Wondering what is substantive due process? You may not have full knowledge of what it is and how it guards your rights. Read till the end to know the topic in detail.
Substantive due process is one of the most contested topics in the constitutional history of the United States. It has evoked mixed feelings among people- some hailing it as the guarantor of the rights and liberties of the people of the land, while others see it as an undue encroachment upon the rights and powers of the governments.
Substantive due process sprouts from the concept of constitutional due process in the U.S. constitution. It safeguard peoples’ rights from undue infringement of the governments. If a law is made that affects life, liberty and property rights of the people, substantive due process must be put to practice.
In substantive due process cases, the court has not only safeguard the rights of the people throughout history, the scope of the rights has even been expanded. There is a lot of history that goes into understanding the topic clearly. Read below to learn everything there is about substantive due process.
Table of Contents
Constitutional due process
The Constitution of the U.S. has mandated due process when a person is being investigated, evidence is gathered against him/her, determination of the legal grounds for a case, and when arrests are made. This due process is a must; the aforementioned important procedures are null and void if the constitutional due process is not followed in a case.
The constitutional due process is put in place to safeguard the fundamental rights and liberties of the people of the United States. The cases infringing upon constitutional liberties and fundamental rights are usually complicated, and an expert lawyer is required to move the court for constitutional due process.
What is procedural due process?
Procedural due process stops state and federal power by requiring certain procedures to be followed in civil and criminal matters.
The guarantee of the procedural due process makes sure you will have a fair trial, one presided over by a jury of your peers. If there is a problem with the procedures used to collect evidence or a problem with the methods used to secure a conviction, you can argue your procedural due process rights were violated. This can lead to excluding evidence from being used in court proceedings if collected illegally and overturning an unjust conviction.
What is substantive due process?
Substantive due process guarantees and ensures the public’s fundamental rights and keeps governments from infringing upon them without a warrant. Substantive due process protects the fundamental rights from all sorts of intrusion, even if it’s the government itself.
The people’s fundamental rights cannot be taken away in any case as the Constitution guarantees them. Even if a law is passed that infringes upon these essential rights, substantive due process comes into action to protect it.
Historically, It is speculated. Substantive due process has come into existence to protect the right to privacy- a fundamental right that wasn’t part of the fundamental constitutional rights. In 1905, the Supreme Court declared (indirectly though) a New York law concerning baker’s work hours a violation of the substantive due process. It was argued that bakers had no liberty to determine their work hours and limits, which were always forcefully dictated.
This was a groundbreaking case in the constitutional history of the United States that laid the foundation for evoking substantive due process clauses for all cases infringing upon the fundamental rights of a human. After this influential case and verdict, courts have repeatedly reiterated their concern over the fact that many of the laws passed by governments curtail civil liberties.
The courts have held that governments can make new laws affecting civil liberties and fundamental rights only if the new laws are fair, reasonable, and based on a solid and legitimate government interest.
The substantive due process essentially differentiates between procedural and substantive rights.
Procedural vs. substantive rights
There are essential differences between procedural and substantive rights. The procedural rights are in place so that the government’s duty to that legal procedures are followed in a fair and just manner (for example the right to a trial by a jury of one’s peers) for the protection of fundamental rights.
Procedural rights are, as the definition suggests, procedures that ensure a proper, fair, and legal application of the laws.
By contrast, substantive rights are general rights given to individuals by the Constitution itself and cannot be infringed upon by governments. For example, freedom of association, right to life, and liberty are all substantive rights- granted by the Constitution and protected by the land law.
Substantive and procedural rights are guaranteed by the Constitution and protected by the same. The rights enumerated in that theory cannot be taken away or changed without solid justification. The Fifth and the Fourteenth amendment guarantee those fundamental rights to the citizens of the United States that are irrevocable without a sufficient justification.
The right to privacy in the Constitution
“the right not to have one’s matters disclosed or publicized; the right to be left alone. The right against undue government intrusion into fundamental personal issues and decisions”.
There is no explicit guarantee in the U.S. Constitution to ensure the sacred right to privacy; historical cases, especially those about substantive due process, have upheld the right to privacy. Many Supreme Court decisions have upheld an implied constitutional right to privacy while abolishing laws that criminalize and penalize same-sex relations, abortion, and contraception.
According to the Supreme Court rulings, the Due Process Clause duly protected the rights to “personal autonomy, bodily integrity, self-dignity, and self-determination.” These constitutionally protected rights are used as a base to justify the right to privacy- equally protected by the Constitution.
The right to privacy first came under scrutiny in the historical case of Griswold v. Connecticut, 1965, in which the Supreme Court ruling upheld the right to contraception and that it was unconstitutional for the governments to meddle with these private rights of individuals.
Again, in Roe Vs. Wade case, the constitutionally protected right to privacy became a hot topic when the Supreme Court’s significant but very controversial ruling considered it a violation of the due process clause and an individual’s right to terminate pregnancy in the first trimester.
Other rights that are protected by the right to privacy include:
- The right of parents to raise their children as they wish,
- The right for extended family members to share a home
- The right of competent adults to refuse life-saving medical procedures
- The right to engage in same-sex sexual relations (Lawrence v. Texas)
Criticism of the substantive due process clause
Critics believe that the due process clause essentially disturbs the balance of power among various branches of the government, giving the judiciary undue leverage. With the powers vested in the courts by the clause of substantive due process, the courts can abolish governmental laws that go against the laws guaranteed by the Constitution.
It gives the power to the courts to overturn even those laws that implicitly and not explicitly violate the constitutional laws and guarantees.
According to the critics, the power to overturn laws that are deemed unconstitutional gives too much power to the courts. They believe that only those laws should be repealed by the courts that explicitly go against the Constitution.
