Learning the Law: Substantive Due Process

by Dan Ray

Most of you know that I used to teach constitutional law for a living. That was the genesis for our idea to start a “Learning the Law” column that we’re making a regular feature of the blog. From time-to-time, Brendan or I will do a post, or perhaps a series of posts, about a legal topic that may be of interest. If you have questions or want to learn more, feel free to speak up. We’ll both respond to questions and we’re happy to provide more information. Today’s subject is something called substantive due process of law. Because there is a fair amount to unpack here, even for what will amount to a basic discussion, we’ll be doing a series of posts on this one.

Everyone has heard the term due process of law. When you hear it, you naturally think about process and procedure. We tend to equate this idea with our notions of fairness and justice; a criminal defendant is entitled to due process before the state can convict and imprison him. This kind of procedural due process is a critical part of due process of law, but it will be a subject for a later Learning the Law series. We focus here on substantive due process. Our concern here isn’t so much with procedure. Instead, substantive due process is concerned with the legal standard the government must meet if it wants to impair your ability to exercise certain rights. Sounds like a lot of complicated stuff, but the basics are pretty straightforward.

When we’re trying to understand the meaning of a text, we always start with the text itself. There are actually not one, but two due process clauses found in the Constitution. The Fifth Amendment directs that “[n]o person shall … be deprived of life, profliberty, or property, without due process of law.” The Fourteenth Amendment contains similar language: “…nor shall any state deprive any person of life, liberty, or property, without due process of law.” A couple of preliminary points deserve mention. First, why two due process clauses? That’s easy. The Fifth Amendment, being part of the original Bill of Rights, applies only to the federal government. The Fourteenth Amendment, ratified in 1868, binds the states, not the federal government. Second, note the deliberate use of the word “person” in both clauses. The framers of these guarantees considered them so important that they extended their protections not just to citizens, but to all persons. Yes, Virginia, even undocumented aliens and others are entitled to due process of law.

Most of the action, where due process of law is concerned, deals with the “liberty” component of the clause. These amendments protect your freedom to do things. What things? Name it. You have a liberty interest in walking down the sidewalk in the evening with your spouse. You have a liberty interest in eating vanilla ice cream with chocolate sauce on top. You have a liberty interest in painting your house whatever color you like. Most of these are what we might call garden-variety liberty interests, meaning they protect your ability to engage in routine activities of everyday living. Note, importantly, that neither the Fifth nor the Fourteenth Amendment provides a list of the liberty interests they protect. That would be impossible, wouldn’t it? Instead, the framers thought it enough to protect “liberty” and to let the courts decide what liberty entails.

But not all liberty interests are so mundane or routine. Some of them – a small handful – are considered exceptionally important, so much so that courts often refer to them as fundamental rights. But there’s a bit of a catch, and we just touched on it above while talking about liberty interests: when we speak of fundamental rights, we’re usually speaking of rights that the courts, and in particular the United States Supreme Court, have declared to be so important that they are fundamental. They are, to put it a bit differently, unenumerated fundamental rights, which means that they are not specifically mentioned in the text of the Constitution. (There are fundamental rights that are enumerated in the constitutional text. The Second Amendment right to keep and bear arms is an example.) For purposes of this discussion, the fundamental rights we’re concerned with are those which are unenumerated, and which courts trace to the protection of the due process clauses.

Two questions immediately spring to mind. What are these unenumerated fundamental rights? And how do courts decide that these rights, in particular, are important enough that they should be fundamental? We’ll tackle these two questions, then call it a day.

The Supreme Court has deliberately made the list of unenumerated fundamental rights very short. Today, these rights fall under the umbrella of what we might call the right to privacy or the right to individual autonomy. Most often mentioned are: (1) the right to marry; (2) the right to the care, custody, and control of your minor children; (3) the right to procreate, as well as the right not to procreate – that is, to use contraception or, under some circumstances, to have an abortion; and (4) the right to live together with persons to whom you are related by blood, adoption, or marriage.

A quick look at this list reveals why they’re considered so important. These rights go the most basic and important decisions we make for ourselves and those close to us. They help us to define who we are, and what we are about. These rights shape our lives, and the lives of those who are most important to us, in critical ways. They help us to form and nurture relationships with those we love. In other words, these rights go a long way in defining ourselves and how we relate to the world.

How do we decide which rights are important enough to make the cut? The test, which we’ll talk about in a moment, isn’t black-and-white. There is a degree of judgment and subjectivity involved, and for this reason, substantive due process comes in for some justified criticism. We’ll try to take that up in a later post, too.

Courts use a couple of tests, or standards, to decide whether a right is – or should be – called fundamental. The most oft-used goes something like this: Is the liberty interest at issue one that is deeply rooted in our nation’s history and traditions, to such an extent that it has received special protection from the law? Now, have a look at the list again. Each of those rights is one we can probably agree is an important and longstanding part of our nation’s history and traditions. Marriage, family, and childrearing are essential parts of our national history, and our laws certainly offer these rights and relations significant protections.

You’ve probably figured out that when it comes to deciding if a liberty interest is also a fundamental right, there is room for some disagreement. And indeed there is. One place where judges and lawyers often disagree is over how a liberty interest should be described. Here’s a simple example, taken from a well-known case called Michael H. v. Gerald D. This was a paternity case. Michael fathered a child by the wife of Gerald. Michael wanted to be legally recognized as the child’s father, and he argued that he had a fundamental right to such a relationship. But Gerald and his wife objected. They were willing to recognize the child as a child of the marriage, and to raise it as their own.

If you check our list above, you’ll see that Michael’s claim seems to fit quite neatly into Category 2. But the Supreme Court found that Michael had no such fundamental right. Why? Justice Scalia, writing for the Court, asked whether we have in this country a history and tradition of protecting the parental rights of a man who fathers a child with another man’s wife, when the married couple is willing to treat the child as their own and to raise and be responsible for it. When the question is phrased that way, it is easier to see how Michael might lose.

Why does all this matter? Because, as we will see, whether a liberty interest is just a liberty interest or is also a fundamental right controls the standard the government must meet if the government wants to interfere with your ability to exercise that right. If the government interferes with the exercise of a mere liberty interest, it need only satisfy the rational basis standard. But if the government substantially interferes with the exercise of a fundamental right, the government must satisfy a much more demanding standard called strict scrutiny.

In our next installment, we’ll develop a basic substantive due process analytical model, and we’ll find out why the difference in these standards is crucial.


2 thoughts on “Learning the Law: Substantive Due Process

  1. This column hasn’t shown up on Facebook, so I shared it on my Timeline. It is extremely interesting and educational. I very much appreciate your taking the time and effort to help us have a better understanding of the various aspects of Constitutional Law.


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