Substantive Due Process

The constitutional doctrine of substantive due process can be traced back to the English idea of a fundamental but unwritten constitution and flows forward to modern constitutional guarantees of privacy. Though its antecedents include basic notions of republican government and individual civil rights, our modern notions of substantive due process are founded upon Justice Stephen J. Field's dissent in the Slaughterhouse Cases (1873). Behind the spare language of the Due Process Clause of the Fourteenth Amendment that barred Louisiana's statutory conferring of a monopoly upon a single slaughterhouse, Field discerned inalienable individual liberties:

Clearly among these must be placed the right to pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons. … The equality of right, with exemption from all disparaging and partial enactments, in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. (pp. 97, 109–110)

Free‐Labor Ideology

Field brought to his dissent the powerful free‐labor ideology of the victorious Republican Party. Before the Civil War, he had been a leading Republican jurist and judge; after the war he transformed this notion of equality into constitutional opinions. In his dissent in the Slaughterhouse Cases and in Munn v. Illinois (1877), Field clung to his own personal version of this free‐labor ideology. He admitted that states had the right to regulate the economic activity of public enterprises, like the grain elevator companies in Munn, when that regulation was evenhanded and served a genuine public need. But regulation of public businesses and private enterprises had no natural stopping place; it might, Field wrote in Munn, “justify an intermeddling with the business of every man in the community, so soon, at least, as his business became generally useful” (p. 141).

Though not a major theme in substantive due process scholarship, which instead focuses on the doctrine as a defense of property, it is apparent that Field's concern was the protection of free‐labor ideology. Ironically, Field's antebellum Republican views better fit the Gilded Age than they did the Reconstruction era. His view of the Due Process Clause gained ground in the almost entirely reconstituted Court of the late 1880s and 1890s. Field was never as comfortable with giant corporations as newer members of the Court, such as Justices David Brewer and Rufus Peckham, but his ideal of liberty of enterprise became the orthodoxy of the Court in the late nineteenth century. Field's concurrence in Butcher's Union Co. v. Crescent Co. (1884), a direct descendent of the Slaughterhouse Cases, expressed this vision: the “liberty of the individual to pursue a lawful trade or employment” was a “common right,” one of the “certain principles of morality … without which society would be impossible, … [one of the] certain inherent rights [that] lie at the foundation of all action.” “[U]pon them alone,” Field wrote, “can free institutions be maintained” (p. 756).

For the Court, substantive due process was the wedge by which states were barred from abridging freedom of contract and liberty of enterprise. Substantive due process would take on a life of its own, but at its heart it remained a vision not of constitutional law but of a good society whose free marketplaces were managed by a benevolent, invisible hand. Equality of opportunity would be undermined by class legislation. Too much state intervention would pervert and destroy the natural relationships by which the United States had become an economic giant. One may say with much truth that freedom of contract theory was as responsible for the formulation and continuing vitality of substantive due process as substantive due process was for the legitimation of freedom of contract.

The Court expanded its jurisdiction by holding the states to a substantive due process standard (see Judicial Power and Jurisdiction). Potentially, every state regulatory statute had to pass muster as a valid exercise of health, welfare, morals, or police power. Most went untouched, but whenever a statute was found unconstitutional under substantive due process review a furor invariably ensued. In Allgeyer v. Louisiana (1897), the Court overturned a Louisiana law requiring all corporations doing business with Louisiana residents to pay fees to the state. In Lochner v. New York (1905), the Court found a maximum‐hours statute unconstitutional. In Adair v. U.S. (1908) the Court voided a federal law barring dismissals of interstate common carrier workers because they were members of unions. In Coppage v. Kansas (1915) the Court invalidated a state law barring yellow dog contracts. In Adkins v. Children's Hospital (1923) the Court struck down the minimum‐wage‐setting powers of a District of Columbia employment commission. The Court relied on substantive due process grounds to void price regulation in nonpublic industries and licensing of nonpublic enterprises, and the prevention of German‐language teachers and parochial school teachers from earning a living at their trade (see First Amendment).

