Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Supreme Court has interpreted the Fifth and Fourteenth Amendments’ Due Process Clauses—which prohibit the government from depriving any person of “life, liberty, or property, without due process of law” —to protect certain fundamental constitutional rights from federal government interference, regardless of the procedures that the government follows when enforcing the law.1 Substantive due process has generally dealt with specific subject areas, such as liberty of contract, marriage, or privacy.

The judicial notion of substantive due process developed early in U.S. history. State court judges attempted to formulate a theory of “natural rights” to limit government interference with private property rights.2 These “vested rights” jurists found in the “law of the land” and the “due process” clauses of the states’ constitutions a restriction upon the substantive content of legislation.3 Other jurists opposed this “vested rights” theory of property protection, arguing that the state’s written constitution was its supreme law, and that judges should not look beyond the constitution to the “unwritten law” of “natural rights” when scrutinizing state legislation.4 Some opponents of this theory argued that the government’s “police power” allowed the state to regulate the use and holding of property in the public interest, subject only to the specific prohibitions of the state’s written constitution.5

The Supreme Court recognized that the Fifth Amendment guaranteed some form of substantive due process in the years leading up to the Civil War. In its 1857 opinion in Scott v. Sanford, the Court declared that the Missouri Compromise, which prohibited slavery in some U.S. territories, had been an unconstitutional deprivation of slaveholders’ property.6 The Court wrote that an act of Congress that deprived “a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.” 7 After the Civil War and the ratification of the Fourteenth Amendment’s Due Process Clause, the Supreme Court recognized due process guarantees with regard to state legislation.8 The Court applied a robust notion of substantive due process to strike down economic legislation prior to the Great Depression Era.9

Beginning in the twentieth century, the Court developed the doctrine of noneconomic substantive due process under the Fifth and Fourteenth Amendments, beginning with cases in which the Court recognized a constitutional right to privacy.10 The Court recognized that the Constitution’s due process guarantees protected additional fundamental rights from government interference, including the right to use contraceptives, to marry, and to engage in certain adult consensual intimate conduct.11 However, since the 1980s, the Court has generally declined to invalidate government actions on substantive due process grounds, with a few exceptions.12 In 2022, the Court further signaled a potential retreat from noneconomic substantive due process when it reversed the position it had held for nearly five decades to hold that the right to abortion is not a constitutionally protected fundamental right.13

Footnotes

1

E.g., Zablocki v. Redhail, 434 U.S. 374, 386–87 (1978) (citing Loving v. Virginia, 388 U. S. 1 (1967)).

2

Compare the remarks of Justices Samuel Chase and James Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89, 398–99 (1798).

3

The full account is related in E. Corwin, Liberty Against Government ch. 3 (1948). The pathbreaking decision of the era was Wynhamer v. The People, 13 N.Y. 378 (1856).

4

See Edward S. Corwin, Basic Doctrine of American Constitutional Law, 12 Mich. L. Rev. 247, 247–48 (1914).

5

See id.

6

60 U.S. (19 How.) 393, 451–52 (1857), superseded by constitutional amendment, U.S. Const. amend. XIV.

7

Scott, 60 U.S. (19 How.) at 450.

8

Amdt14.S1.3 Due Process Generally.

9

Amdt14.S1.6.2.2 Liberty of Contract and Lochner v. New York.

10

Warren and Brandeis, The Right of Privacy, 4 Harv. L. Rev. 193 (1890). See Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting) (arguing against the admissibility in criminal trials of secretly taped telephone conversations). In Olmstead, Justice Louis Brandeis wrote:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

277 U.S. at 478. Amdt14.S1.6.3.2 Historical Background on Noneconomic Substantive Due Process.

11

Amdt14.S1.6.1 Overview of Substantive Due Process.

12

See id.

13

See id.