Substantive Due Process (Update 1)

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In the period preceding the new deal, due process of law meant more than a guaranty of procedural regularity; it also embodied a substantive dimension that curtailed the role of the state in altering the outcomes of private marketplace decisions. This was the era of lochner v. new york (1905), in which the Supreme Court decreed that government could intervene only to aid parties deemed in special need of paternalistic measures, such as minors and women, or to address externalities (where private bargains impose uncompensated costs on third parties). During a time of considerable social unrest, Lochnerian jurisprudence imposed sharp limits on the domain of ordinary politics while, in many quarters, also placing in question the very legitimacy of judicial review.

With the onset of the Great Depression, the growing political demands on government to curb instability in markets, to reduce widespread unemployment, and to bolster consumer demand forced the Court to alter its conception of the role of the state. Thus, in nebbia v. new york (1934) and west coast hotel co. v. parrish (1937), the Court rejected Lochner 's narrow definition of permissible governmental goals. Legislative efforts to redistribute wealth through social programs or enhance the bargaining positions of weaker parties were now legitimate exercises of power. With the permissible ends of government thus broadened, the Court soon indicated in united states v. carolene products co. (1938) that Lochner 's rigorous insistence on a close fit of "ends" and "means" in economic regulation had to yield to a policy of judicial deference to reasonably debatable economic measures. The hands-off approach to economic regulations with a rational basis also extended to decisions narrowly construing the reach of the contract clause and the takings clause.

This policy of judicial deference would not necessarily extend beyond the economic sphere, however. Justice harlan fiske stone, in his famous footnote four to Carolene Products, explained that regulations interfering with fundamental personal liberties and burdening disadvantaged minority groups would be subjected to a more demanding level of scrutiny. This dual standard for review allowed the Court in a number of decisions that culminated in roe v. wade (1973) to apply strict scrutiny to government action interfering with private decisions within a "zone of privacy" that included the intimate realms of marriage, reproduction, and child rearing.

In the years since 1985, without rejecting this dual framework, the Court has confined the privacy interests protected by substantive due process to those that reflect deeply entrenched, widely held traditional values. In Michael H. v. Gerald D. (1989) the state's traditional interest in the "unitary family" prevailed over a natural father's paternity claim where the child was born into an extant marital family. Most prominently, in bowers v. hardwick (1986) the Court held that Georgia could criminalize the act of homosexual sodomy between consenting adults committed in the privacy of the home. Justice byron r. white's opinion for the majority explained that the right to engage in such conduct had no textual support in the constitutional language. Moreover, he said, the claimed right could not be deemed fundamental, given the longstanding proscription of such conduct in state law and the Court's policy of "great resistance to expand[ing] the substantive reach of [the due process clauses of the Fifth Amendment and fourteenth amendment ], particularly if it requires redefining the category of rights deemed to be fundamental."

As critical commentators like Ronald Dworkin have shown, the Court's position in Bowers that prohibition of private sexual conduct may be based solely on the moral preferences of majorities is difficult to reconcile with the principle of cases like Roe v. Wade (1973). Indeed, in webster v. reproductive health services (1989), the plurality opinion of Chief Justice william h. rehnquist openly stated that the Court was prepared "to revisit the holding of Roe " in an appropriate case. In the meantime, he suggested, the Court would sustain state laws barring the use of public facilities for the performance of abortions and requiring nonmedically indicated tests for the purpose of determining fetal viability. Proponents and opponents of abortion alike have viewed Webster as a remand of the abortion controversy to the political arena.

In De Shaney v. Winnebago County Department of Social Services (1989), the Court held that states were not constitutionally accountable for failure to intervene effectively to curb family domestic violence. "In the substantive due process analysis," Chief Justice Rehnquist wrote, "it is the State's affirmative act of restraining the individual's freedom to act on his own behalf … which is the "deprivation of liberty' triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means."

Along with this partial constriction of the "zone of privacy," there have been some stirrings toward greater judicial protection of economic liberties. The Court's commercial speech decisions have extended first amendment protections to individual professionals facing regulatory restrictions arguably put in place by professional associations to protect established interests from new forms of competition. The Court also has indicated a willingness to depart from traditional deferential review of land use regulation. In Nollan v. California Coastal Commission (1987), the Court used the doctrine of unconstitutional conditions to find a regulatory taking of property under the Fifth Amendment. At issue was a zoning board's decision to permit construction of a larger house on a beachfront lot on condition that the owners allow the public an easement to pass across their beach. Some writers have argued that the unconstitutional conditions doctrine should be widely deployed to accomplish a resurrection of economic due process protections.

As a general matter, the post-New Deal resistance to substantive due process now appears to be on the wane in the academy. Critics from both the Left and the Right have advocated theories of aggressive constitutionalism at variance with the judicial deference to economic regulations typified by Carolene Products. Richard Epstein, among others, has argued that the retreat from Lochner after the Great Depression was an unprincipled abandonment of economic liberties thought fundamental by the Constitution's Framers; in his view, the Court properly may confine government intervention to true instances of market failure, such as externalities. Such writers as Frank Michelman and Cass Sustein reject Lochner 's facile reliance on laissez-faire economic principles, but they nevertheless agree that the Court properly may, in the service of reconstructed "republican" values, proscribe the use of governmental power simply to further the self-interest of established economic groups.

These academic commentaries derive support in part from judicial activism on behalf of racial equality and voting rights. Social acceptance of the Supreme Court's active role in the latter areas has diluted the concerns over "government by juiciary" that led Harlan Fiske Stone, felix frankfurter, and others to seek to limit judicial interference with political outcomes. It remains to be seen, however, whether these new versions of substantive due process can be implemented free of a crisis of legitimacy similar to the one that marked the Court's handiwork during the Lochner era.

Samuel Estreicher

(see also: Economic Equal Protection; Economy; Reproductive Autonomy.)


Epstein, Richard A. 1985 Takings: Private Property and the Power of Eminent Domain. Cambridge, Mass.: Harvard University Press.

Estreicher, Samuel 1981 Platonic Guardians of Democracy: John Hart Ely's Role for the Supreme Court in the Constitution's Open Texture. New York University Law Review 56: 547–582.

Michelman, Frank 1986 The Supreme Court Term—Foreword: Traces of Self-Government. Harvard Law Review 100: 4–77.

Posner, Richard A. 1987 The Constitution as an Economic Document. George Washington Law Review 59:4–38.

Sunstein, Cass 1987 Lochner 's Legacy. Columbia Law Review 87:873–919.