substantive due process

Substantive due process is the principle that the Fifth and Fourteenth Amendments of the U.S. Constitution protect fundamental rights from government interference. Specifically, 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, and the Fourteenth Amendment applies to state action.

The words “due process” suggest a concern with procedure rather than substance. Substantive due process has been interpreted to include things such as the right to work in an ordinary kind of job, to marry, and to raise one's children as a parent. Compare with procedural due process.

The Supreme Court’s first foray into defining which government actions violate substantive due process was during the Lochner Era. In Lochner v New York (1905), the Supreme Court found a New York law regulating the working hours of bakers to be unconstitutional, ruling that the public benefit of the law was not enough to justify the substantive due process right of the bakers to work under their own terms. The Court determined that the freedom to contract and other economic rights were fundamental, and state efforts to control employee-employer relations, such as minimum wages, were struck down.

In 1937, the Supreme Court rejected the Lochner Era’s interpretation of substantive due process in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) by allowing Washington to implement a minimum wage for women and minors.

Following Carolene Products, 304 U.S. 144 (1938), the Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain Amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:

• Right to privacy: Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925).
• The right to privacy (specifically the right to contraceptives): Griswold v. Connecticut, 381 U.S. 479 (1965)
• The right to marry a person of a different race: Loving v. Virginia, 388 U.S. 1 (1967)
• The right to pre-viability abortion: Roe v. Wade, 410 U.S. 113, (1973)
  • This was overturned in Dobbs v. Jackson Women's Health Organization (2022)

  Substantive due process remains a vital and evolving concept of Constitutional Law, ensuring that essential personal freedoms are protected from unwarranted government intrusion.

  The words of Professor Chemerinsky encapsulate the criticism around substantive due process, as “there is no concept in American law that is more elusive than substantive due process.” See S ubstantive Due Process by Erwin Chemerinsky, Duke University

  [Last updated in June of 2024 by the Wex Definitions Team]

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