Due Process (Substantive)
Fifth & Fourteenth Amendments
Substantive due process protects fundamental rights from government interference regardless of procedures used. It's the "what" of government action — limiting what government can do even with perfect procedures.
Overview
While procedural due process is about fair procedures, substantive due process protects certain fundamental rights from government interference. Even if government follows perfect procedures, it cannot violate these core liberties. This doctrine is controversial because it involves courts identifying unenumerated rights.
This breakdown uses the TICRI Constitutional Rights methodology to provide:
- 📜 Constitutional Text
- 💭 Plain English Explanation
- ✅ What IS Protected
- ❌ What is NOT Protected
- ⚖️ Key Supreme Court Cases
- 🔍 Real-World Applications
📜 Constitutional Text
"No person shall... be deprived of life, liberty, or property, without due process of law..."
— Fifth Amendment (applies to federal government)
"...nor shall any State deprive any person of life, liberty, or property, without due process of law..."
— Fourteenth Amendment (applies to states)
Note: Same text as procedural due process, but interpreted to protect substantive rights, not just procedures. Controversial interpretation deriving unenumerated rights from "liberty."
💭 Plain English Explanation
The Constitution protects certain fundamental rights even though they're not specifically listed. "Liberty" in Due Process Clause includes more than just freedom from physical restraint — it includes fundamental aspects of personal autonomy and private life.
When government restricts fundamental right: Courts apply strict scrutiny. Government must show the law is necessary to achieve a compelling government interest and is narrowly tailored. Very hard to satisfy.
When law doesn't affect fundamental right: Courts apply rational basis review. Government only needs to show law is rationally related to legitimate government purpose. Very easy to satisfy.
The Controversy: Critics say courts shouldn't "invent" rights not in Constitution's text. Supporters say "liberty" must evolve to protect essential freedoms. This debate continues.
✅ What IS Protected (Fundamental Rights)
✓ Marriage & Family Rights
Right to marry (including same-sex marriage), raise children, live with family, make decisions about children's upbringing. Government cannot prohibit marriage without compelling justification. Includes interracial marriage, prisoner marriage, same-sex marriage.
✓ Parental Rights
Parents have fundamental right to direct upbringing and education of children. Can choose private school, homeschool, religious education. State cannot unreasonably interfere with parent-child relationship.
✓ Privacy & Bodily Autonomy
Right to make intimate personal decisions about sex, contraception, and reproduction. Originally included abortion (Roe v. Wade), but Dobbs v. Jackson (2022) overruled Roe, holding no constitutional right to abortion. Contraception access still protected.
✓ Sexual Intimacy
Adults have right to engage in consensual sexual conduct in privacy of home (Lawrence v. Texas). Government cannot criminalize consensual adult sexual activity based on moral disapproval.
✓ Right to Refuse Medical Treatment
Competent adults have right to refuse unwanted medical treatment, including life-sustaining treatment. Bodily integrity is fundamental aspect of liberty. May extend to withdrawal of life support for incompetent patients with clear prior wishes.
✓ Freedom of Movement
Right to travel interstate is fundamental. States cannot restrict right to enter or leave state, or treat new residents differently from longtime residents. Protects freedom to move to new state.
❌ What is NOT Protected (Or No Longer Protected)
✗ Abortion Rights (As of 2022)
Dobbs v. Jackson Women's Health Organization (2022) overruled Roe v. Wade and Planned Parenthood v. Casey. No constitutional right to abortion. States can regulate or ban abortion without violating Due Process Clause. Major reversal of 50 years of precedent.
✗ Economic Rights & "Liberty of Contract"
Lochner era (1897-1937) recognized economic liberty as fundamental right. Court struck down minimum wage, maximum hour, and labor laws. Rejected since 1937 — economic regulations get only rational basis review. No fundamental right to economic liberty.
✗ Right to Physician-Assisted Suicide
No fundamental right to assistance in committing suicide (Washington v. Glucksberg). States can ban physician-assisted suicide without violating Due Process. Distinguished from right to refuse treatment.
✗ Education
No fundamental right to education under federal Constitution (San Antonio v. Rodriguez). States can provide different levels of school funding without violating Due Process. Some state constitutions protect education more strongly.
✗ Welfare or Social Services
No fundamental right to welfare benefits, housing, or healthcare under federal Constitution. Government can deny or terminate benefits (with procedural due process). Not every important interest is "fundamental."
⚖️ Key Supreme Court Cases
Griswold v. Connecticut (1965)
Privacy Right to Contraception — Married couples have right to use contraception. Constitution protects "zones of privacy" formed by penumbras of specific Bill of Rights guarantees. State cannot ban contraception for married couples.
Foundational privacy case. Recognized unenumerated privacy right, though justices disagreed on source (penumbras, Ninth Amendment, or Due Process Clause). Led to expansion of privacy rights.
