Substantive Due Process

Substantive due process is a phrase describing constitutional limitations on the government, usually to secure rights not elsewhere identified in the Constitution. Coined in the mid-twentieth century in debates concerning the proper role of the courts, the phrase originally encoded a criticism of perceived judicial overreaching and even today is not always merely descriptive. Substantive due process is contrasted with ‘‘procedural due process,’’ the correlative phrase describing proper legal procedures. By the late twentieth century, substantive due process was divided into economic substantive due process, largely inactive, and noneconomic (or social) substantive due process, which although not uncontested is steadily expanding. All are rooted in the due process clauses of state and federal constitutions. The Fifth Amendment in the Bill of Rights prohibits the federal government from depriving any person of ‘‘life, liberty, or property, without due process of law,’’ and the Fourteenth Amendment, adopted after the Civil War, extends the same prohibition to the states. State constitutions contain similar limitations, sometimes using the older phrase ‘‘law of the land.’’ The current North Carolina Constitution, for example, carrying forward wording from the Declaration of Rights in the North Carolina Constitution of 1776, provides that ‘‘No person shall be . . . in any manner deprived of his life, liberty, or property, but by the law of the land.’’ The present New York Constitution actually has both due process and law-of-the-land clauses. Although suggestive, the constitutional phrases themselves are hardly self-explanatory, and a long history lies behind the current understandings.

Historical Background

Every legal system that deserves the name has some concept of proper procedure (‘‘due process’’), procedure according to settled legal forms (‘‘the law of the land’’), but the specific concept that eventually gained constitutional footing in the American legal system is deeply rooted in the English legal tradition. In Magna Carta (1215) the tyrannical King John was compelled by his rebellious barons to promise that ‘‘no free man shall be taken or imprisoned or disseised or outlawed or exiled, or in any way ruined, nor shall we go or send against him, except by the lawful judgment of his peers or by the law of the land.’’ At the time, the common law courts were still in the process of formation, and legislative and executive functions of government were not yet clearly distinguished; the concept of separation of powers lay in the distant future. Five hundred years later, when parliament and the courts were well established and English liberties were again threatened by an overreaching king, opponents of royal power took a renewed interest in medieval restraints on the government. Commenting on Magna Carta, Sir Edward Coke related the requirement to proceed only according to ‘‘the law of the land’’ to a phrase in a fourteenth-century statute requiring ‘‘due process according to the common law.’’ A zealot for the English legal tradition, Coke saw in due process a judicial restraint on king and parliament alike. By the eighteenth century, constitutional theorists like John Locke and lawyers like Sir William Blackstone had translated the medieval language of Magna Carta into the memorable trinity of ‘‘life, liberty, and property.’’ All the necessary ingredients were now at hand for the American constitution makers. Ironically, ‘‘law of the land’’ and ‘‘due process’’ eventually lost their currency in England, limited by the doctrine of parliamentary supremacy and superseded by the vaguer phrase ‘‘rule of law,’’ but they have flourished ever after in their new home.

Not only was due process a common law concept long before any American constitution, its jurisprudence was developed by American judges schooled in the common law way of doing things. Case by case, as the nation developed economically and socially, content was given to due process and to the rights it safeguarded: life and property, but above all liberty. The requisites of proper procedure, particularly criminal procedure from arrest and detention through trial and final punishment, were detailed in other constitutional provisions of considerable specificity, but the general guarantee of due process remained for abuses not specifically provided for; for example, a state statute that gave a magistrate a share of the fines imposed in case of conviction. In Tumey v. Ohio (1928) a unanimous Supreme Court held that for a judge to have a financial interest in the outcome of a case ‘‘certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law.’’ Characteristic of the time, the court did not bother to define the violation as either ‘‘procedural’’ or ‘‘substantive,’’ although by then the dichotomy (but not the labels) had emerged.

Economic Substantive Due Process: Liberty of Contract

Only a few years before Tumey, the Supreme Court had categorically declared in Adkins v. Children’s Hospital (1923) that under the constitution ‘‘freedom of contract is the general rule and restraint the exception,’’ and invalidated a minimum wage law for working women in the District of Columbia. Statutes that imposed restrictions on freedom of contract were presumed unconstitutional unless proven otherwise. The authority for this remarkable constitutional doctrine was also the due process clause; this time, because federal law was involved, the due process clause of the Fifth Amendment. Two developments had made it possible: first, liberty had been given an expansive definition to include not only freedom from illegal confinement (freedom of motion), but also freedom to engage in economic activity (freedom of contract); second, the demands of due process had been enlarged to include not only how the government proceeded but also what it did. Just as important as what was taken—life or property or some version of liberty— was that nothing be taken without good cause. Even with proper procedures, the government had not only to seek constitutional ends but also to demonstrate to the judges, if necessary, that the chosen means were reasonably related to those ends. In this sense, due process had acquired substance.