The Reasonableness Standard

Throughout these cases, the Court asked itself whether the state economic regulations were reasonable—that is, did they fit the legitimate objectives of state intervention in the economy. The public/private enterprise distinction Chief Justice Morrison Waite employed in Munn was one attempt to elucidate a standard of reasonableness, as was the Court's weighing of evidence on the health of bakers in Lochner. The alternative—simple and uniform deference to the popularly elected representatives in state legislatures and Congress—was unpalatable to the majority in these substantive due process cases. The search for an appropriate and supple test of reasonableness—a rule of reason—in substantive due process cases nevertheless bedeviled the Court.

Meanwhile, progressive critics of substantive due process, notably James Thayer, Louis D. Brandeis, Roscoe Pound, and Theodore Roosevelt, accused the Court of setting itself up as a “super legislature” (see Progressivism). The same criticisms were voiced even more stridently by a new generation of reformers in support of New Deal programs. Recognizing that the line between public enterprises and private business and labor had become blurred in an administrative state and conceding that the legislatures had far greater ability to find and weigh facts than did the courts, Progressives on the Supreme Court, including Chief Justice Charles Evans Hughes and Justices Owen J. Roberts, Harlan Fiske Stone, and Benjamin N. Cardozo, began to lead the Court away from the freedom of contract version of substantive due process.

In Nebbia v. New York (1934), the Court, speaking through Roberts, found that a New York statute establishing a commission to fix milk prices was a reasonable health and welfare measure. The Court could only ask that state regulation not be unreasonable or arbitrary and that the regulation have a real relation to the object of the legislation. Free market forces had failed to accommodate themselves to the needs of the community. There was nothing sacred about commodity prices that would prevent their regulation in the public interest.

The Court tackled minimum wage laws, the second major object of the Court's scrutiny under the regime of substantive due process, in West Coast Hotel Co. v. Parrish (1937). A much‐divided Court, with the majority clinging to a strict version of substantive due process, validated a Washington State minimum wage law for women. Chief Justice Hughes wrote that the “Constitution does not speak of freedom of contract” (p. 391). Hughes signaled that Field's logic of free labor, which laissez‐faire advocates had gilded with their own ideal of free markets, no longer influenced the majority of the Court. He did not strike at the doctrine of substantive due process per se, but at the freedom of contract faith hidden within the older economic version of substantive due process. As Hughes wrote, “The liberty safeguarded [by the Due Process Clause] is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people” (p. 391). The state could protect the liberty of a class of workers who were in an unequal bargaining position and were relatively defenseless against inadequate wages. The state could insure liberty as well as curtail it, a conception quite opposite Field's and one more appropriate to the New Deal than the antebellum free‐labor ideology. After West Coast Hotel, economic due process review went into an eclipse from which it has not emerged.

If economic due process cases no longer absorbed a major portion of the Court's energies, substantive due process challenges to state and municipal regulations thrived in a new setting. Though recent Courts have generally observed a deferential policy toward state economic regulations, it has exempted from that approach state laws that discriminated against groups unable to gain the ear of the legislature, groups discriminated against by reason of race, gender, or other suspect categorization, and groups whose private lives were unduly invaded by the state (see Suspect Classification).

Challenges to Segregation

In particular, the deferential approach to state economic regulations was not extended to state restrictions on the right to vote in primary elections or state‐sponsored or state‐condoned segregation of education, public facilities, or employment (see Segregation, De Jure). These decisions remade private worlds as well as public places, ending widespread patterns of segregation. Critics of Brown v. Board of Education (1954) claimed that its sweeping language had no textual basis in the Constitution and, like economic due process, it merely rested upon the external, private social and philosophical beliefs of the justices. Given the great differences in the regional, political, and educational background of the justices on the Brown Court, their unanimity could not have arisen from a consensus of personal values, but the critics are right in one respect: Brown and its sister cases do reflect deeply felt aspirations that reach behind the text of the Constitution.

