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Substantive due process is a principle in
United States constitutional law The constitutional law of the United States is the body of law governing the interpretation and implementation of the United States Constitution. The subject concerns the scope of power of the United States federal government compared to the indi ...
that allows courts to establish and protect certain
fundamental rights Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Susta ...
from government interference, even if only procedural protections are present or the rights are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the
due process clause In United States constitutional law, a Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of "life, liberty, or property" by the government except a ...
s 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 Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...
". 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. Justice
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1 ...
has called on the Supreme Court to reconsider all of its rulings that were based on substantive due process. 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". 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 Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive 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. In contrast, substantive due process protects individuals against
majoritarian Majoritarianism is a traditional political philosophy or agenda that asserts that a majority (sometimes categorized by religion, language, social class, or some other identifying factor) of the population is entitled to a certain degree of p ...
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, regardless of whether the processes of enactment and enforcement were actually fair. The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952 had been mentioned twice in Supreme Court opinions. 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 Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
under the two due process clauses. Much substantive due process litigation involves legal challenges about unenumerated rights that seek 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. Critics of substantive due process decisions usually assert that there is no textual basis in the U.S. Constitution for such protection and that such liberties should be left under the purview of the more politically accountable branches of government.


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". The rights have not been clearly identified and the Supreme Court's authority to enforce the unenumerated rights is unclear. 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. The courts have largely abandoned the
Lochner era The ''Lochner'' era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's o ...
approach (c. 1897–1937), when substantive due process was used to strike down minimum wage and labor laws to protect
freedom of contract Freedom of contract is the process in which individuals and groups form contracts without government restrictions. This is opposed to government regulations such as minimum-wage laws, competition laws, economic sanctions, restrictions on pri ...
. Since then, the Supreme Court has decided that numerous other freedoms, even if they are not in the text of the Constitution, are protected by it. If they were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, some rights are protected by other provisions of the state or federal constitutions or by legislatures.New York Bill of Rights (1787)
/ref> 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. ''United States v. Carolene Products Company'', 304 U.S. 144 (1938), was a case of the United States Supreme Court that upheld the federal government's power to prohibit filled milk from being shipped in interstate commerce. In his majority opini ...
'', , 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 fundamental right by examining whether it is deeply rooted in American history and traditions. If the right is not a fundamental right, the court applies a
rational basis test In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendme ...
: if the violation of the right can be rationally related to a legitimate government purpose, the law is then held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny and asks whether the law is necessary to achieve a compelling state interest and whether the law is narrowly tailored to address that interest.


History of jurisprudence

Early in American judicial history, various jurists attempted to form theories of
natural rights Some philosophers distinguish two types of rights, natural rights and legal rights. * Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', '' fundamental'' an ...
and
natural justice In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
to limit the power of government, especially on property and the rights of persons. Opposing "vested rights" were other jurists, who argued that the written constitution was the supreme law of the State and that judicial review could look only to that document, not to the "unwritten law" of "natural rights". Opponents also argued that the " police power" of government allowed legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.


