United States Constitution

*By arriving here, you have found Substantive Due Process. If you meant to find Procedural Due Process.

The US Constitution, unlike other constitutions around the world, does not generally afford positive rights. Meaning, under the Constitution, federal and state governments do not have to affirmatively provide things for you. There is no constitutional right to access to healthcare. There is no constitutional right to public education and there is no constitutional right to employment. For an alternative vision of a national constitution that does provide such things, see the Constitution of South Africa.

However, the US Constitution does provide so-called negative rights. Meaning, under the Constitution, people have certain rights, freedom of speech, for example, that the government cannot infringe upon. Some of these rights are explicit. They are stated outright in the text of the Constitution. Some of these rights, though, are implied. Among the sources of the implied rights, the Due Process Clause is by far the richest. In addition to housing Procedural Due Process and being the bridge through which the Bill of Rights is applicable to the states, the Due Process Clause also guarantees substantive rights unto itself.

Conceptually, there may be no limit to the number of rights that can be derived from the Due Process Clause. As time has passed, the Supreme Court has found numerous such rights. The parameters, however, of what constitutes a right so fundamental as to be implied by the Due Process Clause have never been entirely concrete. To decide if a right is fundamental, the Court asks “whether the right…is fundamental to our scheme of ordered liberty…or whether this right is deeply rooted in our nation’s history and tradition.” Though this may sound more like a philosophical musing than a legal test, these phrases are at the core of what the Court has looked to in establishing implied fundamental rights.

Below, you will find examples of potential rights the Court has grappled with.

It is important to remember, however, that like with many other clauses in the Constitution, little is absolute. Simply because a right is found, does not mean that the government cannot constrict that right under certain circumstances. Once a fundamental right is established, the Court generally will then apply its most stringent level of review, what is known as “strict scrutiny.” Meaning, for a government action infringing on a fundamental right to be constitutional, the action must have a compelling purpose and the action must be narrowly tailored to that purpose. If the Court finds that this is not the case, the action will be unconstitutional.

Similarly, if a right is found not to be fundamental or protected by the Constitution, the Court will apply its least stringent level of review, what is known as “rational basis review.” Meaning, for a government action not infringing on a fundamental right, it need only have a legitimate purpose and the action must have a rational relationship to that purpose. Only if the Court finds this to not be the case will such an action be unconstitutional.

Finally, as an aside, the Due Process Clause in the 14th Amendment was modeled after the Due Process Clause of the 5th Amendment. The languages of the two amendments are nearly identical. This is fitting; because the 14th Amendment Due Process Clause was simply intended to extend to the states the same limitations as were placed on the federal government in the 5th Amendment. Therefore, it should be kept in mind that the analysis of Substantive Due Process and the various implied fundamental rights are the same whether infringed by a state government or the federal government. However, technically, when such a right is infringed upon by the federal government, protection is afforded by the 5th Amendment. When such a right is infringed upon by a state or local government, protection is afforded by the 14th Amendment.

By the Great Depression, however, with a seismic shift toward increased government involvement in businesses and employment, the Court shifted as well. In Nebbia v. New York (1934), without expressly rejecting the notion of a right to economic freedom, the Court nevertheless gave deference to the legislature and upheld a statute setting price controls for the dairy industry. By 1937, in West Coast Hotel Co. v. Parrish (1937), upholding the constitutionality of a minimum wage requirement, the Court explicitly repudiated the freedom of contract. “What is this freedom?” asked Chief Justice Hughes. “The Constitution does not speak of freedom of contract.” It is this approach that has held sway among the Justices ever since.

Today, some consider the demise of the Lochner Era and the rise of other Substantive Due Process rights to be inherently contradictory. But this theoretical debate aside, Economic Substantive Due Process no longer exists, while Non-Economic Substantive Due Process is alive and well.

However, the Court still recognized other potential government interests, such as mitigating the health risks of obtaining an abortion, and protecting a “potential person.” To resolve the balancing of these interests, the Court somewhat uniquely created what came to be known as the “trimester framework.” Meaning, instead of looking to the violation of the Due Process Right to privacy and applying ordinary strict scrutiny to restrictions and the purposes behind those restrictions, the Court creating another, separate analysis singularly for abortion restrictions. This test resembled strict scrutiny but used the three trimesters of a pregnancy as guideposts for balancing the value of the potential life of the fetus, and health and privacy of the mother. The trimester framework has since been abandoned by the Court, but Roe still today stands for the proposition that government does not have a blank check to prohibit all abortions.