Privacy

Beginning in the 1960s, a new class of “social” substantive due process suits issues arrived on the Court's docket. These tracked our society's heightened concern for expressive individualism and the right to practice distinct family and personal lifestyles. The “new” social substantive due process rested on the recently articulated freedom of personal choice and privacy that the justices found in the “penumbras” of the Bill of Rights in Griswold v. Connecticut (1965), and imposed upon the states through the Due Process Clause of the Fourteenth Amendment. The right to exercise those choices in the private spaces of one's life sustained the legality of abortion in Roe v. Wade (1973) but did not protect homosexuals or adulterers from prosecution (see Homosexuality), permit policemen to violate departmental personal‐appearance regulations, deny states the right to collect and store information on drug prescriptions, or prevent state and local governments from releasing employees without explanation. In this group of cases the deferential policy of the Court proved that the freedom of contract doctrine is alive and well, for the government employer and the dismissed employee were hardly equal in bargaining power, particularly when the employee could not force the employer to divulge the reasons for the dismissal.

Despite the Court's retreat, under Chief Justice William H. Rehnquist, from earlier social due process decisions, substantive due process retains its protean ability to adapt constitutional law to changing social mores. In tandem with claims based on the Equal Protection Clause, due process challenges to state laws restricting individual choice will continue to make their way to the Supreme Court.

See also Capitalism; Fundamental Rights.

Bibliography

• Lawrence Friedman, The Republic of Choice, Law, Authority, and Culture (1990).
• Herbert Hovenkamp, The Political Economy of Substantive Due Process, Stanford Law Review 40 (1988): 379–447.
• William E. Nelson, The Fourteenth Amendment (1988).
• Michael J. Phillips, Another Look at Economic Substantive Due Process, Wisconsin Law Review (1987): 265–324

— Peter Charles Hoffer

The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties. By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard.

The Due Process Clause provides that no person shall be "deprived of life, liberty, or property without due process of law." When courts face questions concerning procedural due process, the controlling word in this clause is process. Courts must determine how much process is due in a particular hearing to satisfy the fairness requirements of the Constitution. When courts face questions concerning substantive due process, the controlling issue is liberty. Courts must determine the nature and the scope of the liberty protected by the Constitution before affording litigants a particular freedom.

Historical Development

The concept of due process traces its roots to early English law. In 1215 Magna Charta provided that no freeman should be imprisoned, disseised, outlawed, exiled, or destroyed, unless by the "law of the land." As early as 1354 the words "due process of law" were used to explain the protections set forth in Magna Charta. By the end of the fourteenth century, "law of the land" and "due process of law" were considered virtually synonymous in England. According to the seventeenth-century English jurist Sir Edward Coke, "due process of law" and "law of the land" possessed both substantive and procedural qualities. Substantively, Coke believed that the liberty to pursue a livelihood, the right to purchase goods, and the right to be free from anti-competitive practices were all protected by the "law of the land" and "due process of law." Procedurally, Coke associated these terms with indictment by grand jury and trial by petit jury.

When the Founding Fathers drafted the Fifth Amendment, it was unclear whether the Due Process Clause possessed any substantive qualities. Some prominent Americans, including Alexander Hamilton, understood the Due Process Clause to provide only procedural safeguards. Several states, however, followed the English practice of equating due process with the substantive protections offered by statutes and the common law. This divergent understanding of due process continues today. During the first sixty years after the ratification of the Constitution, the Due Process Clause was confined to a procedural meaning. Over the last 140 years, however, due process of law has taken on a pervasive substantive meaning.

