Substantive Due Process: Fundamental Rights, Liberty Interests

Explore the concept of substantive due process, its historical roots, key Supreme Court cases, and its role in protecting fundamental rights and liberty interests under the Fourteenth Amendment.

Substantive due process is a critical concept within constitutional law, particularly under the Fourteenth Amendment of the United States Constitution. This legal doctrine protects certain fundamental rights from government interference, even if procedural protections are in place. This article provides a comprehensive guide to understanding substantive due process, its historical context, its application in modern jurisprudence, and its implications for fundamental rights and liberty interests.

Historical Context

Magna Carta and Early Foundations

The concept of due process has its roots in the Magna Carta of 1215, which established the principle that the king could not deprive a free man of his rights without lawful judgment. This principle laid the groundwork for the development of due process in English common law and later in American constitutional law.

Learn more about the Magna Carta and due process

The Fourteenth Amendment

The Fourteenth Amendment, ratified in 1868, significantly expanded the scope of due process by applying it to state actions. The Due Process Clause of the Fourteenth Amendment states:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Read the full text of the Fourteenth Amendment

Substantive Due Process: An Overview

Definition and Scope

Substantive due process refers to the notion that due process not only protects certain legal procedures but also protects certain rights from government interference. These rights are deemed "fundamental" and include both enumerated and unenumerated rights.

Fundamental Rights

Fundamental rights under substantive due process include, but are not limited to:

  • Right to Privacy: This encompasses various aspects such as marriage, procreation, contraception, family relationships, child rearing, and education.
  • Right to Travel: The right to move freely between states.
  • Right to Vote: Ensuring that citizens can participate in the electoral process.

Liberty Interests

Liberty interests protected by substantive due process include:

  • Bodily Integrity: Protection against involuntary medical procedures.
  • Personal Autonomy: Decisions related to personal matters such as marriage and family.

Key Supreme Court Cases

Lochner v. New York (1905)

In Lochner v. New York, the Supreme Court struck down a state law limiting bakers' working hours, holding that it violated the freedom of contract protected by the Due Process Clause. This case marked the beginning of the "Lochner era," where the Court frequently invalidated state regulations on economic grounds.

Griswold v. Connecticut (1965)

In Griswold v. Connecticut, the Supreme Court recognized a constitutional right to privacy, striking down a state law that prohibited the use of contraceptives. This case established the basis for the right to privacy under substantive due process.

Roe v. Wade (1973)

In Roe v. Wade, the Supreme Court held that the right to privacy encompasses a woman's right to choose to have an abortion. This landmark decision expanded the scope of substantive due process to include reproductive rights.

Obergefell v. Hodges (2015)

In Obergefell v. Hodges, the Supreme Court ruled that same-sex couples have a fundamental right to marry under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. This decision underscored the evolving nature of substantive due process in recognizing new fundamental rights.

Strict Scrutiny

When a law infringes upon a fundamental right, courts apply the strict scrutiny standard. Under this test, the government must show that the law is narrowly tailored to achieve a compelling state interest.

Rational Basis Review

For non-fundamental rights, courts apply the rational basis review. Under this test, the law must be rationally related to a legitimate government interest.

Modern Applications and Controversies

Dobbs v. Jackson Women's Health Organization (2022)

In Dobbs v. Jackson Women's Health Organization, the Supreme Court revisited the issue of abortion rights. The decision upheld a Mississippi law banning most abortions after 15 weeks of pregnancy, signaling a potential shift in the Court's approach to substantive due process and reproductive rights.

Read the full opinion in Dobbs v. Jackson Women's Health Organization

Right to Community Services

The right to community services for individuals with disabilities has been recognized as a substantive due process right. This ensures that individuals with disabilities have access to necessary services and supports to live independently in the community.

Learn more about the right to community services


Substantive due process remains a dynamic and evolving area of constitutional law. It serves as a critical safeguard for protecting fundamental rights and liberty interests from government interference. As societal values and norms continue to evolve, so too will the interpretation and application of substantive due process in safeguarding individual freedoms.

For further reading and official resources, please refer to the following links:

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Von Wooding

Von Wooding

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