Two substantive due process. Substantive due process is a
legal doctrine that extends beyond the procedural aspects of
the law and focuses on the fundamental rights and liberties
that the government cannot infringe upon, regardless of the
process it follows. While procedural due process
ensures fairness in the methods and procedures used by the
government, substantive due process protects certain rights
from government interference, even if the procedures are fair.
Substantive due process is rooted in the concept of natural
rights and the belief that certain rights are so
fundamental to human dignity and liberty that they must be
protected from government intrusion.
This doctrine has been instrumental in shaping American
constitutional law, particularly in cases involving individual
rights and freedoms. A historical context and
development The origins of substantive due process can be
traced back to the 19th century, when courts began to recognize
that certain rights and liberties were inherent in the
concept of due process and could not be violated by the
government. This marked a departure from the
traditional view of due process as solely concerned with
procedural fairness and introduced the idea that due
process also includes substantive protections for
fundamental rights. Substantive due process gained
significant traction in the early 20th century, particularly
during the Lochner era, when the Supreme Court used the doctrine
to strike down economic regulations that were seen as
infringing on individual liberty and property rights.
The Court's decision in Lochner V New York Nineteen O 5, which
invalidated a state law limiting the working hours of bakers, is
one of the most famous and controversial examples of
substantive due process being used to protect economic
freedoms. However, the Lochner era
eventually gave way to a broader interpretation of substantive
due process, one that focused more on personal rights and
liberties rather than economic interests.
This shift was driven by a growing recognition that certain
personal freedoms, such as the right to privacy and bodily
autonomy, were essential to individual dignity and should be
protected from government interference.
The key principles of substantive due process.
Fundamental Rights. At the core of substantive due
process is the protection of fundamental rights, those rights
that are considered essential to the concept of ordered liberty
and deeply rooted in the nation's history and traditions.
The government cannot infringe upon these rights without a
compelling reason, and any laws or regulations that do so are
subject to strict scrutiny by the courts.
Fundamental rights protected under substantive due process
include the right to marry, the right to have children, the
right to privacy, the right to bodily integrity, and the right
to make personal decisions about family and reproductive matters.
These rights are not explicitly listed in the Constitution, but
have been recognized by the courts as inherent in the
concept of due process. Key Cases.
Griswold. V Connecticut 1965, the Supreme
Court recognized a right to privacy in marital relations,
striking down a state law that prohibited the use of
contraceptives by married couples.
The decision was a landmark in the development of substantive
due process and paved the way for future rulings on
reproductive rights and personal autonomy.
Loving V Virginia 1967, the Supreme Court struck downstate
laws banning interracial marriage, recognizing the right
to marry as a fundamental right protected by substantive due
process. The decision emphasized that the
government cannot infringe upon the right to marry without a
compelling reason. Strict scrutiny and rational
basis review When a law or government action is challenged
on substantive due process grounds, courts apply different
levels of scrutiny depending on the nature of the right
involved. The highest level of scrutiny,
known as strict scrutiny, is applied when a fundamental right
is at stake. Under strict scrutiny, the
government must show that the law serves a compelling state
interest and is narrowly tailored to achieve that
interest. For non fundamental rights,
courts apply a lower level of scrutiny known as rational basis
review. Under this standard, the
government only needs to show that the law is rationally
related to a legitimate government interest.
Rational basis review is much more deferential to the
government and is generally easier for the government to
satisfy. Key cases.
Roe V Wade 1973 The Supreme Court applied strict scrutiny in
recognizing a woman's right to choose to have an abortion as a
fundamental right under substantive due process.
The decision established that the government could only
regulate abortion in ways that met the strict scrutiny
standard, balancing the state's interests with the individual's
rights. Washington V Kluxberg 1997 The
Supreme Court applied rational basis review and rejecting a
challenge to a state law prohibiting assisted suicide.
The court held that the right to assisted suicide was not a
fundamental right under substantive due process and that
the state's interest in preserving human life justified
the law. Incorporation Doctrine The
incorporation doctrine refers to the process by which the
protections of the Bill of Rights have been applied to the
states through the 14th Amendment's Due Process clause.
Originally, the Bill of Rights only restricted the federal
government, but over time, the Supreme Court has incorporated
most of these protections, making them applicable to state
and local governments as well. Substantive due process has
played a crucial role in this incorporation process, as the
courts have recognized that certain rights are so
fundamental that they must be protected from state
infringement. The incorporation doctrine has
significantly expanded the scope of constitutional protections
available to individuals and has ensured greater consistency in
the application of rights across the United States.
Key cases. Hilo V New York, 1925.
This case marked the beginning of the incorporation process,
applying the 1st Amendment's free speech protections to the
states through the 14th Amendment's Due Process Clause.
