Substantive Due Process - Conceptual Basics

Conceptual Basics

The Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.

The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:

• the rights enumerated in and derived from the first eight amendments in the Bill of Rights (e.g., the Eighth Amendment);
• the right to participate in the political process (e.g., the rights of voting, association, and free speech); and
• the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.