Jonah Patel
The US Constitution's Fifth and Fourteenth Amendments guarantee due process of law before the government may deprive someone of life, liberty, or property. While the concept of substantive due process arguably existed in the 19th century, the phrase itself was not used until the 20th century. Substantive due process is a principle in US constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the Constitution. The Supreme Court has interpreted substantive due process to include the right to privacy, the right to work in an ordinary job, the right to marry, and the right to raise one's children.
| Characteristics | Values |
|---|---|
| The basis for incorporation | Substantive due process regarding substantive rights enumerated elsewhere in the Constitution |
| The role of the Supreme Court | Recognizes constitutionally-based liberty and considers laws seeking to limit liberty to be unenforceable or limited in scope |
| The scope of due process | Includes procedural due process, substantive due process, prohibition against vague laws, incorporation of the Bill of Rights, and equal protection under federal law |
| The interpretation of due process | A concern with procedure rather than substance |
| The purpose of due process | To protect substantive laws and certain fundamental rights from government interference |
| The application of due process | To federal and state governments, prohibiting the deprivation of "life, liberty, or property" without due process of law |
| The evolution of substantive due process | Began to take form in the 1930s, with the term being mentioned in Supreme Court opinions by 1950 |
| The criticism of substantive due process | Critics argue that liberties should be left to politically accountable branches of government |
| The historical context | Early American judicial history involved a struggle between natural rights and natural justice to limit government power |
| The judicial interpretation | Justice Clarence Thomas understands the Due Process Clause as not guaranteeing substantive rights, while Justice Stephen J. Field interprets it as protecting individuals from state legislation infringing on their privileges and immunities |
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What You'll Learn
Procedural due process
The Due Process Clause does not require de novo judicial review of agency proceedings and may not require judicial review of agency decisions in certain circumstances. However, it does require separation between the three branches of the federal government, allowing states to determine the extent to which their legislative, executive, and judicial powers are distinct. The Due Process Clause also does not prohibit states from delegating judicial functions to non-judicial bodies or conferring legislative powers on courts.
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Substantive due process rights
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference. The Fifth and Fourteenth Amendments prohibit the government from depriving any person of "life, liberty, or property without due process of law". The Fifth Amendment applies to federal action, while the Fourteenth Amendment applies to state action.
The concept of substantive due process has been interpreted to include the right to work in an ordinary job, to marry, and to raise one's children. The Supreme Court has also recognised a substantive due process right "to control the education of one's children", voiding state laws mandating that all students attend public school.
The term "substantive due process" is commonly used in two ways: first, to identify a particular line of case law, and second, to signify a particular attitude toward judicial review under the Due Process Clause. Critics of substantive due process decisions argue that these liberties should be left to the politically accountable branches of government.
The Supreme Court's first foray into defining which government actions violate substantive due process was during the Lochner Era in 1905, when the Court found a New York law regulating the working hours of bakers to be unconstitutional. The Court has since repudiated this interpretation, signalling that it would tread carefully in the area of unenumerated rights.
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Prohibition against vague laws
The Due Process Clause, found in the Fifth and Fourteenth Amendments to the United States Constitution, guarantees a variety of protections, including a prohibition against vague laws. This is known as the "void-for-vagueness" doctrine, which dictates that unduly vague penal statutes will be considered void based on due process principles.
The void-for-vagueness doctrine serves two purposes. Firstly, it ensures that all persons receive fair notice of what is punishable and what is not. Secondly, it helps prevent arbitrary enforcement of the laws and arbitrary prosecutions. For example, in FCC v. Fox Television Stations, Inc. (2012), the Supreme Court ruled that the FCC's failure to accurately define the words "obscene", "vulgar", "profane", and "indecent" meant that it was unconstitutionally vague to enforce restrictions based on these words.
The void-for-vagueness doctrine is derived from the due process doctrine, which requires that laws are written so that citizens can understand what conduct is punishable. This is particularly important in criminal law, where citizens must be able to determine what conduct is prohibited and what punishment may be imposed. For example, in Franklin v. State (Fla. 1971), the Florida Supreme Court ruled that the state's felony ban on sodomy was unconstitutionally vague because an "average person of common intelligence" could not reasonably know whether it included oral sex, anal sex, or both.
The void-for-vagueness doctrine also applies in the context of non-criminal cases. For instance, in United States v. Davis, the Court considered the constitutionality of a federal statute that created a sentence enhancement for offenders who used or carried a firearm during a federal "crime of violence or drug trafficking crime". The Court held that the statute was unconstitutionally vague because the term "crime of violence" was not sufficiently defined.
In conclusion, the void-for-vagueness doctrine is an important aspect of the Due Process Clause, ensuring that citizens receive fair notice of what conduct is punishable and preventing arbitrary enforcement of the laws.