The decision set the stage for the broader incorporation of the
Bill of Rights. McDonald V City of Chicago,
2010. The Supreme Court incorporated
the Second Amendment right to bear arms, ensuring that state
and local governments cannot infringe on this fundamental
right. The decision reinforced the
principle that substantive due process protects fundamental
rights from state interference. See Substantive due process and
personal liberties. Substantive due process has been
instrumental in protecting personal liberties and ensuring
that individuals have the freedom to make decisions about
their own lives without undue government interference.
This aspect of due process has been particularly important in
cases involving reproductive rights, marriage and family, and
privacy. Reproductive Rights One of the
most significant areas where substantive due process has been
applied is in the protection of reproductive rights.
The Supreme Court's decision in Roe V Wade 1973 was a landmark
case that recognized a woman's right to choose to have an
abortion as a fundamental right protected by substantive due
process. The decision established a
framework for balancing the state's interests in protecting
potential life and the individual's right to privacy
and bodily autonomy. Roe V.
Wade and subsequent cases such as Planned Parenthood V.
Casey 1992, have affirmed that the government cannot impose
undue burdens on a woman's ability to access abortion
services. These decisions have been
central to the ongoing debate over reproductive rights and
have shaped the legal landscape for decades.
However, reproductive rights remain a contentious issue, and
the courts continue to grapple with challenges to abortion laws
and regulations. Substantive due process remains
a key legal doctrine in these cases, providing a framework for
assessing the constitutionality of government actions that
affect reproductive freedoms. Key cases planned.
Parenthood V Casey 1992 The Supreme Court reaffirmed the
central holding of Roe V. Wade while allowing for certain
state regulations on abortion as long as they do not place an
undue burden on a woman's right to choose.
The decision modified the strict scrutiny standard established in
Roe and introduced the undue burden test as a new standard
for evaluating abortion regulations.
Whole Women's Health Bee Hellerstead 2016, the Supreme
Court struck down Texas regulations that imposed strict
requirements on abortion providers, finding that they
placed an undue burden on women seeking abortions.
The decision reaffirmed the principles of substantive due
process and the undue burden standard established in KC
Marriage and Family. Substantive due process has also
played a critical role in protecting the rights to
marriage and family. The Supreme Court has recognized
that the right to marry is a fundamental right protected by
substantive due process, and any government actions that
interfere with this right are subject to strict scrutiny.
The Court's decisions in cases like Lovingby Virginia 1967 and
Obergefell V Hodges 2015 have affirmed the importance of
marriage as a fundamental right and have struck down laws that
discriminate against individuals based on race or sexual
orientation. These decisions have been
instrumental in advancing civil rights and ensuring that
individuals have the freedom to marry the person of their.
Choice key cases. Obergefell V Hodges, 2015.
The Supreme Court recognized the right of same sex couples to
marry as a fundamental right protected by substantive due
process and the Equal Protection Clause of the 14th Amendment.
The decision was a landmark victory for LGBTQ plus rights
and affirmed that the government cannot discriminate against
individuals based on sexual orientation and matters of
marriage. Doblotsky V Red Hale 1978, The
Supreme Court struck down a Wisconsin law that required
individuals with child support obligations to obtain court
approval before marrying. The court held that the law
violated the fundamental right to marry and failed to meet the
strict scrutiny standard required for laws that interfere
with substantive due process rights.
Privacy and bodily autonomy Substantive due process has also
been central to protecting the right to privacy and bodily
autonomy. The concept of privacy, while
not explicitly mentioned in the Constitution, has been
recognized by the courts as a fundamental right protected by
substantive due process. The right to privacy encompasses
a wide range of personal decisions, including those
related to marriage, family, reproductive choices, and
medical care. Substantive due process ensures
that individuals have the freedom to make these decisions
without undue government interference, recognizing the
importance of personal autonomy and dignity.
Key. Cases.
Cruz and V Director, Missouri Department of the Health, 1990.
The Supreme Court recognized a constitutionally protected
liberty interest in refusing unwanted medical treatment,
including life sustaining treatment.
The decision affirmed the right to bodily autonomy, the
importance of informed consent in medical decisions.
Lawrence V Texas, 2003, the Supreme Court struck down a
Texas law criminalizing consensual sexual conduct
between same sex adults, recognizing that the law
violated the right to privacy and personal autonomy protected
by substantive due process. The decision was a significant
victory for LGBTQ plus rights and affirmed the principle that
the government cannot interfere with private consensual
relationships. De Criticisms and Controversies
surrounding substantive due process While substantive due
process has been an instrumental in protecting fundamental
rights, it has also been the subject of significant criticism
and controversy. Critics argue that the doctrine
is overly vague and allows judges to impose their own
personal values and beliefs on the law, leading to judicial
activism. One of the main criticisms of
substantive due process is that it lacks a clear and objective
standard for determining which rights are considered
fundamental and deserving of protection.
