Individual rights - Substantive due process

Learning Outcomes

This article clarifies the concept of Substantive Due Process under the Fifth and Fourteenth Amendments. It distinguishes between fundamental and non-fundamental rights and explains the corresponding standards of judicial review—strict scrutiny and rational basis. After reading this article, you will understand how courts analyze government regulations that impinge upon individual liberties, focusing particularly on fundamental rights related to privacy and personal autonomy, enabling you to apply these concepts in MBE scenarios.

MBE Syllabus

For the MBE, understanding Substantive Due Process involves knowing how the Constitution limits the substance of laws and governmental actions that affect life, liberty, or property. You should focus on:

• Identifying the sources of Substantive Due Process (Fifth and Fourteenth Amendments).
• Distinguishing Substantive Due Process from Procedural Due Process and Equal Protection.
• Recognizing fundamental rights (e.g., privacy, travel, voting) versus non-fundamental rights.
• Applying the strict scrutiny standard to laws infringing fundamental rights.
• Applying the rational basis test to laws affecting non-fundamental rights.
• Understanding the specific standards for abortion regulations (undue burden test).
• Analyzing economic regulations under the rational basis test.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which constitutional standard is typically applied when a state law significantly burdens a fundamental right protected by Substantive Due Process?
   1. Rational basis test
   2. Intermediate scrutiny
   3. Strict scrutiny
   4. Undue burden test
2. A state enacts a law prohibiting the sale of widgets on Tuesdays for purely economic reasons, aiming to boost Wednesday sales. A widget seller challenges the law under the Fourteenth Amendment's Due Process Clause. Which standard of review will the court most likely apply?
   1. Strict scrutiny, because the law interferes with the right to contract.
   2. Rational basis, because economic regulation generally involves non-fundamental rights.
   3. Intermediate scrutiny, because the law affects commercial activity.
   4. Undue burden test, because the law impacts the seller's business operations.
3. Which of the following rights is LEAST likely to be considered a fundamental right triggering strict scrutiny under Substantive Due Process?
   1. The right to marry
   2. The right to engage in interstate travel
   3. The right to government-funded healthcare
   4. The right to use contraception

Introduction

While Procedural Due Process ensures fair procedures when the government deprives someone of life, liberty, or property, Substantive Due Process (SDP) limits the substance of laws and governmental regulations. It asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. Essentially, SDP ensures that certain fundamental rights are protected from unreasonable government interference, regardless of the procedures used.

Key Term: Substantive Due Process A constitutional principle preventing the government from enacting laws that are arbitrary, irrational, or that infringe upon fundamental rights, regardless of the fairness of the procedures used.

The guarantee of Substantive Due Process stems from the Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to state and local governments). The analysis hinges critically on the nature of the right being affected by the governmental action.

Standards of Review

The level of justification the government must show depends entirely on whether the law affects a "fundamental" right or a "non-fundamental" right.

Fundamental Rights: Strict Scrutiny

If a law limits a fundamental right, it will be upheld only if the government can prove that the law is necessary to achieve a compelling governmental purpose. This is known as strict scrutiny.

Key Term: Fundamental Rights Rights deemed deeply rooted in the nation's history and tradition or implicit in the concept of ordered liberty. Examples include rights related to privacy (marriage, procreation, contraception, family relations, abortion), interstate travel, and voting.

Key Term: Strict Scrutiny The most rigorous standard of judicial review. The government must prove the challenged law is necessary (narrowly tailored/least restrictive means) to achieve a compelling government interest.

Under strict scrutiny, the government bears the burden of proof. The law must be the least restrictive means to achieve the objective; if there are less burdensome ways to achieve the government's goal, the law will fail. This standard is extremely difficult for the government to meet, and laws subjected to it are rarely upheld.

Non-Fundamental Rights: Rational Basis Test

If a law does not affect a fundamental right (e.g., most economic regulations, business regulations, taxation, social welfare laws), the law is reviewed under the rational basis test.

Key Term: Rational Basis Test The lowest standard of judicial review. The challenger must prove the law is not rationally related to any legitimate government interest. The government action is usually upheld under this standard.

Under the rational basis test, the law will be upheld unless the challenger can prove that the law is not rationally related to any legitimate government interest. The government's objective need only be legitimate (not compelling), and the means chosen need only be a rational way to accomplish the objective (not necessary or narrowly tailored). This standard is highly deferential to the government, and laws reviewed under it are almost always upheld. Economic regulations (e.g., setting minimum wages, regulating prices, controlling land use through zoning) are classic examples of areas governed by the rational basis test under SDP.

