Legal Definitions - substantive due process

Substantive due process is a legal principle derived from the Fifth and Fourteenth Amendments to the U.S. Constitution. These amendments state that the government cannot deprive any person of "life, liberty, or property, without due process of law." While "procedural due process" focuses on the fairness of the *methods* the government uses when taking away a right (like requiring a hearing), substantive due process examines the *content* or *substance* of the law itself.

It means that the government cannot pass laws that are fundamentally unfair or infringe upon certain essential liberties, even if those laws were passed through proper procedures. The courts have interpreted this to protect fundamental rights that are not explicitly listed in the Constitution but are considered deeply rooted in American history and tradition, and essential to a free society. These often include personal and relational rights, rather than purely economic ones.

Here are some examples to illustrate substantive due process:

• Example 1: Personal Autonomy and Health Decisions

  Imagine a state passes a law requiring all adults to undergo a specific, non-emergency medical procedure, regardless of their individual health status or personal beliefs, with no compelling public health crisis to justify such a broad mandate. Even if the state followed all proper legislative steps to pass this law, individuals could challenge it under substantive due process.

  How it illustrates the term: This law's *substance* could be seen as an unreasonable and arbitrary intrusion into a person's fundamental right to bodily autonomy and personal health decisions, which is considered a core aspect of "liberty" protected by the Constitution. The government's action would be deemed unconstitutional because it infringes on a fundamental right without adequate justification, not because the legislative process was flawed.

• Example 2: Parental Rights and Family Structure

  Consider a city ordinance that automatically removes children from the custody of parents who work night shifts, solely based on the time of day they work, without any individualized assessment of the parents' ability to provide care or the children's well-being. The ordinance assumes that night work inherently makes someone an unfit parent.

  How it illustrates the term: The right to raise one's children and maintain family integrity is a fundamental liberty interest. This ordinance, despite potentially aiming to protect children, would likely be challenged under substantive due process because its *substance* arbitrarily interferes with parental rights without a compelling reason or individualized determination, thus depriving parents of their "liberty" interest in family association and child-rearing in an unreasonable way.

• Example 3: Right to Travel and Establish Residency

  Suppose a county enacts a rule stating that only individuals who have resided in that county for at least ten consecutive years are eligible to purchase property or obtain a business license within its borders. Newcomers, even if they are U.S. citizens and otherwise qualified, would be barred from these activities.

  How it illustrates the term: The right to travel freely between states and establish residency, and to engage in common economic activities in one's chosen place of residence, is considered a fundamental aspect of "liberty." The *substance* of this county rule imposes an arbitrary and excessive restriction on this fundamental right, making it an unreasonable deprivation of liberty and property without a legitimate, compelling governmental objective.