Substantive due process demarcates the line between acts that courts deem subject to government regulation or legislation and those they consider beyond the reach of governmental interference.
[1] In his concurrence in the 2022 landmark decision Dobbs v. Jackson Women's Health Organization, Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
[5] Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects.
[8] The courts have largely abandoned the Lochner era approach (c. 1897–1937), when substantive due process was used to strike down minimum wage and labor laws to protect freedom of contract.
Opponents also argued that the "police power" of government allowed legislatures to regulate the holding of property in the public interest, subject only to specific prohibitions of the written constitution.
The idea was a way to import natural law norms into the Constitution; prior to the American Civil War, the state courts were the site of the struggle.
Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v.
[citation needed] The "vested rights" jurists saw the "law of the land" and "due process" clauses of state constitutions as restrictions on the substantive content of legislation.
[18] Because many of the first applications protected the rights of corporations and employers to be free of governmental regulation, some scholars believe that substantive due process developed as a consequence of the Court's desire to accommodate 19th-century railroads and trusts.
[20] The Supreme Court also recognized a substantive due process right "to control the education of one's children", thus voiding state laws mandating for all students to attend public school.
In Pierce v. Society of Sisters, the Supreme Court said in 1925: We think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.
Justice Anthony Kennedy speculated in the 2000 case of Troxel v. Granville[9] that current Supreme Court doctrine prohibits the judiciary from using the Due Process Clause instead of an applicable specific constitutional provision if one is available.
[22] The right to marry a person of a different race was addressed in Loving v. Virginia,[23] in which the Court said, in 1967, that its decision striking down anti-miscegenation laws could be justified either by substantive due process, or by the Equal Protection Clause.
The unconstitutionality of bans on and refusals to recognize same-sex marriage was decided partly on substantive due process grounds by Obergefell v. Hodges in 2015.
[26] The Court, in O'Connor v. Donaldson,[27] in 1975, said that due process is violated by confining a nondangerous mentally ill person who is capable of surviving safely in freedom.
Chief Justice Burger's concurring opinion was that such confinement may also amount to "punishment" for being mentally ill, violating the Court's interpretation of the Eighth Amendment in Robinson v. California.
Justice Oliver Wendell Holmes Jr., a proponent of legal realism, worried that the Court was overstepping its boundaries and wrote, in 1930, in one of his last dissents:[31] I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States.
Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.Originalists, such as Supreme Court Justices Clarence Thomas, who rejects the substantive due process doctrine, and Antonin Scalia, who also questioned the legitimacy of the doctrine, have called substantive due process a "judicial usurpation"[32] or an "oxymoron".
Originalism is usually linked to opposition against substantive due process rights, and the reasons can be found in the following explanation that was endorsed unanimously by the Supreme Court in the 1985 case University of Michigan v. Ewing: "we must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.
Until then, it was "scarcely questioned" (as Abraham Lincoln put it) that the Constitution "was intended by those who made it, for the reclaiming of what we call fugitive slaves; and the intention of the law-giver is the law".
[37] When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts now use two forms of scrutiny or judicial review.