Worked Example 1.1

State Green enacts a law requiring all persons operating a motor vehicle to wear a seatbelt. Driver challenges the law, claiming it infringes upon his liberty interest to decide what safety measures to take for himself, violating Substantive Due Process. What standard of review applies?

Answer: Rational basis. The right to not wear a seatbelt is not considered a fundamental right. The law is an exercise of the state's police power aimed at promoting public safety, which is a legitimate government interest. Requiring seatbelts is rationally related to that interest. The law will almost certainly be upheld.

Identifying Fundamental Rights

Determining whether a right is fundamental is essential for SDP analysis. The Supreme Court has recognized several fundamental rights, primarily related to personal autonomy and privacy.

Privacy-Related Rights

• Marriage: The right to marry is fundamental. Laws prohibiting certain types of marriage (e.g., same-sex marriage) are subject to heightened scrutiny (effectively strict scrutiny, though the Court did not explicitly state the standard in Obergefell). Reasonable regulations (e.g., age limits, waiting periods) are usually upheld.
• Procreation: The right to procreate is fundamental. Laws imposing mandatory sterilization, for instance, face strict scrutiny.
• Contraception: The right to purchase and use contraceptives is fundamental for both married and unmarried individuals.
• Family Relations: Rights concerning family relationships, such as the right of related family members to live together, are fundamental. This includes parents' rights to control the upbringing and education of their children.
• Abortion: The right of a woman to terminate her pregnancy is fundamental, but it is subject to a unique standard established in Planned Parenthood v. Casey.

The Undue Burden Test for Abortion

Before fetal viability, a state may regulate abortion but may not impose an undue burden on the woman's right to choose. An undue burden exists if the purpose or effect of the regulation is to place a substantial obstacle in the path of a woman seeking an abortion.

Key Term: Undue Burden Test The standard used to review regulations affecting the right to abortion prior to viability. A law imposes an undue burden if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.

After viability, the state may prohibit abortion entirely, except where necessary to protect the woman's life or health. Regulations such as informed consent requirements, 24-hour waiting periods, and parental consent/notice laws for minors (with a judicial bypass option) have generally been upheld as not constituting undue burdens. Spousal notification requirements, however, have been struck down.

Other Fundamental Rights

• Right to Interstate Travel: Includes the right to enter and leave a state and the right to be treated equally after becoming a permanent resident of a state. Durational residency requirements for receiving essential government benefits (like welfare or medical care) are subject to strict scrutiny.
• Right to Vote: Restrictions on voting based on factors other than age, residency, and citizenship generally trigger strict scrutiny (though this is often analyzed under Equal Protection).

Non-Fundamental Rights Examples

• Economic Rights: The right to practice a trade or profession, freedom of contract, and rights related to business regulation are subject only to rational basis review. Courts defer heavily to legislative judgment in economic matters.
• Right to Education: Education is not considered a fundamental right under SDP.
• Right to Physician-Assisted Suicide: Not recognized as a fundamental right. States may prohibit it.

Worked Example 1.2

A state law requires all individuals seeking a license to practice medicine within the state to pass a rigorous exam demonstrating competence. Dr. Able, who failed the exam, challenges the law, arguing it arbitrarily deprives him of his liberty to practice his chosen profession. Will Dr. Able likely succeed?

Answer: No. The right to practice a profession is not a fundamental right. The law regulates entry into the medical profession, which falls under the state's police power to protect public health and safety. The requirement of passing a competency exam is rationally related to the legitimate government interest of ensuring qualified medical practitioners. The law will be upheld under the rational basis test.

Key Point Checklist

This article has covered the following key knowledge points:

• Substantive Due Process limits the substance of government action affecting life, liberty, or property.
• It derives from the 5th (federal) and 14th (state/local) Amendments.
• Analysis depends on whether a fundamental or non-fundamental right is implicated.
• Laws burdening fundamental rights receive strict scrutiny (necessary for a compelling interest).
• Laws affecting non-fundamental rights receive rational basis review (rationally related to a legitimate interest).
• Fundamental rights include privacy (marriage, procreation, contraception, family relations, abortion), travel, and voting.
• Economic regulations are generally subject to rational basis review.
• Abortion regulations pre-viability are subject to the undue burden test.

Key Terms and Concepts

• Substantive Due Process
• Fundamental Rights
• Strict Scrutiny
• Rational Basis Test
• Undue Burden Test