Simone Lawson
Substantive due process is a concept in American law that has been described as elusive. It is not explicitly mentioned in the US Constitution, but it is derived from the Fifth and Fourteenth Amendments, which prohibit the government from depriving any person of life, liberty, or property without due process of law. The Supreme Court has interpreted these Amendments to protect certain fundamental rights from government interference, such as the right to privacy, the right to marry, and the right to raise one's children. The concept has evolved over time, with the Court sometimes being criticised for imposing its policy preferences on the nation.
| Characteristics | Values |
|---|---|
| The basis of substantive due process | The Due Process Clause and other clauses of the Constitution that embrace fundamental rights |
| The rights protected by substantive due process | Rights that are not listed in the Constitution but are deemed fundamental, such as the right to privacy, the right to marry, and the right to work in an ordinary job |
| The role of the Supreme Court | Interprets substantive due process, deciding which government actions violate it, and enforcing unenumerated rights |
| Criticisms of substantive due process | Critics argue that such decisions should be left to politically accountable branches of the government, and that the doctrine began with the infamous 1857 slavery case of Dred Scott v. Sandford |
| The evolution of substantive due process | The concept has evolved since the Lochner era, with the Supreme Court now focusing on personal and relational rights rather than economic rights |
| The application of substantive due process | Substantive due process is applied at the federal level through the Fifth Amendment and at the state level through the Fourteenth Amendment |
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What You'll Learn
The Lochner era
The Lochner-era courts stood in the way of a popular movement, basing their decisions on an abstract and formal understanding of equality between workers and employers. This understanding was inconsistent with the lived experience of most workers and soon faced a backlash from academics, politicians, and the judiciary. The Lochner era ended when the Court's tendency to invalidate labour and market regulations came into direct conflict with Congress's regulatory efforts in the New Deal. Since then, the Lochner era has been widely discredited as a product of a "bygone era" in legal history.
The causes of the Lochner era have been debated, with Cass R. Sunstein arguing that the Court believed market ordering under common law was part of nature and sought to preserve the natural distribution of wealth. Bernstein criticised this thesis, arguing that the Lochner era demonstrates the Justices' belief that Americans had fundamental unenumerated constitutional rights protected by the due process clause of the Fourteenth Amendment.
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Griswold v. Connecticut
The concept of substantive due process is not explicitly mentioned in the US Constitution. However, it has been interpreted from the Fifth and Fourteenth Amendments, which prohibit the government from depriving any person of "life, liberty, or property without due process of law". The interpretation of the latter part of the Fourteenth Amendment has been a highly controversial area of Supreme Court adjudication.
Griswold and Buxton intentionally violated the law by opening a birth control clinic in New Haven, Connecticut, in 1961, and were arrested and fined $100 each. They appealed their convictions to the Supreme Court, arguing that the Connecticut law violated the Fourteenth Amendment by infringing on the right of married couples to privacy. The Supreme Court ruled in their favour, striking down Connecticut's law by a vote of 7-2. The Court held that the Constitution protects "marital privacy" as a fundamental right, derived from the "'penumbras', or shadowy edges, of rights explicitly enumerated in the Bill of Rights", such as the First, Third, and Fourth Amendments.
The Griswold decision was significant in establishing the basis for the right to privacy with respect to intimate practices, interpreting the Constitution as protecting certain fundamental rights from government interference. This case is an example of substantive due process in action, where the Supreme Court recognised a constitutionally based liberty and invalidated a law that sought to limit that liberty. The decision was also notable for its rejection of the doctrine of substantive due process due to its association with the Fifth and Fourteenth Amendments, instead locating the right to privacy in the "penumbras" of other Amendments.
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Dred Scott v. Sandford
Dred Scott, an enslaved black man, was taken by his enslaver into Illinois, a free state, and also into free federal territory. Scott sued for freedom for himself and his family, based on his residence in free territory. The Court refused to grant Scott constitutional protections and rights because he was not a citizen. The Court held that the federal Missouri Compromise, which abolished slavery in the Upper Louisiana Territory, was unconstitutional because it deprived enslavers of their property rights in enslaved people without due process of law, which is forbidden under the Fifth Amendment.
Chief Justice Roger B. Taney, who wrote the majority opinion, suggested that the drafters of the Constitution viewed African-Americans as inferior and did not intend to extend them the right to citizenship. He argued that Congress had no authority to ban slavery from federal territories, and that doing so would violate the property rights of enslavers. Taney's opinion was later criticised as unsound, as the Constitution clearly granted Congress the power to ban slavery in the territories.