Roe v. Wade (1973) & Dobbs v. Jackson (2022)
Abortion Rights: Established Then Overturned — Roe recognized constitutional right to abortion based on privacy and due process. Dobbs overruled Roe 49 years later, holding no constitutional right to abortion. States can now regulate or ban abortion.
Most consequential substantive due process reversal. Dobbs limited substantive due process to rights "deeply rooted in Nation's history and tradition." Abortion doesn't qualify under that test. Heightened controversy over unenumerated rights.
Obergefell v. Hodges (2015)
Same-Sex Marriage Constitutional Right — Right to marry is fundamental, includes same-sex couples. States cannot deny marriage licenses to same-sex couples. Combination of Due Process and Equal Protection.
Extended marriage right to same-sex couples nationwide. Relied on dignity and autonomy protected by Due Process Clause. After Dobbs, some question whether Obergefell remains secure.
Lawrence v. Texas (2003)
Consensual Sexual Conduct Protected — Adults have liberty interest in consensual sexual conduct in privacy of home. States cannot criminalize sodomy based on moral disapproval. Overruled Bowers v. Hardwick (1986).
Major gay rights decision. Recognized that intimate consensual adult conduct is protected by Due Process. Paved way for later marriage equality decisions.
Loving v. Virginia (1967)
Interracial Marriage — Right to marry is fundamental. Virginia's ban on interracial marriage violated both Due Process and Equal Protection. Marriage is "one of the vital personal rights essential to the orderly pursuit of happiness."
Struck down bans on interracial marriage that existed in 16 states. Established marriage as fundamental right protected by Due Process, not just Equal Protection issue.
Meyer v. Nebraska (1923) & Pierce v. Society of Sisters (1925)
Parental Rights — Parents have liberty interest in directing children's upbringing and education. State cannot prohibit teaching foreign languages or force children to attend public school. Parents can choose private or religious education.
Early substantive due process cases protecting family rights. Established parental autonomy in child-rearing as fundamental right surviving to present day.
Washington v. Glucksberg (1997)
No Right to Assisted Suicide — No fundamental right to physician-assisted suicide. Established test for new fundamental rights: must be "deeply rooted in Nation's history and tradition" and "implicit in concept of ordered liberty."
Rejected broad due process liberty claims. Set high bar for recognizing new fundamental rights — must describe right narrowly and show historical tradition. Dobbs relied heavily on this framework.
🔍 Real-World Applications
Post-Dobbs Landscape
Major Shift in 2022: Dobbs overturned Roe, eliminating constitutional abortion right. Court limited substantive due process to rights with deep historical roots. This creates uncertainty about other privacy rights.
Justice Thomas's concurrence suggested reconsidering other substantive due process precedents (contraception, sodomy, same-sex marriage). Majority said these weren't at issue, but concern remains.
Marriage Rights
Marriage is fundamental right protected by substantive due process. Includes:
- Interracial marriage (Loving v. Virginia)
- Prisoner marriage (Turner v. Safley)
- Same-sex marriage (Obergefell v. Hodges)
- Right to not marry (cannot be forced to marry)
Family & Parental Rights
Parents have broad autonomy in raising children:
- Choice of school (public, private, religious, homeschool)
- Medical decisions for minor children
- Religious upbringing
- Maintaining family relationships (grandparents' rights limited)
State can intervene only with compelling interest (abuse, neglect). Child welfare is compelling, but must respect parental rights.
Contraception Access
Access to contraception remains protected under Griswold and its progeny. Applies to married and unmarried people, adults and minors. After Dobbs, some states considering restrictions, but current precedent still protects contraception access.
Medical Decisions & Bodily Autonomy
Competent adults can refuse medical treatment, including life-sustaining treatment (Cruzan). Right to bodily integrity is fundamental. But no recognized right to affirmative assistance in dying (Washington v. Glucksberg).
Levels of Scrutiny
Fundamental Right Affected: Strict Scrutiny
Government must show law is necessary to achieve compelling interest and narrowly tailored. Very difficult — most laws fail.
No Fundamental Right: Rational Basis Review
Government only needs to show law is rationally related to legitimate interest. Very easy — most laws pass.
Key Takeaways
- ✓Due Process Clause protects certain fundamental rights not explicitly listed in Constitution
- ✓Fundamental rights: marriage, family, parental rights, contraception, sexual intimacy, bodily autonomy
- ✓Laws affecting fundamental rights face strict scrutiny (compelling interest, narrowly tailored)
- ✓Abortion rights eliminated in Dobbs v. Jackson (2022), overruling Roe v. Wade
- ✓New fundamental rights must be "deeply rooted in Nation's history and tradition" (high bar)
- ✓Controversial doctrine — debate over judicial identification of unenumerated rights continues