Substantive Due Process
The Due Process Clauses of the Fifth and Fourteenth Amendments protect certain fundamental liberty interests from government interference regardless of the procedures used — requiring the government to justify infringement even when it acts through fair processes.
Elements / Test
Glucksberg two-part test for unenumerated rights:
- Identify the asserted right carefully and specifically (not broadly)
- The right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty”
If fundamental right found: strict scrutiny — government must show compelling interest + narrow tailoring.
If non-fundamental: rational basis review.
Exceptions and Edge Cases
Recognized fundamental rights (modern):
- Privacy/bodily autonomy: contraception (Griswold, Eisenstadt), abortion (trimester framework — Roe; undue burden — Casey; no federal constitutional right — Dobbs 2022), same-sex intimacy (Lawrence), same-sex marriage (Obergefell)
- Family: right to marry, right to direct children’s education (Meyer, Pierce)
Not fundamental (rational basis):
- Right to assisted suicide (Glucksberg)
- Economic rights (post-Lochner — no substantive due process for economic legislation)
Lochner era (discredited): 1905–1937, Court struck economic regulations as violating freedom of contract; West Coast Hotel ended the era.
Procedural vs. substantive: Procedural due process asks how the government acts; substantive asks whether government may act at all.
Policy Rationale
Protects liberty and dignity from majoritarian overreach. Critics (originalists) argue Court invents rights not in text; defenders argue Constitution has evolving meaning protecting fundamental dignity interests. Dobbs (2022) signaled skepticism of unenumerated rights analysis.
Key Cases
| Case | Rule |
|---|---|
| Lochner v. New York (1905) | (Discredited) Freedom of contract as fundamental right; maximum hours law invalid |
| Griswold v. Connecticut (1965) | Right to marital privacy; contraception ban unconstitutional |
| Roe v. Wade (1973) | Abortion right under privacy; trimester framework |
| Planned Parenthood v. Casey (1992) | Replaced trimester framework with undue burden standard |
| Lawrence v. Texas (2003) | Right to same-sex intimate conduct; Bowers overruled |
| Washington v. Glucksberg (1997) | No fundamental right to physician-assisted suicide; narrow framing of rights |
| Obergefell v. Hodges (2015) | Fundamental right to marry includes same-sex couples |
| Dobbs v. Jackson Women’s Health (2022) | Abortion not a fundamental right; Roe and Casey overruled |