Due process, substantive

The doctrine that the liberty protected by the due process clauses of the Fifth and Fourteenth Amendments encompasses more than the procedural rights owed by the government when it seeks to punish someone for a crime.

One of the intents of the framers of the Fourteenth Amendment was to protect the property and contract rights of newly freed slaves from state law. The amendment states that the state shall not take away any person’s life, liberty, or property without “due process of law.” The phrase “due process” usually meant proper legal procedure, especially in criminal law.Due process, procedural However, in Allgeyer v. Louisiana[case]Allgeyer v. Louisiana[Allgeyer v. Louisiana] (1897), the Supreme Court, most of whose members believed strongly in laissez-faire capitalism, decided that part of the “fundamental liberty” protected by the due process clause was a substantive right to make contractsContract, freedom of. This new right was frequently used by the Court to strike down state economic regulations with which the justices disagreed. For example, in Lochner v. New York[case]Lochner v. New York[Lochner v. New York] (1905), the Court declared unconstitutional a New York law restricting the number of hours per day that bakers could work because it interfered with the right of the bakers to contract with their employers for their services. Justice Oliver Wendell Holmes filed a powerful dissenting opinion in the case. The Court also found a few other fundamental rights applicable to the states. In Gitlow v. New York[case]Gitlow v. New York[Gitlow v. New York] (1925), for example, it held that freedom of speech, a First Amendment right, limited state governments. However, Holmes’s reasoning in the Lochner dissent eventually prevailed. In 1936 the Court upheld a Washington state minimum-wage law in Morehead v. New York ex rel. Tipaldo. Soon after Morehead, several older, more conservative justices retired from the court. President Franklin D. Roosevelt appointed progressive justices, and a new era of judicial selfrestraint began. To many observers, it appeared unlikely that substantive due process guarantees would surface again.

Substantive Due Process Reborn

The Court’s interest in substantive liberty was rekindled in the 1960’s. On November 1, 1961, the Planned Parenthood League of Connecticut opened a center in New Haven. On November 10, its executive director, Estelle Griswold, and its medical director, Dr. Harold Buxton, were arrested for violating the Connecticut birth control statute. This law, which had been on the state’s books since 1879, prohibited the use of birth control devices and the provision of birth control information. Griswold and Buxton were the first people ever to have been charged under the statute. An earlier attempt to challenge the law had been defeated when the Court refused to take jurisdiction because no one had ever been prosecuted. Griswold and Buxton were convicted and appealed to the Court.

Anthony Comstock.

(Library of Congress)

The Court’s opinion in Griswold v. Connecticut[case]Griswold v. Connecticut[Griswold v. Connecticut], written by Associate Justice William O. Douglas for a 7-2 majority, struck down the Connecticut statute. Douglas reasoned that many constitutional provisions as well as many of the Court’s cases had established a zone of privacyPrivacy, right of into which states are forbidden to intrude. The First Amendment, which protects speech and religion, also protects privacy in associations; the Third Amendment prevents the government from forcing the populace to house soldiers; and the Fourth Amendment limits “unreasonable” warrantless intrusions into the home. The Fifth Amendment includes some substantive liberties. Finally, the Ninth AmendmentNinth Amendment establishes that there may be constitutional rights that are not explicitly set forth in the Constitution. Taken together, Douglas argued, these provisions establish a constitutional marital privacy right that the Connecticut birth control statute infringed.

The two dissenters in the case, Associate Justices Hugo L. Black and Potter Stewart, argued that the decision would return the Court to the discredited era of substantive due process in which the justices had written their policy preferences into the Constitution. Black and Stewart pointed out that there was no explicit textual support in the Constitution for the new right of marital privacy. They were particularly perturbed by the majority’s use of the Ninth Amendment, which seemed completely open ended to them and would give the Court limitless authority to define rights beyond the text of the Constitution.

The same right to receive and use contraceptive devices was extended to unmarried persons in Eisenstadt v. Baird[case]Eisenstadt v. Baird[Eisenstadt v. Baird] (1972). In this case a Massachusetts statute was declared unconstitutional by the Court on two grounds: It unconstitutionally discriminated against unmarried people, and it collided with “a fundamental human right” to control conception.


The following year, conception and privacy rights were further extended by the Court in Roe v. Wade[case]Roe v. Wade[Roe v. Wade] (1973). This famous case established that a pregnant woman has a constitutional right to an abortion on demand during the first trimester of pregnancy. Justice Harry A. Blackmun, writing for the seven-justice majority, argued that the Court’s substantive due process cases had established a right of privacy that “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” and that outweighs the state’s interest in protecting prenatal life, at least during the first trimester of pregnancy. Blackmun turned to historical medical and legal thinking about pregnancy and abortion to help define the extent of abortion rights. Some state regulation of abortions is permitted in the second trimester, and abortion may be prohibited altogether in the third.

