We are independent & ad-supported. We may earn a commission for purchases made through our links.
Advertiser Disclosure
Our website is an independent, advertising-supported platform. We provide our content free of charge to our readers, and to keep it that way, we rely on revenue generated through advertisements and affiliate partnerships. This means that when you click on certain links on our site and make a purchase, we may earn a commission. Learn more.
How We Make Money
We sustain our operations through affiliate commissions and advertising. If you click on an affiliate link and make a purchase, we may receive a commission from the merchant at no additional cost to you. We also display advertisements on our website, which help generate revenue to support our work and keep our content free for readers. Our editorial team operates independently of our advertising and affiliate partnerships to ensure that our content remains unbiased and focused on providing you with the best information and recommendations based on thorough research and honest evaluations. To remain transparent, we’ve provided a list of our current affiliate partners here.
Finance

Our Promise to you

Founded in 2002, our company has been a trusted resource for readers seeking informative and engaging content. Our dedication to quality remains unwavering—and will never change. We follow a strict editorial policy, ensuring that our content is authored by highly qualified professionals and edited by subject matter experts. This guarantees that everything we publish is objective, accurate, and trustworthy.

Over the years, we've refined our approach to cover a wide range of topics, providing readers with reliable and practical advice to enhance their knowledge and skills. That's why millions of readers turn to us each year. Join us in celebrating the joy of learning, guided by standards you can trust.

What is Substantive Due Process?

By Dani Alexis R.
Updated: Feb 27, 2024
Views: 14,487
Share

In the United States (US), substantive due process refers to those rights that, while not specifically mentioned in the US Constitution, are nevertheless recognized because they are "implicit in the concept of ordered liberty," according to the US Supreme Court. For instance, many substantive due process cases discuss the constitutional right to privacy, even though the word privacy does not appear in the constitution. These rights arise from the Fifth and Fourteenth Amendments to the constitution, which prohibit the government from depriving citizens of "life, liberty, or property, without due process of law." Substantive due process rights are mainly concerned with the liberties of citizens.

The US Supreme Court first recognized a substantive due process right in the 1930s, when it struck down federal minimum wage laws and child labor laws on the grounds that they violated a substantive "freedom of contract." In modern times, the Supreme Court deals with substantive due process rights in three main areas that are described in United States v. Carolene Products Co.. These areas include the first eight amendments to the constitution; rights related to the political process, such as voting; and the rights of "discrete and insular minorities," such as racial groups. Other substantive due process rights the Supreme Court has recognized include the right to marry, discussed in Loving v. Virginia; the right to have children, discussed in Skinner v. Oklahoma; and the right to have one's children instructed in a foreign language, in Meyer v. Nebraska.

When analyzing a situation in which the government may have violated a substantive due process right, a court first asks if the right at issue is a fundamental right. Fundamental rights are those that are deeply rooted in American history or tradition. If the right is a fundamental right, the court applies what is known as strict scrutiny, in which it asks if the violation is narrowly tailored to meet a compelling government interest. If the court finds the right is not a fundamental right, it applies rational basis review, which asks whether the government's violation of the right is rationally related to a legitimate state interest.

Substantive due process is different from procedural due process. It is also guaranteed by the Fifth and Fourteenth Amendments. Procedural due process guarantees the right to be informed about government activities that may infringe on a particular right and the opportunity to be heard on the issue.

Share
WiseGeek is dedicated to providing accurate and trustworthy information. We carefully select reputable sources and employ a rigorous fact-checking process to maintain the highest standards. To learn more about our commitment to accuracy, read our editorial process.

Editors' Picks

Discussion Comments
Share
https://www.wise-geek.com/what-is-substantive-due-process.htm
Copy this link
WiseGeek, in your inbox

Our latest articles, guides, and more, delivered daily.

WiseGeek, in your inbox

Our latest articles, guides, and more, delivered daily.