Substantive Due Process

• Author: Jeffrey Lehman, Shirelle Phelps

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The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

In general, substantive due process prohibits the government from infringing on fundamental constitutional liberties. By contrast, procedural due process refers to the procedural limitations placed on the manner in which a law is administered, applied, or enforced. Thus, procedural due process prohibits the government from arbitrarily depriving individuals of legally protected interests without first giving them notice and the opportunity to be heard.

The Due Process Clause provides that no person shall be "deprived of life, liberty, or property without due process of law." When courts face questions concerning procedural due process, the controlling word in this clause is process. Courts must determine how much process is due in a particular hearing to satisfy the fairness requirements of the Constitution. When courts face questions concerning substantive due process, the controlling issue is liberty. Courts must determine the nature and the scope of the liberty protected by the Constitution before affording litigants a particular freedom.

Historical Development

The concept of DUE PROCESS has its roots in early ENGLISH LAW. In 1215 MAGNA CHARTA provided that no freeman should be imprisoned, disseised, outlawed, exiled, or destroyed, unless by the "law of the land." As early as 1354 the words "due process of law" were used to explain the protections set forth in Magna Charta. By the end of the fourteenth century, "law of the land" and "due process of law" were considered virtually synonymous in England. According to the seventeenth-century English jurist SIR EDWARD COKE, "due process of law"

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and "law of the land" possessed both substantive and procedural qualities. Substantively, Coke believed that the liberty to pursue a livelihood, the right to purchase goods, and the right to be free from anti-competitive practices were all protected by the "law of the land" and "due process of law." Procedurally, Coke associated these terms with indictment by GRAND JURY and trial by petit jury.

When the Founding Fathers drafted the FIFTH AMENDMENT, it was unclear whether the Due Process Clause possessed any substantive qualities. Some prominent Americans, including ALEXANDER HAMILTON, understood the Due Process Clause to provide only procedural safeguards. Several states, however, followed the English practice of equating due process with the substantive protections offered by statutes and the COMMON LAW. This divergent understanding of due process continues today. During the first 60 years after the ratification of the Constitution, the Due Process Clause was confined to a procedural meaning. Over the next 140 years, however, due process of law took on a pervasive substantive meaning.

The year 1856 marked the introduction of substantive due process in U.S. JURISPRUDENCE. In that year the U.S. Supreme Court faced a constitutional challenge to the MISSOURI COMPROMISE OF 1820, a federal law that abolished SLAVERY in the territories. Under Missouri law, slaves who entered a free territory remained free for the rest of their lives. When a slave named Dred Scott returned to Missouri after visiting the free territory in what is now Minnesota, he sued for emancipation. Denying his claim, in DRED SCOTT V. SANDFORD, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856), the Supreme Court ruled that the Due Process Clause protects the liberty of certain persons to own African American slaves. Because the Missouri Compromise deprived slave owners of this liberty in the territories, the Supreme Court declared it invalid.

After Dred Scott the doctrine of substantive due process lay dormant for nearly half a century. In LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the Supreme Court reinvigorated the doctrine by invalidating a state law that regulated the number of hours employees could work each week in the baking industry. Maximum hour laws, the Court ruled, interfere with the liberty of contract guaranteed by the Due Process Clause. The Court said that the liberty of contract allows individuals to determine the terms and conditions of their employment, including the number of hours they work during a given period.

Over the next 32 years, the Supreme Court relied on Lochner in striking down several laws that interfered with the liberty of contract. Most of these laws were enacted pursuant to the inherent POLICE POWERS of state and federal governments. Police powers give lawmakers the authority to regulate health, safety, and welfare. For example, in Adkins v. Children's Hospital, 261...