The origins of substantive due process can be traced to the middle of the nineteenth century. There were scattered references in Supreme Court opinions, including the notorious Dred Scott Case (1857), but these incunabula were not themselves the source of later developments, rather an indication of what determined judges could do with the due process clause. More fruitful seedbeds were the state courts, particularly their decisions in the troublesome cases generated by state prohibition statutes. In Wynehamer v. People (1856), for example, New York’s highest court found that a statute violated due process as applied to liquor in stock at adoption. In the Supreme Court itself more obvious sources were the dissenting opinions of Justices Joseph P. Bradley and Stephen J. Field in the Slaughterhouse Cases (1873), listing a series of individual economic liberties supposedly protected from government interference. Although originally claimed to be incidents of American citizenship and protected by the privileges and immunities clause of the Fourteenth Amendment, the rights eventually found a home in the due process clause. In Allgeyer v. Louisana (1897), the court first recognized freedom of contract as an aspect of liberty and held that no state could deprive any person of that freedom ‘‘without due process of law,’’ that is, unless it could show that the restriction was reasonably related to an acceptable government purpose. Because the court had earlier decided that a corporation was a ‘‘person’’ within the meaning of the due process clause, the result was to transform that clause into a virtual ‘‘Magna Carta for American business,’’ a particularly ironic result because the Fourteenth Amendment had originally been adopted to overturn the Dred Scott Case and secure the civil rights of newly freed slaves. The impact of substantive due process extended far beyond the relatively small number of statutes actually invalidated; the legitimacy of regulatory legislation in general was called into question and, by raising the threat of an eventual judicial veto, the difficulty of securing legislative passage was greatly increased.

Although applicable to restraints on all commercial activity, freedom of contract found its most contentious application in cases of attempted regulation of labor. The most notorious example, giving its name to an entire era of due process jurisprudence, was undoubtedly Lochner v. New York (1905), in which the Supreme Court declared unconstitutional a state statute limiting the working hours of bakers. The Lochner question, ‘‘Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty to enter into those contracts in relation to labor?’’ meant that much labor law was subject to searching judicial inquiry. Freedom of contract as protected by the due process clauses meant, for example, that neither the federal nor the state government could outlaw the so-called yellow dog contract, by which certain employers required their workers as a condition of employment to agree not to join a labor union. State courts, too, invoked the due process clauses to invalidate popular legislation. In Ives v. South Buffalo Railway Co. (1911), for example, New York’s highest court held the state’s new worker’s compensation statute, one of the nation’s first, unconstitutional.

Just as procedural and substantive due process are occasionally difficult to distinguish, so the line between economic and noneconomic substantive due process is sometimes difficult to draw. In Meyer v. Nebraska (1923), the Supreme Court held that a state statute forbidding the teaching of foreign languages in primary schools violated due process, and in Pierce v. Society of Sisters (1925) it held that due process prevented a state from denying the right to operate private schools. Although at the time of their decision it was possible to analogize these cases to interference with the free market, it is also possible to see in them an emerging recognition of aspects of liberty other than freedom of contract: freedom of speech and association, freedom to acquire information, parental rights in educational decisions, and—of most consequence for the later development of the law of due process—‘‘the right to be let alone,’’ better known today as the right to privacy.

Although tolerable during economic boom times and under pro-business political leadership, a constitutional guarantee of freedom of contract was to lead the Supreme Court into conflict with the new political leadership called forth by the economic depression of the 1930s. The result was a humiliation for the court, which belatedly acknowledged in West Coast Hotel Co. v. Parrish (1937) that, in fact, ‘‘the Constitution does not speak of freedom of contract.’’ The next year in United States v. Carolene Products Co. (1938) the court executed a volte-face and announced that it would henceforth presume the constitutionality of ‘‘regulatory legislation affecting ordinary commercial transactions,’’ but at the same time warned that it would not extend the presumption to restrictions on civil rights, thereby implicitly splitting the judicial concept of liberty into economic and noneconomic components. Thus was born the doctrine of ‘‘preferred freedoms,’’ the notion that some rights are entitled to more judicial protection than others.

