What is substantive due process?

Substantive due process is the doctrine under which the Due Process Clauses of the Fifth and Fourteenth Amendments protect certain fundamental rights from government interference, regardless of what procedures are used. While procedural due process focuses on the fairness of the process, substantive due process focuses on the substance of the law itself, asking whether government has any business regulating a particular subject at all. The Supreme Court has used this doctrine to recognize a series of unenumerated rights deeply rooted in American history and tradition.

The modern era of substantive due process began with rights related to family and child rearing. Meyer v. Nebraska (1923) struck down a state law that banned teaching foreign languages in schools, recognizing the right of parents to direct their children's education. Pierce v. Society of Sisters (1925) struck down an Oregon law that required all children to attend public schools, protecting the right of parents to choose private and religious schools. Skinner v. Oklahoma (1942) struck down a state law allowing involuntary sterilization of certain criminals, recognizing the right to procreate.

The Court extended substantive due process to privacy and intimate relationships in Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Lawrence v. Texas (2003). Roe v. Wade (1973) recognized a substantive due process right to terminate pregnancy in some circumstances, before being overruled in Dobbs v. Jackson Women's Health Organization (2022). Loving v. Virginia (1967) protected the right to marry across racial lines, and Obergefell v. Hodges (2015) extended marriage rights to same-sex couples. Cruzan v. Director, Missouri Department of Health (1990) recognized a right to refuse unwanted medical treatment. Saenz v. Roe (1999) protected the right to interstate travel.

Washington v. Glucksberg (1997) provided the standard test: a substantive due process right must be deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty.

The doctrine has critics across the political spectrum. Some argue that judges should not invent rights not specifically mentioned in the Constitution. Others worry about which rights deserve protection and how the historical analysis should be conducted. The Court has used substantive due process more cautiously since the early twentieth century when Lochner v. New York (1905) struck down maximum-hour laws as violating economic liberty before being repudiated in West Coast Hotel Co. v. Parrish (1937).

Naturalization candidates should know substantive due process as the constitutional source of unenumerated fundamental rights.