Early origins

The phrase ''substantive due process'' was not used until the 20th century, but the concept was arguably employed in the 19th century. The idea was a way to import natural law norms into the Constitution; prior to the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
, the state courts, then exempted from the Fifth Amendment, were the places in which the struggle was carried out. 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 ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
''. 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'', . 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. 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". However, the rationale of ''Wynehamer'' was subsequently rejected, in 1887, by the U.S. Supreme Court. Other antebellum cases on due process include '' Murray's Lessee v. Hoboken Land & Improvement Co.'', which dealt with procedural due process,''Murray v. Hoboken Land'', but the rationale of ''Murray'' was subsequently characterized by the Supreme Court, in the case of ''Hurtado v. California'', as not providing "an indispensable test" of due process.''Hurtado v. California'', Another important pre-Civil War milestone in the history of due process was
Daniel Webster Daniel Webster (January 18, 1782 – October 24, 1852) was an American lawyer and statesman who represented New Hampshire and Massachusetts in the U.S. Congress and served as the U.S. Secretary of State under Presidents William Henry Harrison ...
's argument to the Supreme Court as counsel in ''
Dartmouth College v. Woodward ''Trustees of Dartmouth College v. Woodward'', 17 U.S. (4 Wheat.) 518 (1819), was a landmark decision in United States corporate law from the United States Supreme Court dealing with the application of the Contracts Clause of the United State ...
'' that the Due Process Clause forbids
bills of attainder A bill of attainder (also known as an act of attainder or writ of attainder or bill of penalties) is an act of a legislature declaring a person, or a group of people, guilty of some crime, and punishing them, often without a trial. As with attai ...
and various other types of bad legislation. Nevertheless, the Supreme Court declined in the case to address that aspect of Webster's argument, the
New Hampshire Supreme Court The New Hampshire Supreme Court is the supreme court of the U. S. state of New Hampshire and sole appellate court of the state. The Supreme Court is seated in the state capital, Concord. The Court is composed of a Chief Justice and four Associat ...
having already rejected it.
Roger Taney Roger Brooke Taney (; March 17, 1777 – October 12, 1864) was the fifth chief justice of the United States, holding that office from 1836 until his death in 1864. Although an opponent of slavery, believing it to be an evil practice, Taney belie ...
, in his ''Dred Scott'' opinion, pronounced without elaboration that the
Missouri Compromise The Missouri Compromise was a federal legislation of the United States that balanced desires of northern states to prevent expansion of slavery in the country with those of southern states to expand it. It admitted Missouri as a Slave states an ...
was unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law". In the case, neither Taney nor the dissenting
Benjamin Robbins Curtis Benjamin Robbins Curtis (November 4, 1809 – September 15, 1874) was an American lawyer and judge. He served as an associate justice of the United States Supreme Court from 1851 to 1857. Curtis was the first and only Whig justice of the ...
mentioned or relied upon the Court's previous discussion of due process in ''Murray'', and Curtis disagreed with Taney about what "due process" meant.


''Lochner'' era

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 The ''Slaughter-House Cases'', 83 U.S. (16 Wall.) 36 (1873), was a landmark U.S. Supreme Court decision consolidating several cases that held that the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only pr ...
''. 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. The first case to invalidate a state government economic regulation under this theory was ''
Allgeyer v. Louisiana ''Allgeyer v. Louisiana'', 165 U.S. 578 (1897), was a landmark case of the Supreme Court of the United States in which a unanimous bench struck down a Louisiana statute for violating an individual's liberty of contract. It was the first case in w ...
'' in 1897 which interpreted the word "liberty" in the due process clause to mean economic liberty. 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 The Great Depression (19291939) was an economic shock that impacted most countries across the world. It was a period of economic depression that became evident after a major fall in stock prices in the United States. The economic contagio ...
in the 1930s. 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. The Court invalidated state laws prohibiting employers from insisting, as a condition of employment, that their employees agree not to join a union. The Court also declared a state minimum wage law for women unconstitutional. Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, substantive due process has been charged to have developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts.