Instead of the trimester framework, the modern test for the constitutionality of abortion restrictions comes from the Court’s decision in Planned Parenthood of Southern Pennsylvania v. Casey (1992). This case, challenging some abortion restrictions passed by Pennsylvania, was thought by many to be the one that would see Roe overturned, considering the changes that the makeup of the Court had undergone in the decades since Roe was decided. Though the trimester framework was rejected by the Court, Roe‘s central premise, that woman has a privacy right to choose to have an abortion, was affirmed.

Justice O’Conner, writing for the plurality opinion in Casey, felt that Roe had undervalued the potential life of the fetus. She established a test that turned on what she called an “undue burden.” Under this test, for a viable fetus, government may completely ban abortion. But for a fetus that is not yet viable, if the state restriction has the effect of placing a substantial obstacle in the path of a woman seeking an abortion, this restriction is an undue burden and is unconstitutional. If the state restriction does not place a substantial obstacle in the way of a woman’s choice, even if a state measure is designed to persuade her to choose childbirth over abortion, the measure will be upheld.

Justice O’Conner used this test to uphold an informed consent provision where, except for a medical emergency, a woman must wait at least 24 hours after her physician describes the nature of the procedure, risks of the procedure, and the probable gestational age of the unborn child to get an abortion. But the Court also invalidated a spousal consent provision where a wife needed consent from her husband to obtain an abortion.

Today, under this standard, strict scrutiny is not given to abortion laws; and instead, the undue burden test is applied.

Yet, despite this language, Justice Kennedy did not apply strict scrutiny to the Texas statute. Meaning, he still did not believe that the right to exercise that liberty rose to the level of a fundamental right. Instead, he applied rational basis review, the lowest level of review with the greatest discretion afforded to legislatures, and invalidated the statute nonetheless.

This confusing analysis has left lower courts struggling to understand the place that sexual privacy holds on the spectrum of constitutional freedoms, though not necessarily to the degree that Justice Kennedy, dissenting in Lawrence, anticipated. Ultimately, what is clear from Lawrence, is that Bowers has been repudiated.

Tangentially, Justice O’Conner, who had actually been in the majority in Bowers, wrote her own concurrence in Lawrence. She approved of the invalidation of the Texas sodomy law; but she did not agree with Justice Kennedy’s analysis. Instead of focusing on Substantive Due Process and implied fundamental rights, Justice O’Conner felt that the statute in question in Lawrence violated the Equal Protection Clause.

Justice O’Conner felt that the statute in Lawrence, which specifically criminalized sexual conduct between homosexual partners unconstitutionally singled out one group from others, while the statute in Bowers was technically drafted to apply to both homosexual and heterosexual partners. Justice O’Conner used this analysis to characteristically split the difference between Bowers and Lawrence, holding that both cases were correctly decided, instead of holding that Lawrence overruled Bowers.

However, the Court did not use the Due Process Clause to invalidate the statute. After expressing the above unequivocal sentiment, the Court applied strict scrutiny under the Equal Protection Clause. Meaning, the statute was not unconstitutional because it infringed on some fundamental right as housed in the Due Process Clause. Instead, the statute was unconstitutional because it unconstitutionally treated people differently. In the Oklahoma statute, only some criminals were subject to the sterilizations, leaving out white-collar criminals entirely. It was this classification that triggered strict scrutiny, rendering the statute invalid.

But though Skinner did not technically overrule Buck, the number of forced sterilizations dropped after the mid-1940s, due to both the legal uncertainty left by Skinner and the aftermath of the crimes committed during World War II. Still, while the right to procreate has been practically protected, it has not been explicitly recognized and analyzed under the Due Process Clause

Underpinning the very notion of voting is the democratic goal of equalizing the voices of the people. Even though poll taxes were invalidated in Harper v. Virginia State Board of Elections (1966) under the Equal Protection Clause, and the recount in the 2000 Presidential Election was invalidated in Bush v. Gore (2000) under the Equal Protection Clause, the right to vote is often included among the implied fundamental rights as guaranteed by the Due Process Clause.

The dissent in Plyer admonished the majority for its inconsistency and for clouding the law regarding fundamental rights and education, accusing the majority of using a “quasi-fundamental right” analysis. The dissent was emphatic: “If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.”

Still, despite this case, the Court’s approach to affirmative rights remains relatively clear: none exist under the U.S. Constitution.