Substantive due process

Constitutional law of the United States
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Theory
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Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent.^[1] In recent opinions, Justice Clarence Thomas has called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.^[2]

Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law".^[3] Procedural due process protects individuals from the coercive power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely notice of why a party is required to appear before a court or other governmental body, the right to an impartial trier of fact and trier of law, and the right to give testimony and present relevant evidence at hearings.^[3] In contrast, substantive due process protects individuals against majoritarian policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, even if the processes of enactment and enforcement were actually fair.^[3]

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]