The year 1856 marked the introduction of substantive due process into U.S. jurisprudence. In that year the U.S. Supreme Court faced a constitutional challenge to the Missouri Compromise of 1820, a federal law that abolished slavery in the territories. Under Missouri law, slaves who entered a free territory remained free for the rest of their lives. When a slave named Dred Scott returned to Missouri after visiting the free territory in what is now Minnesota, he sued for emancipation. Denying his claim, in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), the Supreme Court ruled that the Due Process Clause protects the liberty of certain persons to own African American slaves. Because the Missouri Compromise deprived slave owners of this liberty in the territories, the Supreme Court declared it invalid.

After Dred Scott the doctrine of substantive due process lay dormant for nearly half a century. In Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Supreme Court reinvigorated the doctrine by invalidating a state law that regulated the number of hours employees could work each week in the baking industry. Maximum hour laws, the Court ruled, interfere with the liberty of contract guaranteed by the Due Process Clause. The Court said that the liberty of contract allows individuals to determine the terms and conditions of their employment, including the number of hours they work during a given period.

Over the next thirty-two years, the Supreme Court relied on Lochner in striking down several laws that interfered with the liberty of contract. Most of these laws were enacted pursuant to the inherent police powers of state and federal governments. Police powers give lawmakers the authority to regulate health, safety, and welfare. For example, in Adkins v. Children's Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), the Supreme Court invalidated a minimum wage law that had been enacted by the federal government pursuant to its police powers. Minimum wage laws, the Court said, violate the liberty of contract guaranteed to workers by the Due Process Clause.

By 1936 the doctrine of substantive due process had grown increasingly unpopular. The Court had invoked the doctrine to strike down a series of federal laws enacted as part of President Franklin D. Roosevelt's New Deal, an economic stimulus program aimed at ameliorating the worst conditions of the Great Depression. On February 5, 1937, Roosevelt announced his court-packing plan, a proposal designed to enlarge the Supreme Court by enough justices to give the executive branch control over the federal judiciary. One month later the Supreme Court released its decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937).

In West Coast Hotel the Supreme Court upheld a Washington state minimum wage law over due process objections. Although the Court did not completely abandon the doctrine of substantive due process, it circumscribed its application. Because liberty of contract is not specifically mentioned in any provision of the federal Constitution, the Court said, this liberty must yield to competing government interests that are pursued through reasonable means. West Coast Hotel precipitated the onset of modern substantive due process analysis.

Modern Analysis

Since 1937 the Court has employed a two-tiered analysis of substantive due process claims. Under the first tier, legislation concerning economic affairs, employment relations, and other business matters is subject to minimal judicial scrutiny, meaning that a particular law will be overturned only if it serves no rational government purpose. Under the second tier, legislation concerning fundamental liberties is subject to heightened judicial scrutiny, meaning that a law will be invalidated unless it is narrowly tailored to serve a significant government purpose.

The Supreme Court has identified two distinct categories of fundamental liberties. The first category includes most of the liberties expressly enumerated in the Bill of Rights. Through a process known as "selective incorporation," the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to bar states from denying their residents the most important freedoms guaranteed in the first ten amendments to the federal Constitution. Only the Second Amendment right to bear arms, the Third Amendment right against involuntary quartering of soldiers, and the Fifth Amendment right to be indicted by a grand jury have not been made applicable to the states. Because these rights remain inapplicable to state governments, the Supreme Court is said to have "selectively incorporated" the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The second category of fundamental liberties includes those liberties that are not expressly enumerated in the Bill of Rights, but which are nonetheless deemed essential to the concepts of freedom and equality in a democratic society. These unenumerated liberties are derived from Supreme Court precedents, common law, moral philosophy, and deeply rooted traditions of U.S. legal history. The word liberty cannot be defined by a simple laundry list of rights, the Supreme Court has stressed. Instead, it must be viewed as a rational continuum of freedom through which every facet of human behavior is safeguarded from arbitrary impositions and purposeless restraints. In this light, the Supreme Court has observed, the Due Process Clause protects very abstract liberty interests, including the right to personal autonomy, bodily integrity, self-dignity, and self-determination.