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. 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 '' Griswold v. Connecticut'', when the Court held, in 1965, that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the " penumbras", or shadow edges, of certain amendments that arguably refer to certain privacy rights, such as the
First Amendment First or 1st is the ordinal form of the number one (#1). First or 1st may also refer to: *World record, specifically the first instance of a particular achievement Arts and media Music * 1$T, American rapper, singer-songwriter, DJ, and reco ...
, which protects freedom of expression; the Third Amendment, which protects homes from being taken for use by soldiers; and the Fourth Amendment, which provides security against unreasonable searches. The penumbra-based rationale of ''Griswold'' has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights, as John Marshall Harlan II had argued in his concurring ''Griswold'' opinion, instead of relying on the "penumbras" and "emanations" of the Bill of Rights, as the majority opinion did in ''Griswold''. Although it has never been the majority view, some have argued that the Ninth Amendment, on unenumerated rights, could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by
Arthur Goldberg Arthur Joseph Goldberg (August 8, 1908January 19, 1990) was an American statesman and jurist who served as the 9th U.S. Secretary of Labor, an Associate Justice of the Supreme Court of the United States, and the 6th United States Ambassador to ...
in concurring in ''Griswold''. The Supreme Court also recognized a substantive due process right "to control the education of one's children", thus voiding state laws mandating for all students to attend public school. In '' Pierce v. Society of Sisters'', the Supreme Court said in 1925: Some justices have argued, however, that a substantive due process claim may not be necessary in cases of this type, as it is possible for those laws to be deemed to violate "First Amendment principles" as well. Justice
Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...
speculated in the 2000 case of '' Troxel v. Granville'''' Troxel v. Granville'', , (Kennedy, J., dissenting): "Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion." that current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision if one is available. The right to marry a person of a different race was addressed in '' Loving v. Virginia'', in which the Court said, in 1967, that its decision striking down
anti-miscegenation laws Anti-miscegenation laws or miscegenation laws are laws that enforce racial segregation at the level of marriage and intimate relationships by criminalizing interracial marriage and sometimes also sex between members of different races. Anti-mi ...
could be justified either by substantive due process, or by the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
. The unconstitutionality of bans on and refusals to recognize
same-sex marriage Same-sex marriage, also known as gay marriage, is the marriage of two people of the same sex or gender. marriage between same-sex couples is legally performed and recognized in 33 countries, with the most recent being Mexico, constituting ...
was decided partly on substantive due process grounds by '' Obergefell v. Hodges'' in 2015. A right to have children was addressed in ''
Skinner v. Oklahoma ''Skinner v. State of Oklahoma, ex rel. Williamson'', 316 U.S. 535 (1942), is a unanimous United States Supreme Court ruling. that held that laws permitting the compulsory sterilization of criminals are unconstitutional as it violates a person's ri ...
'', but the Court in ''Skinner'', in 1942, explicitly declined to base its decision on due process but instead cited the
Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
since the Oklahoma law required sterilization of some three-time felons but not others. A substantive due process right of a parent to educate a young child (before ninth grade) in a foreign language was recognized in '' Meyer v. Nebraska'', in 1923, with two justices dissenting, and Justice Kennedy has mentioned that ''Meyer'' might be decided on different grounds in modern times. Laws that "shock the conscience" of the Court were generally deemed unconstitutional, in 1952, in '' Rochin v. California'', but in concurring, Justices Black and Douglas argued that pumping a defendant's stomach for evidence should have been deemed unconstitutional on the narrower ground that it violates the Fifth Amendment's right against self-incrimination. The Court, in '' O'Connor v. Donaldson'', in 1975, said that due process is violated by confining a nondangerous mentally ill person who is capable of surviving safely in freedom. Chief Justice Burger's concurring opinion was that such confinement may also amount to "punishment" for being mentally ill, violating the Court's interpretation of the Eighth Amendment in '' Robinson v. California''. Freedom from excessive punitive damages was deemed to be a due process right in '' BMW v. Gore'', in 1996, but four justices disagreed. The Court, in '' Cruzan v. Missouri'', decided, in 1990, that due process is not violated if a state applies "a
clear and convincing evidence In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state". In 2022, the Court declared that the right to an abortion is not deeply rooted in the nation’s history, and therefore is not among unenumerated rights in the constitution by virtue of the Due Process clause.