Noneconomic Substantive Due Process: Liberty

Many who today acclaim the expansion of due process to protect privacy prefer not to recognize the relationship of modern law to the now discredited doctrine of freedom of contract, but noneconomic (or social) substantive due process is organically connected to its economic precursor. Case by case, the liberty protected by due process became successively liberty (or freedom) of contract and then a growing array of civil liberties, collectively described as the right to privacy. The connection is obscured by the fact that the Supreme Court, in keeping with its constitutional about-face in the 1930s, acted for some time as if substantive due process had lost its vitality. In Ferguson v. Skrupa (1963), for example, the justices declared: ‘‘We emphatically refuse to go back to the time when courts used the due process clause ‘to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’’’ So it is not surprising that two years later when the court in Griswold v. Connecticut (1965) invalidated state statutes outlawing the distribution of birth control materials to married persons, now recognized as a substantive due process decision, rationalized its holding instead by a complicated theory of privacy protected by the ‘‘penumbras,’’ or shadows, cast by a variety of rights enumerated in the Bill of Rights—notably not including the due process guaranteed by the Fifth Amendment.

A further complicating factor is illustrated by the use made in Griswold of the due process clause of the Fourteenth Amendment. Because the Bill of Rights applies only to action by the federal government and because it specifies a number of rights not included in the text of the Fourteenth Amendment, which applies only to state action, the due process clause of the Fourteenth Amendment has become a vehicle through which most of the Bill of Rights is applied to the states. The Fourteenth Amendment is said to ‘‘incorporate’’ the Bill of Rights, a doctrine that may be seen as a judicial response to the criticism that substantive due process is vague and standardless: reference to the rights enumerated in the Bill of Rights adds a degree of specificity. The decision in Rochin v. California (1952), for example, that use by state law enforcement officers of incriminating evidence obtained by pumping the stomach of an unwilling suspect violated due process because it ‘‘shocks the conscience’’ could now be explained more straightforwardly as a violation of the privilege against selfincrimination in the Fifth Amendment, applied to the states through the Fourteenth Amendment. When the only role of the due process clause of the Fourteenth Amendment is to incorporate parts of the Bill of Rights, due process is not substantive in the usual sense of that word; that is, it is not itself the source of the constitutional limitations. The incorporation doctrine has led to the rapid development of rights once protected by an undifferentiated due process; for example, the takings clause of the Fifth Amendment, prohibiting the government from taking private property for public purposes without just compensation, has been invoked in challenges to state regulations that would formerly have been scrutinized for deprivations of property without due process of law. Indeed, it may be that emptying due process of much of what once was considered its content and leaving it as a residual category, invoked in only the most controversial cases, explains many of the difficulties surrounding its current use.

When a few years after Griswold its holding was extended to unmarried persons in Eisenstadt v. Baird (1972), now also recognized as a substantive due process decision, the result was technically justified as an application of the equal protection clause of the Fourteenth Amendment. The same law, it was held, must be applied to married and unmarried couples alike, but in explaining the court’s decision, Justice William J. Brennan implicated issues beyond equality of treatment: ‘‘If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.’’ Thus was the stage set for the abortion decision that soon followed— and for a more self-conscious development of substantive due process as a guarantee of the individual’s noneconomic (or social) interests. All that was required for the latter was for the right of privacy to emerge from the shadows and be recognized as an aspect of liberty and for due process to recover its role not only as a guarantee of procedural fairness but also as a safeguard against ‘‘unwarranted’’ government action.

The year after Eisenstadt, in Roe v. Wade (1973), the court summarily held state laws banning almost all abortions ‘‘violative of the due process clause of the Fourteenth Amendment.’’ A more comprehensive statement was attempted two decades later in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), largely reaffirming Roe and explaining that the liberty protected by due process included ‘‘personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.’’ To intrude into such personal decisions the state needed a compelling reason. An invitation to extend the list to include homosexual sexual activity (‘‘gay rights’’) had been rejected in Bowers v. Hardwick in 1986, only to be accepted later in Lawrence v. Texas (2003), which overruled Bowers and held state sodomy laws unconstitutional. The guarantee of due process is not found only in the federal constitution nor is the development of substantive due process a monopoly of federal courts. In Goodridge v. Department of Public Health (2003), the Massachusetts Supreme Judicial Court, extending the reasoning in Lawrence, held that the state’s refusal to recognize the marriage of same-sex couples was a violation of the due process protected by the state constitution’s law-of-the-land clause. Due process, in the nineteenth century the watchdog of the free market, when freedom of contract had created a zone around the individual of what we would today call, if not privacy, at least autonomy, had become in the twentieth century the guardian of autonomy in intimate relations.

