did not, however, discuss the liberty or property issues very deeply in its decision.

Substantive due process law started developing more thoroughly in the 1930s, when cases began to be heard in which individuals argued that they should have certain “liberty” rights that are protected.  They argued that the “liberty” question was separate from the question whether the procedure in their cases was carried out correctly.  Beginning in the 1950s, courts, including the U.S. Supreme Court, began analyzing cases in these terms, striking down or limiting the impact of laws that seemed to infringe too harshly on the liberty rights of individuals.

When discussing substantive due process rights, the U.S. Supreme Court has described them as rights that are “implicit in the concept of ordered liberty,” a phrase first used in the 1937 case Palko v. Connecticut.  In 1938, the Supreme Court tried to clarify what it meant by rights that are “implicit in the concept of ordered liberty” in United States v. Carolene Products Co., in which the Court identified the following rights as falling under substantive due process:

  • the rights contained in the first eight amendments to the Constitution,
  • the rights that affect people’s ability to participate in the political process, including the rights to free speech, freedom of association, and voting, and
  • the rights of  “discrete and insular minorities.”

Today, when a substantive due process case comes before the Supreme Court, the Court asks whether the right being argued about in the case is a “fundamental right.”  The rights listed in Carolene Products Co. are often used as a guideline, but the Court may also ask whether the right is “implicit in the concept of ordered liberty” or “deeply rooted in the Nation’s history or traditions.”  If it is, the Court applies “strict scrutiny” when analyzing the law.  A law can only stand under “strict scrutiny” if it is narrowly tailored to serve a compelling state interest.  This test is so strict that some legal scholars have called it “strict in name, but fatal in fact,” and in fact, few laws ever survive strict scrutiny.

If the Court finds that the right being questioned in the case is not a “fundamental right,” it will apply a “rational basis” review in most cases.  Rational basis review asks if the law is rationally related in any way to a legitimate government purpose.  If it is, the Court will let it stand.  Just as “strict scrutiny” is a harsh standard, “rational basis” is generally understood to be a lenient one; if the Court can find any rational reason for the government to act as it did, it will usually let the law stand.

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