Criticisms

Criticisms of the doctrine continue as before. Critics argue that judges are making determinations of policy and morality that properly belong with legislators ("legislating from the bench"), that they are reading doctrines and principles into the Constitution that are not expressed in or implied by the document, or that they are claiming power to expand the liberty of some people at the expense of other people's liberty (such as in ''
Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...
''). Justice Oliver Wendell Holmes Jr., a proponent of
legal realism Legal realism is a naturalistic approach to law. It is the view that jurisprudence should emulate the methods of natural science, i.e., rely on empirical evidence. Hypotheses must be tested against observations of the world. Legal realists ...
, worried that the Court was overstepping its boundaries and wrote, in 1930, in one of his last dissents: Originalists, such as Supreme Court Justices
Clarence Thomas Clarence Thomas (born June 23, 1948) is an American jurist who serves as an associate justice of the Supreme Court of the United States. He was nominated by President George H. W. Bush to succeed Thurgood Marshall and has served since 1 ...
, who rejects the substantive due process doctrine, and
Antonin Scalia Antonin Gregory Scalia (; March 11, 1936 – February 13, 2016) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1986 until his death in 2016. He was described as the intellectu ...
, who also questioned the legitimacy of the doctrine, have called substantive due process a "judicial usurpation" or an "oxymoron". Both Scalia and Thomas occasionally joined Court opinions that mention the doctrine and, in their dissents, often argued over how substantive due process should be employed based on Court precedent. Many non-originalists, like Justice
Byron White Byron "Whizzer" Raymond White (June 8, 1917 April 15, 2002) was an American professional football player and jurist who served as an associate justice of the U.S. Supreme Court from 1962 until his retirement in 1993. Born and raised in Colo ...
, have also been critical of substantive due process. As propounded in his dissents in '' Moore v. East Cleveland'' and ''
Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and st ...
'', as well as his majority opinion in ''
Bowers v. Hardwick ''Bowers v. Hardwick'', 478 U.S. 186 (1986), was a landmark decision of the U.S. Supreme Court that upheld, in a 5–4 ruling, the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults, i ...
'', White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will". In his book ''Democracy and Distrust'', non-originalist John Hart Ely criticized "substantive due process" as a glaring ''non sequitur''. Ely argued the phrase was both a contradiction in terms, like the phrase ''green pastel redness'', and radically undemocratic by allowing judges to impose substantive values on the political process. Ely argued that the courts should serve to reinforce the democratic process, not to displace the substantive value choices of the people's elected representatives. The current majority view of the Supreme Court supports substantive due process rights in a number of areas. An alternative to strict originalist theory is advocated by former Supreme Court Justice
Stephen Breyer Stephen Gerald Breyer ( ; born August 15, 1938) is a retired American lawyer and jurist who served as an associate justice of the U.S. Supreme Court from 1994 until his retirement in 2022. He was nominated by President Bill Clinton, and rep ...
, one of the Court's supporters of substantive due process rights. Breyer believes the justices need to look at cases in light of how their decisions will promote what he calls "active liberty", the Constitution's aim of promoting participation by citizens in the processes of government. That is an approach that ostensibly emphasizes "the document's underlying values" and a broad look at a law's purpose and consequences. Critics charge that such an approach would also give judges the ability to look very broadly at the consequences and unwritten purpose of constitutional provisions, such as the Due Process Clause, thus removing issues from the democratic process. Originalism is usually linked to opposition against substantive due process rights, and the reasons can be found in the following explanation that was endorsed unanimously by the Supreme Court in the 1985 case University of Michigan v. Ewing: "we must always bear in mind that the substantive content of the ue ProcessClause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments." Originalists do not necessarily oppose protection of rights protected by substantive due process. Most originalists believe that such rights should be identified and protected legislatively or by further constitutional amendments or other existing provisions of the Constitution. For example, some substantive due process liberties may be protectable according to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment. Most originalists believe that rights should be identified and protected by the majority legislatively or, if legislatures lack the power, by constitutional amendments. The original perceived scope of the Due Process Clause was different from the one in use today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African Americans, legal scholar
Robert Cover Robert M. Cover (July 30, 1943July 18, 1986) was an American law professor, scholar, and activist. He taught at Yale Law School from 1972 until his death at age 42 in 1986. Cover wrote on a number of subjects, including the relationship of viole ...
argued in 1975 that a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment ... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause". The Thirteenth Amendment ultimately abolished slavery and removed the federal judiciary from the business of returning fugitive slaves. Until then, it was "scarcely questioned" (as
Abraham Lincoln Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation throu ...
put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law".


Judicial review

When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts now use two forms of scrutiny or
judicial review Judicial review is a process under which executive, legislative and administrative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incomp ...
. The inquiry balances the importance of the governmental interest being served and the appropriateness of the method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review,
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate th ...
, is used. To pass strict scrutiny, the law or the act must be both narrowly tailored and the least restrictive means of furthering a compelling government interest. If the governmental restriction restricts liberty in a manner that does not implicate a fundamental right,
rational basis review In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendme ...
is used, which determines whether a law or act is rationally related to a legitimate government interest. The government's goal must be something that it is acceptable for the government to pursue. The legislation must use reasonable means to the government's goals but not necessarily the best. Under a rational basis test, the burden of proof is on the challenger so laws are rarely overturned by a rational basis test. There is also a middle level of scrutiny, called
intermediate scrutiny Intermediate scrutiny, in U.S. constitutional law, is the second level of deciding issues using judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous). In order ...
, but it is used primarily in Equal Protection cases, rather than in Due Process cases: "The standards of intermediate scrutiny have yet to make an appearance in a due process case." To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest.


See also

*


References


Sources


Bernstein, David, "The History of 'Substantive' Due Process: It's Complicated," ''Texas Law Review See Also,'' 95 (2016), 1–11
* Lewis, Thomas Tandy. "The Ironic History of Substantive Due Process: Three Constitutional Revolutions." ''International Social Science Review'' Vol. 76, No. 1/2 (2001): 21-35. https://www.jstor.org/stable/41887055 * Katz, Claudio, "Protective Labor Legislation in the Courts: Substantive Due Process and Fairness in the Progressive Era," ''Law and History Review,'' 31 (May 2013), 275–323. * Keynes, Edward. ''Liberty, Property, and Privacy: Toward a Jurisprudence of Substantive Due Process.'' University Park: Pennsylvania State Press, 1996. {{DEFAULTSORT:Substantive Due Process American legal terminology Due Process Clause *