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Amdt14.S1.6.1 Overview of Substantive Due Process

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

The Supreme Court has interpreted the Fifth and Fourteenth Amendments’ Due Process Clause—which prohibits the government from depriving “any person of life, liberty, or property without due process of law” —to protect certain fundamental constitutional rights from government interference, regardless of the procedures that the government follows when enforcing the law. These protected rights, though not listed in the Constitution, are deemed so fundamental that courts must subject government actions infringing on them to closer scrutiny. The Fourteenth Amendment, in particular, adopted as one of the Reconstruction Amendments after the Civil War, protects individuals from interference by state actions.1

Although the Court, in the immediate years following the Fourteenth Amendment’s ratification, declined to interpret the Due Process Clause as placing a substantive constraint on state actions, it went on to apply to robust notion of substantive due process to economic legislation prior to the Great Depression Era. During this period, the Court, recognizing “liberty of contract” as an interest protected by the Due Process Clause, struck down a variety of economic regulations as unconstitutional. The Court, however, ultimately retreated from the doctrine of economic substantive due process as the laissez-faire approach to economic regulation receded with the Great Depression.2

In contrast to the Court’s shift away from economic substantive due process, the Court continued to develop the doctrine of noneconomic due process during the twentieth century, invalidating several governmental actions as impermissibly infringing upon certain fundamental rights, including the right to use contraceptives, to marry, and to engage in certain adult consensual intimate conduct. Since the 1980s, however, the Court—with the exception of two cases involving the right of same-sex couples—has generally declined to invalidate government actions on substantive due process grounds. 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.3

The Fifth Amendment’s Due Process Clause protects individuals from federal government interference. For more about the substantive due process under the Fifth Amendment see Amdt5.7.1 Overview of Substantive Due Process Requirements. back
See Amdt14.S1.6.2.1 Overview of Economic Substantive Due Process to Amdt14.S1.6.2.3 Laws Regulating Working Conditions and Wages. back
See Amdt14.S1.6.3.1 Overview of Noneconomic Substantive Due Process to Amdt14.S1.6.5.3 Civil Commitment and Substantive Due Process. back