What is Substantive Due Process?

A Guide to Substantive Due Process in the U.S. Constitution

Substantive due process is the idea that the U.S. Constitution protects certain fundamental rights, even though they are not explicitly mentioned, through the due process clauses of the 5th and 14th amendments. For over 70 years, the U.S. Supreme Court has ruled that these fundamental rights generally include the right to privacy, sexuality, family planning decisions regarding reproduction and contraception, as well as decisions about marriage and the education of one’s children, and until June 2022, abortion.

But if you read the Constitution, you may notice that it says nothing specifically about a right to privacy, or marriage, or children. These rights have been inferred from the due process clauses of the 5th and 14th Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of “life, liberty, or property, without due process of law.”

Taken literally, the phrase means that the government may deprive a person of life, liberty, or property, as long as it provides a fair process before doing so. Generally this means the person the government intends to take action against must have adequate notice of the actions and a hearing to have the opportunity to defend themselves. This is known as procedural due process.

But substantive due process is more conceptual. It’s the idea that certain liberties (rights) are so fundamental that it doesn’t matter how much or how fair the process is, the government may not infringe on these rights, without a really good reason. Thus, if there is no compelling reason for the government to deprive people of their liberty, then no amount of process is sufficient, and the state or federal government’s law is not considered a proper law, or a “true” law at all, really. So, there has been no due process of law, and the law is invalid and unconstitutional.

How Has Substantive Due Process Been Applied?

As an example, here’s how it has applied to reproductive rights (prior to June 2022). Say a state passes a ban on all abortions. The Supreme Court has said the right to abortion is a fundamental right. Thus the state law may not deprive people of their right to an abortion without a compelling reason.

The Supreme Court has said protection of a potentially viable fetus is a compelling reason, and thus the state may limit abortions of potentially viable fetuses. But because there is no compelling reason to ban abortions of non-viable fetuses, a full ban on abortion is a violation of a fundamental right, and the state has thus deprived individuals of their liberty without providing due process of law.

How Does the Court Determine What are Fundamental Rights?

That’s a very good question, and the court itself doesn’t seem to know. Some cases and justices have said fundamental rights are those that have been accepted and recognized in the country’s history and traditions. Other cases and justices have a more modern view, and assert that a fundamental right is one which is generally accepted today as a core human right.

Criticisms of Substantive Due Process

Although the substantive due process doctrine has been used by the Supreme Court since at least the 1850s,1See Dred Scott decision it has also always been subject to criticism. The current Supreme Court looks to be narrowing its scope. In particular, the Court has overturned Roe v Wade by discrediting the substantive due process-based protection of reproductive rights.

Related Pages

Reproductive Rights

Guide to the U.S. Constitution

What Can and Can’t the Government Do?

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