Whether the liberty protected by due process will be extended to other personal matters remains to be seen. In 1977 in Whalen v. Roe, the Supreme Court rejected a challenge to state collection and storage of confidential medical information as not a violation of privacy where the state had reasonable grounds for creating the databank and took adequate measures to secure it from misuse, and twenty years later in Washington v. Glucksberg (1997) an argument to recognize the right of the terminally ill to physician assistance in the commission of suicide (‘‘the right to die’’) was narrowly rejected. Economic interests retain some residual due process protections. In BMW of North America, Inc. v. Gore (1996) the court rejected excessive punitive damages, ostensibly because of a failure to give adequate notice, a violation of procedural due process, although some observers, including two dissenting justices, thought the case was better understood as a revival of economic substantive due process.

Objections to the latest iteration of substantive due process resemble those once voiced against freedom of contract. To textualists the results seem remote from the bare words of the constitution, as indeed they are. Due process encoded a whole tradition of constitutionalism, as well as a common law dynamic of development; the phrase has always required considerable judicial explication. More serious is the complaint that using due process to fill gaps left by enumerated rights, justifiable in the case of obvious procedural abuses like the self-interested judge, becomes, when extended to the recognition of unenumerated rights, an invitation to a judicial majority to write its own preferences into the constitution. Freedom of contract was to one generation of judges what the right to privacy is to another. The response must be to emphasize the cautious and incremental nature of the judicial development: from case to case the linkages are reasonably sound. The disagreement may depend on the exact point of departure. Relevant here is Justice Antonin Scalia’s insistence, vehemently voiced in his dissenting opinion in Lawrence, that judges should be guided in their development of substantive due process by ‘‘history and tradition,’’ rather than by ‘‘law-profession culture’’ with its tendency to ‘‘carry things to their logical conclusion.’’ The disagreement, in other words, is not about whether there are unenumerated rights protected from arbitrary government action by the requirement of due process—constitutional democracy means limits on government, and rights enumerated in written constitutions can never be comprehensive—but what exactly they are or should be.


References and Further Reading

  • Orth, John V. Due Process of Law: A Brief History. Lawrence: University Press of Kansas, 2003.
  • Phillips, Michael J. The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s. Westport, Conn.: Greenwood Press, 2001.
  • Strong, Frank R. Substantive Due Process of Law: A Dichotomy of Sense and Nonsense. Durham: Carolina Academic Press, 1986.

Cases and Statutes Cited

  • Adkins v. Children’s Hospital, 261 U.S. 525 (1923)
  • Allgeyer v. Louisana, 165 U.S. 578 (1897)
  • BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)
  • Bowers v. Hardwick, 478 U.S. 186 (1986)
  • Dred Scott Case, 60 U.S. 393 (1857)
  • Eisenstadt v. Baird, 405 U.S. 438 (1972)
  • Ferguson v. Skrupa, 372 U.S. 726 (1963)
  • Goodridge v. Department of Public Health, __ N.E.2d __ (Mass. 2003)
  • Ives v. South Buffalo Railway Co., 194 N.E. 431 (N.Y. 1911)
  • Lawrence v. Texas, __ U.S. __ (2003)
  • Lochner v. New York, 198 U.S. 45 (1905)
  • Meyer v. Nebraska, 262 U.S. 390 (1923)
  • Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  • Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)
  • Rochin v. California, 342 U.S. 165 (1952)
  • Roe v. Wade, 410 U.S. 113 (1973)
  • Slaughterhouse Cases, 83 U.S. 36 (1873)
  • Tumey v. Ohio, 273 U.S. 510 (1928)
  • United States v. Carolene Products Co., 304 U.S. 144 (1938)
  • Washington v. Glucksberg, 521 U.S. 702 (1997)
  • West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
  • Whalen v. Roe, 429 U.S. 589 (1977)
  • Wynehamer v. People, 12 N.Y. 378 (1856)


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