![]() Connecticut, a 1965 decision invalidating a criminal prohibition against the use of contraceptives by married persons, that the Court expressly recognized a constitutional right of marital privacy, though there remained some question of its source in the text. Here, Justice Douglas famously said: “Marriage and procreation are fundamental to the very existence and survival of the race.” But it was only in Griswold v. Oklahoma, a 1942 equal protection decision that struck down sterilization as criminal punishment. There were hints of what was to come in Skinner v. In other words, so long as an economic regulation could be considered to have a rational basis, it did not violate substantive due process.Ĭurrent Substantive Due Process/Privacy DoctrineĮven though meaningful substantive due process review is now effectively dead in economic regulation matters, it has survived and subsequently thrived as applied to liberty in family and sexual matters. Eventually the Court became incredibly deferential to state (and federal) regulation of economic matters, using in most such cases what lawyers call a “conceivable rational basis” test. Here the Court struck down a New York statute that regulated the maximum hours that bakers could work as a violation of the liberty of contract of employers and employees to negotiate hours and working conditions in general without government interference.īut starting in the mid-1930’s, the Court retreated dramatically from intervening judicially in such matters (one aspect of what some have called “the switch in time that saved nine” in response to President Roosevelt‘s court-packing plan). The high-water mark of substantive due process in economic regulation matters may have been reached in the early part of the 20th century in the (in)famous Lochner v. The Retreat from Substantive Due Process in Economic Matters These decisions thus address the non-economic, family related liberty component of substantive due process. Society of Sisters) that states violated substantive due process when they prohibited parents from arranging to have their children learn the German language and also when they required all children to attend a public school while prohibiting them from attending religious private schools. For example, in the 1920’s the Supreme Court ruled (in Meyer v. Here, the Court held that the Missouri Compromise was unconstitutional because it took away the property of slaveholders and thus violated substantive due process.Įven though substantive due process was typically identified with economic regulation, there was an important component that dealt with liberty in family matters. Interestingly, perhaps the first use of substantive due process by the Supreme Court was in the infamous Dred Scott case in antebellum America. Nevertheless, the Supreme Court, beginning in the late 19th century and ending in the mid-1930’s, used substantive due process to strike down many state regulations dealing with economic matters such as employment relationships, work conditions and other attempts to regulate business interests. The term “substantive due process” is a bit of an oxymoron since “due process” suggests procedure in contrast to substance. The History of Substantive Due Process: Economic Regulation/Family ![]() One reason that substantive due process is so controversial is that it is not explicitly based in the text of the Constitution, thereby suggesting to some that the Supreme Court has acted improperly and has simply (or not so simply) made it up. It is far less complicated and controversial than substantive due process, the subject of this post, which focuses on government regulation of conduct such as abortion, sexual conduct and certain family matters. ![]() The immediately preceding post deals with procedural due process which focuses on fair and timely procedures. The Fourteenth Amendment’s Due Process Clause applies to state and local governments (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).ĭistinguishing Between Procedural Due Process and Substantive Due Process The Fifth Amendment’s Due Process Clause applies to the federal government (“No person … shall …be deprived of life, liberty, or property, without due process of law”). The immediately preceding post and this post deal with the meaning of the Due Process Clauses that appear in the Fifth and Fourteenth Amendments. This is another in a series of posts written about the Constitution in everyday language, with a minimum of legal jargon. Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural due process.
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