The two dissenters, Justices William H. Rehnquist and Byron R. White, maintained that there is no “fundamental” right to an abortion on demand and referred to the historical tradition in England and the United States of prohibiting abortion. They argued that the Court should defer to the wishes of the majority, at least in the absence of a traditional fundamental right. Roe v. Wade is perhaps the boldest assertion of substantive due process rights by the Court. It has been immensely controversial and has resulted in a great deal of political action in opposition to the Court’s decision and in occasional violence directed at abortion clinics, physicians, and patients. In the years since Roe, the Court has revisited the case often. Although the decree has been modified somewhat, the central holding that a pregnant woman has a right to an abortion on demand in the first trimester remains intact.

Limit on New Rights

At the end of the twentieth century, Roe v. Wade represented the high-water mark of the Court’s protection of substantive liberties. The Court declined to extend the concept to protect homosexual sodomy in Bowers v. Hardwick[case]Bowers v. Hardwick[Bowers v. Hardwick] (1986). A Georgia statute that prohibited anal or oral sex was challenged by Michael Hardwick, a gay man who had been threatened with prosecution under the law after he was found in bed with another man in the course of a police drug raid. In his opinion for the majority, Justice Byron R. White wrote that

Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868 when the Fourteenth Amendment …was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. …Against this background, to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.

White also pointed out that Griswold, Eisenstadt, and Roe had all spoken to the right to decide whether or not to bear children. This crucial element is absent in Bowers. Four justices Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, and John Paul Stevens argued that the case was really about a “fundamental right to be let alone,” and that the Court’s earlier privacy decisions established just that. Although Bowers is a 5-4 decision, the issue did not appear again before the Court. The Georgia supreme court struck down the statute in question on independent state constitutional grounds in 1999.

The Court resisted attempts to get it to establish substantive rights to die or to assisted suicide. In Cruzan v. Director, Missouri Department of Health[case]Cruzan v. Director, Missouri Department of Health[Cruzan v. Director, Missouri Department of Health] (1990), the Court refused to order the removal of life-support equipment from Nancy Cruzan, a young woman in a “persistent vegetative state” as a result of injuries suffered in an automobile accident. The majority, perhaps unwilling to further politicize the Court’s work in the wake of the controversy surrounding Roe v. Wade, made it clear that it preferred to allow state governments to resolve these newly arising life and death questions. Similarly, in 1997 the court refused to hear a claim that an Oregon assisted-suicide law is unconstitutional.

The “new” substantive due process has allowed the Supreme Court to define new individual constitutional rights. So far these have been limited to substantive rights already found in the First Amendment and additional reproductive privacy rights. The doctrine is very controversial because every time the Court limits state power, it is acting in an antimajoritarian way. It is not clear to the public why the right to an abortion is somehow “fundamental” while the “bedroom privacy” argued for in the Georgia sodomy case is not. Nothing appears to illuminate these decisions besides the wishes of the justices. The Constitution itself neither explicitly establishes these rights nor implies them with any clarity. The absence of textual support for these decisions puts perception of the Court’s legitimacy at risk.

Further Reading

  • John V. Orth’s Due Process of Law: A Brief History (Lawrence: University Press of Kansas, 2003) traces the concept of due process back from its early roots in English history through modern U.S. Supreme Court decisions. The property law and contract clause background of substantive due process is well discussed in The Guardian of Every Other Right: A Constitutional History of Property Rights by James Ely, Jr. (New York: Oxford University Press, 1992) and Polly J. Price’s Property Rights: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2003). Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy by Jennifer Nedelsky (Chicago: University of Chicago Press, 1990) provides less technical coverage of some of the same topics. There is a vast literature on the “true” meaning of the Fourteenth Amendment and whether it does or does not “incorporate” the Bill of Rights. The classic argument for the incorporationist position is The Supreme Court in United States History by Charles Warren (Boston: Little, Brown, 1937), while the opposition is best represented by Charles Fairman’s The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory (New York: Da Capo Press, 1970). A more recent work suggesting curtailing the judiciary’s role is The Fourteenth Amendment and the Bill of Rights by Raoul Berger (Norman: University of Oklahoma Press, 1989). An argument supporting the Court’s activities may be found in Freedom and the Court: Civil Rights and Liberties in the United States by Henry J. Abraham and Barbara A. Perry (8th ed., New York: Oxford University Press, 2003). Similarly the legitimacy of the privacy decisions and the natural law threads of thought that produced them have engendered enormous comment. One balanced work is The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties by Richard C. Cortner (Madison: University of Wisconsin Press, 1981).


Birth control and contraception

Bowers v. Hardwick

Contract, freedom of

Cruzan v. Director, Missouri Department of Health

Due process, procedural

Eisenstadt v. Baird

Fourteenth Amendment

Griswold v. Connecticut

Incorporation doctrine

Judicial activism

Judicial self-restraint

Privacy, right to

Roe v. Wade