These interests often are grouped to form a general right to privacy, which was first recognized in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), where the Supreme Court struck down a state statute forbidding married adults from using birth control on the ground that the law violated the sanctity of the marital relationship. In Griswold the Supreme Court held that the First, Fourth, Fifth, and Ninth Amendments create a penumbra of privacy, which serves to insulate certain behavior from governmental coercion or intrusion. According to the Court, this penumbra of privacy, though not expressly mentioned in the Bill of Rights, must be protected to establish a buffer zone of breathing space for those freedoms that are constitutionally enumerated.

Seven years later, in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), the Supreme Court struck down a Massachusetts statute that made illegal the distribution of contraceptives to unmarried persons. In striking down this law, the Supreme Court enunciated a broader view of privacy, stating that all persons, married or single, enjoy the liberty to make certain intimate decisions free from government restraint, including the decision whether to bear or beget a child. Eisenstadt foreshadowed the decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), where the Supreme Court ruled that the Due Process Clause guarantees women the right to have an abortion during the first trimester of pregnancy without state interference. Roe subsequently was interpreted to prevent state and federal governments from passing laws that unduly burden a woman's right to terminate her pregnancy (Webster v. Reproductive Health Services, 492 U.S. 490, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]).

The liberty interest protected by the Due Process Clause places other substantive limitations on legislation regulating intimate decisions. For example, the Supreme Court has recognized a due process right of parents to raise their children as they see fit, including the right to educate their children in private schools (Pierce v. Society of the Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 [1925]). Parents may not be compelled by the government to educate their children at public schools without violating principles of substantive due process. The Supreme Court also has ruled that members of extended families, such as grandparents and grandchildren, enjoy a due process right to live under the same roof, despite housing ordinances that limit occupation of particular dwellings to immediate relatives (Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 [1977]).

During the 1990s the Supreme Court was asked to recognize a general right to die under the doctrine of substantive due process. Although the Court stopped short of establishing such a far-reaching right, certain patients may exercise a constitutional liberty to hasten their deaths under a narrow set of circumstances. In Cruzan v. Missouri Department of Health, 497 U.S. 261, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990), the Supreme Court ruled that the Due Process Clause guarantees the right of competent adults to make advanced directives for the withdrawal of life-sustaining measures should they become incapacitated by a disability that leaves them in a persistent vegetative state. Once it has been established by clear and convincing evidence that a mentally incompetent and persistently vegetative patient made such a prior directive, a spouse, parent, or other appropriate guardian may seek to terminate any form of artificial hydration or nutrition.

The U.S. Court of Appeals for the Ninth Circuit cited Cruzan in support of its decision establishing the right of competent, but terminally ill, patients to hasten their deaths by refusing medical treatment when the final stages of life are tortured by pain and indignity (Compassion in Dying v. Washington, 79 F.3d 790 [1996]). In Washington v. Glucksberg, ___U.S. ___ , 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), however, the Supreme Court reversed this decision, holding that there is no due process right to assisted suicide.

The right to privacy does not protect all forms of behavior that are pursued behind closed doors. Adults have no constitutional right to engage in homosexual sodomy, view child pornography, or solicit prostitutes. The liberty interest recognized by the doctrine of substantive due process permits individuals to lead their lives free from unreasonable and arbitrary governmental impositions. Nevertheless, this liberty interest does not require the absence of all governmental restraint. Economic regulations will be upheld under the Due Process Clause so long as they serve a rational purpose, while noneconomic regulations normally will be sustained if they do not impinge on a fundamental liberty and otherwise are reasonable.

See: Death and Dying; Dred Scott v. Sandford; Griswold v. Connecticut; Incorporation Doctrine; Labor Law; Lochner v. New York; Rational Basis Test; Roe v. Wade; Unenumerated Rights.