Substantive due process is a controversial and elusive concept in American law. In a series of posts I will address four questions. First, what is substantive due process? Second, when did substantive due process jurisprudence begin in American law? Third, when does the Supreme Court of the United States (SCOTUS) apply substantive due process? Fourth, what are the elements of a substantive due process claim?
This post answers the first question: What is substantive due process?
1 . Substantive due process protects fundamental rights
Substantive due process protects a person’s right to “liberty” without the government interfering, as long as the government can’t provide a compelling reason for the interference.
2. What is the source of substantive due process rights?
Substantive due process is derived from the due process clauses of the Fifth Amendment (for federal government) and the Fourteenth Amendment (for state governments).
3. Purpose:
To determine if a law’s substance is a fair and just infringement on fundamental rights, rather than just focusing on the process the government used to create the law.
4. Examples of protected rights:
The Supreme Court has interpreted substantive due process to protect rights not listed in the Bill of Rights, such as the right to privacy, marry, raise one’s children, and other rights. Many of these rights have become part of the culture wars in America.
5. Distinction from procedural due process:
Substantive due process asks if a law is justified and fair in its substance, whereas procedural due process asks if the government followed fair and correct procedures when taking action against someone
In conclusion, substantive due process is a legal principle in U.S. constitutional law that protects fundamental rights from government infringement, even if those rights are not explicitly listed in the Constitution. It requires that the government have a compelling reason before passing laws that interfere with these fundamental liberties, which are considered essential to “liberty” under the Fifth and Fourteenth Amendments. This differs from procedural due process, which focuses on the fairness of the procedures the government uses when depriving someone of life, liberty, or property