What is Substantive Due Process?

In the United States (US), substantive due process refers to those rights that, while not specifically mentioned in the US Constitution, are nevertheless recognized because they are "implicit in the concept of ordered liberty," according to the US Supreme Court. For instance, many substantive due process cases discuss the constitutional right to privacy, even though the word privacy does not appear in the constitution. These rights arise from the Fifth and Fourteenth Amendments to the constitution, which prohibit the government from depriving citizens of "life, liberty, or property, without due process of law." Substantive due process rights are mainly concerned with the liberties of citizens.

The US Supreme Court first recognized a substantive due process right in the 1930s, when it struck down federal minimum wage laws and child labor laws on the grounds that they violated a substantive "freedom of contract." In modern times, the Supreme Court deals with substantive due process rights in three main areas that are described in United States v. Carolene Products Co.. These areas include the first eight amendments to the constitution; rights related to the political process, such as voting; and the rights of "discrete and insular minorities," such as racial groups. Other substantive due process rights the Supreme Court has recognized include the right to marry, discussed in Loving v. Virginia; the right to have children, discussed in Skinner v. Oklahoma; and the right to have one's children instructed in a foreign language, in Meyer v. Nebraska.

When analyzing a situation in which the government may have violated a substantive due process right, a court first asks if the right at issue is a fundamental right. Fundamental rights are those that are deeply rooted in American history or tradition. If the right is a fundamental right, the court applies what is known as strict scrutiny, in which it asks if the violation is narrowly tailored to meet a compelling government interest. If the court finds the right is not a fundamental right, it applies rational basis review, which asks whether the government's violation of the right is rationally related to a legitimate state interest.

Substantive due process is different from procedural due process. It is also guaranteed by the Fifth and Fourteenth Amendments. Procedural due process guarantees the right to be informed about government activities that may infringe on a particular right and the opportunity to be heard on the issue.