Substantive due process

The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952 Supreme Court opinions had mentioned it twice.[4] The term "substantive due process" itself is commonly used in two ways: to identify a particular line of case law and to signify a particular political attitude toward judicial review under the two due process clauses.^[5]

Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope.^[5] Critics of substantive due process decisions usually assert that the U.S. Constitution includes no textual basis for unenumerated rights, and that they should be left to the purview of the more politically accountable branches of government.^[5]

Conceptual basics

The courts have viewed the Due Process Clause and sometimes other clauses of the Constitution as embracing the fundamental rights that are "implicit in the concept of ordered liberty".^[6] The rights have not been clearly identified and the Supreme Court's authority to enforce the unenumerated rights is unclear.^[7] Some of the rights have been said to be "deeply rooted" in American history and tradition; that phrase was used for rights related to the institution of the family.^[8]

The courts have largely abandoned the Lochner era approach (c. 1897–1937), when substantive due process was used to strike down minimum wage and labor laws to protect freedom of contract. Since then, the Supreme Court has decided that the Constitution protects numerous other freedoms, even if they are not in the text. If the federal courts' doctrine of substantive due process did not protect them, they could nevertheless be protected in other ways; for example, other provisions of the state or federal constitutions^[9] or legislatures^[10] protect some rights.

Today, the Supreme Court provides special protection for three types of rights under substantive due process in the Fourteenth Amendment – an approach which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4:

• Rights enumerated in and derived from the first eight amendments to the Constitution
• The right to participate in the political process, such as the rights of voting, association, and free speech
• The rights of "discrete and insular minorities"

The Supreme Court usually looks first to see whether the right is a

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; prior to the American Civil War, the state courts were the site of the struggle. 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.^[11] Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852).^{[citation needed]}

The "vested rights" jurists saw the "law of the land" and "due process" clauses of state constitutions as restrictions on the substantive content of legislation.^{[citation needed]} They were sometimes successful in arguing that certain government infringements were prohibited, regardless of procedure. For example, in 1856, the New York Court of Appeals held in Wynehamer v. New York that "without 'due process of law', no act of legislation can deprive a man of his property, and that in civil cases an act of the legislature alone is wholly inoperative to take from a man his property".^[12] However, in 1887 the U.S. Supreme Court subsequently rejected the rationale of Wynehamer.^[13] Other antebellum cases on due process include Murray's Lessee v. Hoboken Land & Improvement Co., which dealt with procedural due process,^[14] but the Supreme Court subsequently characterized the rationale of Murray, in the case of Hurtado v. California, as not providing "an indispensable test" of due process.^[15]

Another important pre-Civil War milestone in the history of due process was Daniel Webster's argument to the Supreme Court as counsel in Dartmouth College v. Woodward that the Due Process Clause forbids bills of attainder and various other types of bad legislation.^[16] Nevertheless, the Supreme Court declined in the case to address that aspect of Webster's argument, the New Hampshire Supreme Court having already rejected it.^[17]

Following the Civil War, the Fourteenth Amendment's due process clause prompted substantive due process interpretations to be urged on the Supreme Court as a limitation on state legislation. Initially, however, the Supreme Court rejected substantive due process as it came to be understood, including in the seminal Slaughter-House Cases.^[18] Beginning in the 1870s through the late 1880s, the Supreme Court hinted in dicta that various state statutes challenged under a different constitutional provision may have been invalidated under the due process clause.^[18] The first case to invalidate a state government economic regulation under this theory was Allgeyer v. Louisiana in 1897 which interpreted the word "liberty" in the due process clause to mean economic liberty.^[18] The Supreme Court would go on to impose on both federal and state legislation a firm judicial hand on property and economics right until the Great Depression in the 1930s.^[18]

The Court typically invalidated statutes during the Lochner era (named after Lochner v. New York) by declaring the statutes in violation of the right to contract.^[18] The Court invalidated state laws prohibiting employers from insisting, as a condition of employment, that their employees agree not to join a union.^[18] The Court also declared a state minimum wage law for women unconstitutional.^[18] Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, some scholars believe that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts.^[18]

Later development

The end of the Lochner era came in 1937 with the Supreme Court's holding in West Coast Hotel Co. v. Parrish. In that case, the Court upheld the state of Washington's "Minimum Wages for Women" act, reasoning that the Constitution permitted the restriction of liberty of contract by state law where such restriction protected the community, health and safety, or vulnerable groups.^[18]

Although economic due process restrictions on legislation were largely abandoned by the courts, substantive due process rights continue to be successfully asserted today in non-economic legislation that affects intimate issues like bodily integrity, marriage, religion, childbirth, child-rearing, and sexuality.

Privacy, which is not mentioned in the Constitution, was at issue in