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Incorporation of the Bill of Rights
The Incorporation Doctrine is a constitutional doctrine that applies parts of the first ten amendments of the United States Constitution (known as the Bill of Rights) to the states through the Due Process Clause of the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment prohibits the states from depriving their citizens of certain privileges and protections contained in the Bill of Rights. The Fourteenth Amendment, ratified in 1868, uses the same eleven words as the Fifth Amendment: "No person shall ... be deprived of life, liberty, or property, without due process of law." However, the Fourteenth Amendment's Due Process Clause explicitly applied to the states, unlike the Fifth Amendment.
The Supreme Court has consistently held that the Fifth Amendment's due process clause means substantially the same as the Fourteenth Amendment's due process clause, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. The Supreme Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed in the Constitution.
Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925), which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favoured the complete incorporation of the entire Bill of Rights. However, the Supreme Court supported selectively incorporating rights that it found essential to due process. Under selective incorporation, the Supreme Court incorporated certain parts of certain amendments, rather than incorporating an entire amendment at once.
Some examples of the application of the incorporation doctrine include:
- The Sixth Amendment jury-trial right has been incorporated against the states, meaning that only a jury can convict a defendant of a serious crime.
- States must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition.
- The right to indictment by a grand jury (not incorporated): Hurtado v. California, 110 US 516 (1884).
- Right against Self-Incrimination: Malloy v. Hogan, 378 US 1 (1964).
- Right to a Speedy Trial: Klopfer v. North Carolina, 386 US 213 (1967).
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Equal protection under the law
The Equal Protection Clause, located at the end of Section 1 of the Fourteenth Amendment, states that "No state shall [...] deny to any person within its jurisdiction the equal protection of the laws." This clause was enacted to validate the equality provisions of the Civil Rights Act of 1866, which guaranteed that all citizens, regardless of race and colour, had the right to equal protection by law. The Fourteenth Amendment marked a significant shift in American constitutionalism, imposing greater constitutional restrictions on the states than had existed before the Civil War.
The Equal Protection Clause has been central to several landmark Supreme Court decisions. For instance, in Brown v. Board of Education (1954), the Supreme Court relied on this clause to dismantle racial segregation. The Court held that racial segregation by the government violated the Constitution, even if the separate facilities provided were purportedly equally suitable. The Equal Protection Clause also formed the basis for the Supreme Court's decision in Obergefell v. Hodges, which legalised same-sex marriage.
The scope of the Equal Protection Clause is not limited to state and local governments. In Bolling v. Sharpe (1954), the Supreme Court held that the Due Process Clause of the Fifth Amendment requires equal protection under the laws of the federal government. This interpretation was further supported by the Slaughterhouse Cases, which determined that a citizen's privileges and immunities were ensured at the federal level.
The Equal Protection Clause has been crucial in protecting civil rights and ensuring that individuals can seek legal recourse when they believe their equal rights have been violated by the government. To bring a lawsuit against a governmental body, an individual must first prove that the governing body discriminated against them and that this discrimination resulted in actual harm. The court will then scrutinise the governmental action using one of three methods: strict scrutiny, intermediate scrutiny, or rational basis scrutiny.
While the Equal Protection Clause has been instrumental in advancing equality, it has also faced criticism and interpretation challenges. Some argue that racial preference programs may not effectively spread opportunity equally throughout society, and in some cases, they may even constrict opportunities for their intended beneficiaries. Additionally, the broad wording of the clause has led to debates about its precise meaning and scope. Despite these challenges, the Equal Protection Clause remains a powerful tool in the fight for equal protection under the law.
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Frequently asked questions
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution.
Substantive due process has been interpreted to include things such as the right to work in an ordinary job, the right to marry, and the right to raise one's children. The Supreme Court has also recognised a substantive due process right "to control the education of one's children", voiding state laws mandating students to attend public school.
The term "substantive due process" is not mentioned in the Constitution. However, it is derived from the Due Process Clause in the Fifth and Fourteenth Amendments, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property without due process of law".
The concept of substantive due process arguably existed in the 19th century, but the phrase was not used until the 20th century. In the early 20th century, the Court used the Due Process Clause to strike down economic regulations that sought to better the conditions of workers, on the grounds that they violated "freedom of contract". This approach was later abandoned, and the Court began to interpret the Due Process Clause as protecting other freedoms not explicitly mentioned in the Constitution, such as the "right to privacy".
Critics of substantive due process decisions argue that these liberties ought to be left to the more politically accountable branches of government. Professor Chemerinsky has criticised the concept as "elusive", and Justice Clarence Thomas has stated that the Fourteenth Amendment's Due Process Clause is "not a secret repository of substantive guarantees against unfairness".