This has led to concerns that substantive due process can be
used to justify a wide range of judicial decisions, some of
which may be seen as or stepping the bounds of the judiciary's
role. Additionally, the concept of
substantive due process has been criticized for being too
flexible and open-ended, allowing for the recognition of
new rights that were not originally intended or
contemplated by the framers of the Constitution.
This has led to debates over the legitimacy of substantive due
process as a constitutional doctrine and its implications
for the balance of power between the judiciary and the other
branches of government E Conclusion The Enduring
Importance of Substantive Due Process Despite the criticisms
and controversies, substantive due process remains a vital
component of American constitutional law, providing
essential protections for fundamental rights and
liberties. The doctrine ensures that
individuals have the freedom to make personal decisions about
their lives without undue government interference, and
that certain rights are protected from infringement,
regardless of the procedures followed.
As society continues to evolve, substantive due process will
likely remain a dynamic and contested area of law, with
courts playing a crucial role in defining and protecting the
fundamental rights that are essential to human dignity and
liberty. The ongoing debates over the
scope and application of substantive due process reflect
the enduring struggle to balance individual freedoms with the
principles of justice, equality, and the rule of law. 3
Fundamental Rights Under Due process Fundamental rights are
those rights that are considered essential to the concept of
ordered liberty and deeply rooted in the nation's history
and traditions. These rights are protected by
both procedural and substantive due process, ensuring that the
government cannot infringe upon them without a compelling reason
and following fair procedures. Fundamental rights encompass a
wide range of personal freedoms, including those related to
marriage, family, reproductive choices, privacy, and bodily
autonomy. These rights are not explicitly
listed in the Constitution, but have been recognized by the
courts as inherent in the concept of due process, a
marriage and family. The right to marry and form a
family is considered one of the most fundamental rights
protected by due process. The Supreme Court has repeatedly
affirmed that marriage is a fundamental right and that the
government cannot interfere with individuals decisions about
marriage and family without a compelling reason.
The Court's decisions in cases like Lovingby Virginia 1967,
which struck down laws banning interracial marriage, and
Obergefell V Hodges 2015, which recognized the right of same sex
couples to marry, have reinforced the importance of
marriage as a fundamental right and have expanded the scope of
protections available under due process.
B Reproductive rights. Reproductive rights, including
the right to choose to have an abortion, are also considered
fundamental rights protected by substantive due process.
The Supreme Court's decision in Roe V.
Wade 1973 was a landmark case that recognized a woman's right
to make personal decisions about her reproductive health and
established a framework for balancing the state's interests
with individual rights. Subsequent cases such as Planned
Parenthood V Casey 1992 and Whole Woman's Health V.
Hellerstadt 2016 have reaffirmed the importance of reproductive
rights and the need to protect individuals autonomy and making
decisions about their bodies. See Privacy and bodily autonomy.
The right to privacy and bodily autonomy is another fundamental
right protected by due process. This right encompasses a wide
range of personal decisions, including those related to
medical care, sexual conduct, and end of life choices.
The Supreme Court's decisions in cases like Griswold V
Connecticut 1965, which recognized the right to privacy
and marital relations, and Lawrence V Texas 2003, which
struck down laws criminalizing consensual sexual conduct
between same sex adults, have reinforced the importance of
privacy and personal autonomy as fundamental rights de parental
rights. Parental rights, including the
right to make decisions about the upbringing in education of
one's children, are also considered fundamental rights
protected by due process. The Supreme Court has recognized
that parents have a fundamental right to direct the upbringing
of their children and that the government cannot interfere with
this right without a compelling reason.
Key Cases Pierce V. Society of Sisters, 1925.
The Supreme Court struck down an Oregon law requiring all
children to attend public schools, recognizing that
parents have a fundamental right to choose how their children are
educated. Troxel V Granville 2000 the
Supreme Court recognized the fundamental right of parents to
make decisions about their children's care, custody, and
control, striking down a Washington state law that
allowed third parties to petition for visitation rights
over the objections of the child's parents.
E Right to Travel The right to travel both domestically and
internationally is considered a fundamental right protected by
due process. This right ensures that
individuals have the freedom to move freely within the United
States and to leave and re enter the country without undue
government interference. Key Cases.
Shapiro. V Thompson 1969, the Supreme
Court struck downstate residency requirements for welfare
benefits, recognizing that the right to travel is a fundamental
right protected by the Constitution.
