Substantive Due Process (Update 2)

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The Supreme Court has long construed the Constitution's due process clauses to have both procedural and substantive components. procedural due process guarantees against deprivation of life, liberty, or property without notice and an adequate hearing. Substantive due process, on the other hand, establishes substantive limits on the government's power to interfere with individual liberty. That is, even when no constitutional provision explicitly prohibits a particular governmental action, courts employing the doctrine of substantive due process may invalidate that action as an undue infringement of individual liberty. The text of the Constitution provides little, if any, guidance in fleshing out the contours of substantive due process.

While substantive due process has nineteenth-century antecedents, the Court first regularly applied it early in the twentieth century. During the so-called Lochner era—named for lochner v. new york (1905)—the Court invalidated maximum hour laws, minimum wage laws, union protective laws, and other economic legislation on the ground of undue interference with freedom of contract—a right that the Court protected under the rubric of substantive due process. In the 1930s, however, the Court repudiated these decisions and seemed to indicate the demise of substantive due process.

Over the next thirty years, the Court, reflecting widespread revulsion against what were perceived to have been Lochner -era abuses of judicial power, generally refrained from invoking substantive due process. Occasionally during this period, Justices would invoke the lessons of the Lochner era as justification for refusing to strike down a particular law on substantive due process grounds, but then proceed to invalidate it under a different constitutional provision. For example, in skinner v. oklahoma (1942) the Court invalidated an Oklahoma statute authorizing sterilization of three-time recidivist criminals on the ground that the guarantee of equal protection of the laws afforded a fundamental right to procreation. Later, the Court also found shelter under the equal protection clause for the right to travel, the right not to be excluded because of indigency from appealing a criminal conviction, and voting rights. Some commentators have questioned the practical significance of deriving rights not explicitly enumerated in the Constitution from one clause rather than another. Nevertheless, much of the warren court activism of the 1960s assiduously avoided the due process clause, while significantly expanding protections under other open-ended constitutional provisions.

Most observers identify griswold v. connecticut (1965) as the font of modern substantive due process doctrine. Employing the same due process clause that during the Lochner period had been invoked to protect various economic liberties, the Court now began invalidating laws interfering with various aspects of personal privacy and autonomy, most notably sexual freedom. In Griswold the Court struck down a criminal ban on the use of contraceptives, as applied to married couples. In roe v. wade (1973) the Court invalidated legislation restricting access to abortion. In moore v. city of east cleveland (1977) the Court nullified a local ordinance constraining the ability of blood relatives to live in the same household. The Court drew the line, however, in bowers v. hardwick (1986), narrowly rejecting the claimed right of adults to engage in private, consensual sexual activity with members of the same sex.

Modern substantive due process has been intensely controversial, both within the Court and among commentators. Critics of the doctrine accuse the Court of simply duplicating the abuses of the Lochner era, inventing rights without firm foundation in the Constitution. Such a practice is said to be antidemocratic, because it involves unelected, lifetime-tenured judges invalidating laws enacted by popularly elected legislatures on the basis of subjective value judgments not tethered to the constitutional text. Defenders of modern substantive due process respond in various ways. Some argue that the correct lesson to draw from the Lochner experience is not that the Court should refrain from identifying unenumerated constitutional rights, but simply that economic rights do not warrant such protection. These rights are said to be less important, or at least less appropriate for judicial protection, than the personal autonomy rights articulated under modern substantive due process. Other defenders contend that the judicial identification of unenumerated rights is plainly authorized by open-ended constitutional provisions such as the ninth amendment or the privileges and immunities clause of the fourteenth amendment. It is said that the meaning of such provisions is difficult to discern if they were not intended to authorize judicial formulation of unenumerated rights. Finally, some proponents of modern substantive due process concede the antidemocratic implications of unenumerated rights adjudication but embrace those implications as a virtue rather than repudiate them as a vice. For these commentators, the legitimacy of the political regime depends on its affording protection to fundamental human liberties, whether or not they are inscribed in the constitutional text or endorsed by the more majoritarian political branches.

The Court's right-to-die decisions of the 1990s illustrate both the Justices' unwillingness to repudiate substantive due process and their discomfort with the doctrine's antidemocratic implications. The Court's decisions in Cruzan v. Director, Missouri Department of Health (1990) and Washington v. Glucksberg (1997) share a common form. In both cases, a majority of the Court rejected the particular right-to-die claim at issue, while a different majority of five Justices stated or strongly implied that substantive due process guarantees some measure of individual control over the circumstances of one's death. In Cruzan the Court ruled that the Constitution permitted the state of Missouri to maintain a vegetative patient on extraordinary life support, contrary to the wishes of her parents and a court-appointed guardian, in the absence of clear and convincing evidence of her own preferences expressed when competent. Yet five Justices plainly stated that the Constitution requires compliance with the terms of a "living will" executed by a competent adult. Similarly, in Glucksberg, while the Court unanimously rejected the argument that terminally ill patients possess a constitutional right to commit suicide with physician assistance, a majority of five Justices intimated that the Constitution would not permit a state to forbid physicians from prescribing drugs for terminally ill patients suffering great pain, even if those drugs were likely to induce death.

Glucksberg sheds light on the status of substantive due process in the late 1990s. The open-ended discretion to right perceived wrongs afforded by such a doctrine is too attractive for the Justices entirely to repudiate it. At the same time, however, the lesson that the Court seems to have derived from a quarter-century's worth of criticism in the face of Roe v. Wade is that it must be more cautious in applying the doctrine. Roe effectively nullified the abortion statutes of forty-six states. In Glucksberg, the Court was unwilling to invalidate the laws of the forty-nine states that, as of 1997, continued to criminalize physician-assisted suicide. How substantive due process doctrine evolves in the future with regard to the right to die will depend, as constitutional interpretation generally does, on changes in social mores.

Michael J. Klarman


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Ely, John Hart 1973 The Wages of Crying Wolf: A Comment on Roe v. Wade. Yale Law Journal 82:920–949.

Gillman, Howard 1993 The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham, N.C.: Duke University Press.

Grey, Thomas 1978 Origins of the Unwritten Constitution. Stanford Law Review 30:843–893.

Perry, Michael 1976 Abortion, the Public Morals and the Police Power: The Ethical Function of Substantive Due Process. UCLA Law Review 23:689–736.

Sherry, Suzanna 1987 The Founders' Unwritten Constitution. University of Chicago Law Review 54:1127–1177.

Sunstein, Cass R. 1997 The Right to Die. Yale Law Journal 106:1123–1163.