For the staunch opposers of the substantive due process clause, the courts gain limitless powers disturbing the functionality of the government. For some, only the ostentatiously unconstitutional laws should be abolished by the courts and not at all the ones just implied violations of the Constitution.
Supporters have a very different stance, though. Supporters of the theory are of the view that the substantive due process clause is the best guardian of fundamental human rights, as enumerated in the Constitution. Without such a clause, governments will easily and freely create new laws negating essential human rights.
The Supreme Court of the United States is deemed the biggest safeguard of fundamental human rights worldwide. It is a beacon of light and guides all judicial systems, and a big chunk of the appreciation is due to the powers vested in courts under the substantive due process clause.
What is due process?
The term “due process” appears in the Fifth and the Fourteenth Amendments of the United States Constitution.
- The Fifth Amendment guarantees says that “no person shall be deprived of “life, liberty, or property, without due process of the law.”
- The Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.
The Fourteenth and the Fifth clauses are a guarantee of individual fundamental rights against any intrusion, be it the government of the land. Depriving the individuals of essential liberties is not allowed even when the violator is the government itself.
The concept of substantive due process came from the English Common law. The Magna Carta (1215) declared some rights to be inviolable, for example, the right to not be seized without lawful procedure. It was civilization’s first step towards constitutional guarantees like the ones we have today.
Today, Constitutional due process offers protection against governmental encroachment at many levels. It has been interpreted as legal protection not just for criminal defendants but for every individual of the state.
Substantive due process in history
Substantive due process was not part of the Constitution until the Fourteenth amendment. The said amendment was ratified at the end of the Civil War in 1968.
In the first sentence, the fourteenth amendment grants citizenship to all freed slaves.
The second sentence has three main provisions:
1) The Privileges and Immunities Clause
2) The Due Process Clause
3) The Equal Protection Clause.
The substantive due process started making its impact with the Fourteenth Amendment and the case of Lawrence for gay rights. In its historic decision in the Lawrence case, the Supreme Court declared that the Due Process Clause of the Fourteenth Amendment protects consenting adults’ rights to engage in homosexual acts. In doing so, the Court also upheld the right to privacy (a right not discussed in the Constitution).
This decision reversed the Court’s ruling in the famous Bowers V. Hardwick (1986)- a case that had validated Georgia’s sodomy laws. The decision was a landmark in the history of the United States, and it was hailed as a historic decision in the wake of civil rights in The United States.
Conservatives, on the other hand, criticized the decision calling it the moral decay of the society. The ruling, in this case, started the long history of decisions taken and justified under the substantive due process clause.
Substantive due process is, by far, the most complicated notion of constitutional law in the United States. The Court uses it to resolve extremely controversial and contested topics pertaining mostly to political morality, but the exact theory behind decisions of substantive due process is yet to be determined, so the decisions are fully explained and justified.
Currently, Three theories are used while deciding cases of substantive due process as no single theory can justify the decisions alone.
Theories Behind Substantive Due Process
1-Historical tradition theory
According to the historical tradition theory, the substantive due process only protects those liberties and fundamental rights deeply rooted in the history and traditions of the United States.
This approach was used in the historical Bowers case and again reaffirmed in the Washington v. Glucksberg (1997), in which the Court refused the right to physician-assisted suicide. Looking at the historical context, it can be said that both Bowers and Glucksberg were correctly decided. In the famous Lawrence case, however, the Court reversed Bowers’ interpretation but not the one-handed to Glucksberg. This leads to the belief that the historical approach still holds firm ground in substantive due process cases.
2- Reasoned judgment
The second theory is that of reasoned judgment. The reasoned judgment theory frees the substantive due process from the realms of traditions and history only. This theory says that substantive rights are not limited to historical traditions only.
The Supreme Court does not have to restrict its judgment to historical evidence only; according to the theory of reasoned judgment, the Court is free to identify the rights of the people of the U.S. through a process that’s more like philosophical analysis or political-moral reasoning.
According to the theory of reasoned judgment, the Court freely judges the fundamental rights and interests of individuals, and they are weighed against contesting governmental concerns. According to its reasoning, it is the Court’s prerogative to judge if a liberty interest constitutes a constitutional right and deserves the same constitutional protection as any other fundamental right granted by the Constitution.
This approach was applied in Planned Parenthood of Southeastern Pennsylvania v. Casey, reasserting the reasoning of Roe v. Wade. Precedence was not the only reason behind the decision; the Court also applied “reasoned judgment.” While determining the case, the case, the liberty interest of a woman seeking an abortion was evaluated afresh. The Court concluded that
Historical tradition and reasoned judgment have dominated the Supreme Court’s judgment criterion, but a slight shift towards another theory is also visible. For example, the Court deliberately turned to recent developments after discussing the history of the sodomy regulations in great detail. It was asserted that “emerging awareness” is essential in determining the true scope of personal liberties and rights.
These developments have planted the seeds for the potential emergence of an entirely different theory of evolving national values.
3- Evolving national values
According to this third theory, the substantive due process includes a progressive dimension in addition to being informed by history. Precisely, substantive due process protects a set of evolving national values that command widespread national support and are supported by new legal developments and contemporary societal understandings that may change over time.
Substantive due process is a very important part of the United States Constitution. It protects the constitutional liberties of the people of the nation against encroachment. Substantive due process is hailed as the guarantor of the rights of the people. At the same time, the critics see it as an encroachment upon the powers of legislature and governments. There are three different theories for judging cases pertaining to substantive due process. The concept of substantive due process is forever evolving, taking in new socio-legal societal developments.