The decision effectively nationalised slavery, pushing back efforts for abolition and confirming that African-Americans were not citizens with constitutional protections. It played a significant role in the events leading up to the American Civil War four years later. The ruling was eventually overturned by the 13th and 14th Amendments to the Constitution, which abolished slavery and declared all persons born in the United States as citizens.
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Unenumerated rights
The concept of "unenumerated rights" is central to discussions of substantive due process in the US Constitution. This idea holds that certain liberties are so fundamental that they cannot be infringed upon, even if they are not explicitly listed or "enumerated" in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments is often invoked to protect these unenumerated rights from government interference.
The Supreme Court has played a significant role in interpreting and enforcing these unenumerated rights, recognising constitutionally based liberties and limiting the scope of laws that seek to restrict them. However, critics argue that such decisions should be left to politically accountable branches of the government. The authority of the Supreme Court to enforce these rights remains a subject of debate, and the specific rights protected under substantive due process are not always clear.
The evolution of substantive due process jurisprudence has been influenced by historical cases such as Dred Scott v. Sandford (1857), Bloomer v. McQuewan (1852), and Lochner v. New York (1905). In the Lochner case, the Supreme Court struck down a New York law regulating bakers' working hours, citing the bakers' substantive due process right to work under their terms. This decision sparked criticism and was later repudiated in 1937, signalling a more cautious approach to unenumerated rights.
Despite the controversy, the Supreme Court has continued to recognise and protect unenumerated rights. In Griswold v. Connecticut (1965), the Court struck down state bans on contraception for married couples, citing the "right to privacy" inferred from the penumbras of enumerated rights in the First, Third, and Fourth Amendments. The Court has also interpreted substantive due process to include personal and relational rights, such as the right to marry, raise children, and marry a person of the same sex.
The interpretation and application of unenumerated rights under substantive due process remain evolving and contentious. While some critics view it as elusive and subject to judicial activism, others see it as a vital safeguard against unwarranted government intrusion, ensuring that fundamental freedoms are protected.
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Judicial activism
The relationship between judicial activism and substantive due process can be seen in the historical evolution of the Fourteenth Amendment's Due Process Clause. In the early 20th century, the Supreme Court used the Due Process Clause to strike down economic regulations that interfered with freedom of contract, despite this freedom not being explicitly mentioned in the Constitution. This expansion of judicial power beyond the text of the Constitution is a key aspect of judicial activism. The 1905 case of Lochner v. New York is often cited as an example of judicial activism and economic substantive due process.
In recent years, the Supreme Court has generally been more cautious about invoking substantive due process to strike down government actions. However, there are still concerns about judicial activism, particularly in highly politicized cases. For example, the 2010 Citizens United v. Federal Election Commission case, where the Supreme Court struck down provisions limiting corporate and union spending on political advertisements, was criticized as an instance of procedural judicial activism.
The debate around judicial activism is complex, and there is no universally agreed-upon definition or set of examples. Some scholars argue that judicial activism is necessary to counterbalance the effects of majoritarianism and ensure that the rights of minorities are protected. Others view it as a threat to democracy, suggesting that judges should interpret the law as it is written rather than imposing their own views. The challenge lies in determining when judicial activism is justified and when it crosses the line into judicial overreach.
In conclusion, judicial activism refers to the perception that judges are overstepping their bounds and making decisions based on their personal policy preferences rather than a strict interpretation of the Constitution. This concept is closely tied to substantive due process, where courts protect unenumerated rights. While judicial activism can be seen as a way to protect individual liberties, it also raises concerns about judicial overreach and the potential for judges to impose their personal beliefs on the nation. The delicate balance between judicial activism and restraint remains a subject of ongoing debate and scrutiny.
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Frequently asked questions
Substantive due process is the principle that the Fifth and Fourteenth Amendments of the U.S. Constitution protect fundamental rights from government interference.
The Fifth Amendment's Due Process Clause protects individuals from federal government interference. The Fourteenth Amendment, ratified in 1868, uses the same wording, called the Due Process Clause, to extend this obligation to the states.
The phrase "substantive due process" was not used until the 20th century, but the concept arguably existed in the 19th century. The idea was a way to import natural law norms into the Constitution.
Critics of substantive due process claim that the doctrine began at the federal level with the infamous 1857 slavery case of Dred Scott v. Sandford. Critics also argue that substantive due process allows the Supreme Court to impose their policy preferences on the nation.
In 1965, the Court struck down state bans on the use of contraception by married couples on the ground that it violated their "right to privacy." In 2015, the Supreme Court recognised the right to marry an individual of the same sex as being protected by substantive due process.
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