Substantive due process holds that the Due Process Clauses protect certain liberties so strongly that no amount of fair procedure can justify taking them away. The clause speaks of process, so the doctrine has always been contested. Its history runs from an era of aggressive protection for economic liberty, which the Court repudiated, through a line of cases protecting personal and family decisions, to a modern test that asks whether the claimed right is deeply rooted in the nation's history and tradition.
Rule
- Describe the right carefully. The analysis begins with a careful and precise statement of the asserted liberty interest.
- Is it fundamental? Ask whether it is deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty.
- Fundamental rights. Infringements get strict scrutiny, so the law must be narrowly tailored to a compelling interest.
- Everything else. Economic and social regulation gets rational basis review, and almost always survives.
- Incorporation. The same clause is the vehicle that applies most of the Bill of Rights against the states.
Leading cases
- Lochner v. New York: a maximum hours law for bakers was struck down as interfering with liberty of contract, an approach the Court later abandoned.
- Griswold v. Connecticut: a ban on the use of contraceptives by married couples was invalid, the Court finding a right of privacy in the Constitution's guarantees.
- Washington v. Glucksberg: the Court set out the modern two-step approach, requiring a careful description of the asserted right and a showing that it is deeply rooted in history and tradition.
- Dobbs v. Jackson Women's Health Organization: applying that approach, the Court held that the Constitution does not confer a right to abortion and overruled its earlier decisions on the point.
Where students go wrong
The first mistake is confusing this with procedural due process. Substantive due process asks whether the government may do this at all. Procedural due process asks what hearing is owed before it does.
The second is describing the right at the wrong level of generality. A broad description makes almost anything look traditional, and a narrow one makes almost nothing look traditional. Courts fight over exactly this, so address it directly.
The third is ignoring equal protection. Many claims can be framed either way, and the strongest answers argue both, because the tiers of scrutiny and the framing differ.
FAQ
What is the difference between substantive and procedural due process?
Substantive due process limits what the government may do. Procedural due process governs how it must do it, meaning notice and an opportunity to be heard.
What is the Lochner era?
A period in which the Court used due process to invalidate economic regulation on liberty of contract grounds. It ended in the late 1930s and is now treated as a cautionary example.
What is incorporation?
The process by which the Due Process Clause of the Fourteenth Amendment makes most of the Bill of Rights binding on the states, one provision at a time.
Related terms
Working through this in your own casebook takes longer than reading it here. Syllume starts from your syllabus and turns each assigned case into a brief you can study from.