Kent V Dallas, 1958, the Supreme Court recognized the right to
travel internationally as a fundamental right, ruling that
the government could not deny a passport based on an
individual's political beliefs of voting rights.
Voting rights are also considered fundamental rights
protected by due process. The right to vote is essential
to the functioning of a democratic society, and the
Supreme Court has recognized that any government action that
restricts or infringes upon this right must be subject to strict
scrutiny. Key cases.
Harper V Virginia Board of Elections, 1966 The Supreme
Court struck down state poll taxes, recognizing that the
right to vote is a fundamental right that cannot be denied
based on an individual's ability to pay.
Reynolds V Sims 1964, The Supreme Court established the
principle of one person, one vote, ensuring that legislative
districts are drawn in a way that ensures equal
representation for all citizens. G Conclusion The Enduring
Importance of Fundamental Rights under Due process Fundamental
rights under due process are essential to the protection of
individual liberties and the preservation of human dignity.
These rights encompass a wide range of personal freedoms, from
the right to marry and form a family to the right to make
decisions about one's own body and life.
As society continues to evolve, the protection of fundamental
rights under due process will remain a critical aspect of
American constitutional law. The courts will continue to play
a vital role in defining and safeguarding these rights,
ensuring that individuals have the freedom to live their lives
with autonomy, dignity, and respect.
In conclusion, the doctrine of due process, both procedural and
substantive, serves as a powerful tool for protecting
individual rights and ensuring that the government acts fairly
and justly in all its dealings with citizens, whether in the
context of criminal proceedings, civil litigation, or
administrative actions. Due process remains a
cornerstone of the American legal system, upholding the
principles of fairness, justice, and the rule of law.
Summary of Chapter 9 Due Process Chapter 9 explores the concept
of due process, a fundamental principle in American
constitutional law that protects individuals from arbitrary,
unfair government actions. Due process is divided into two
key components, procedural due process and substantive due
process. Procedural due Process
Procedural due process focuses on ensuring that the government
follows fair procedures when depriving individuals of life,
liberty, or property. This includes key elements such
as notice. Individuals must receive
adequate and timely notice before any government action
that could impact their rights. Opportunity to be heard.
A fair hearing must be provided where individuals can present
their case and challenge the government's actions.
Impartial decision maker. Decisions must be made by an
unbiased authority free from conflicts of interest.
Right to Counsel In certain cases, individuals have the
right to legal representation to ensure a fair trial.
Right to an appeal Individuals may seek review of a lower
court's decision by a higher court to correct any errors in
the application of the law. Timeliness.
Legal proceedings should be conducted without unnecessary
delays to prevent harm to individuals.
Procedural due process applies in various contexts, including
criminal, civil and administrative proceedings,
ensuring that the government respects individuals rights and
follows established legal norms. Substantive due process
substantive due process goes beyond procedural fairness and
focuses on protecting fundamental rights and liberties
from government interference. Even when fair procedures are
followed, key aspects include fundamental rights.
Substantive due process protects rights that are essential to
ordered liberty, such as the right to marry, reproductive
rights, privacy, and bodily autonomy.
Strict scrutiny and rational basis review Court supplies
strict scrutiny when a fundamental right is at stake,
requiring the government to justify its actions with a
compelling interest. For non fundamental rights,
courts use a more lenient rational basis review
incorporation doctrine. This doctrine applies the
protections of the Bill of Rights to the states through the
14th Amendment's Due Process Clause, ensuring that state and
local governments respect fundamental rights.
Substantive due process has been crucial in landmark cases
involving personal liberties such as reproductive rights, Roe
V Wade, marriage equality, Obergefell V.
Hodges and privacy. Griswold V Connecticut
Fundamental rights under due process The chapter also
highlights several fundamental rights protected by due process,
including marriage and family. The right to marry and form a
family is a fundamental right protected by substantive due
process. Reproductive rights Rights
related to reproductive choices, including the right to an
abortion, are protected under substantive due process.
Privacy and Bodily autonomy Individuals have the right to
privacy and autonomy and making personal decisions about their
lives. Parental rights Parents have the
right to make decisions about the upbringing and education of
their children. Right to travel The right to
travel both domestically and internationally is protected by
due process. Voting rights Voting rights are
essential to democracy and are protected by due process,
ensuring that government actions affecting voting are subject to
strict scrutiny. Conclusion Chapter 9 underscores
the importance of due process and safeguarding individual
rights and liberties. While procedural due process
ensures that the government follows fair procedures,
substantive due process protects fundamental rights from
government infringement. Together, these doctrines play a
vital role in maintaining justice, equality, and the rule
of law in the American legal system.