Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action. Compare with procedural due process.
The Supreme Court’s first foray into defining which government actions violate substantive due process was during the Lochner Era. The Court determined that the freedom to contract and other economic rights were fundamental, and state efforts to control employee-employer relations, such as minimum wages, were struck down. In 1937, the Supreme Court rejected the Lochner Era’s interpretation of substantive due process in West Coast Hotel v. Parrish, 300 U.S. 379 (1937) by allowing Washington to implement a minimum wage for women and minors. One year later, in footnote 4 of U.S. v. Carolene Products, 304 U.S. 144 (1938), the Supreme Court indicated that substantive due process would apply to: “rights enumerated in and derived from the first Eight Amendments to the Constitution, the right to participate in the political process, such as the rights of voting, association, and free speech, and the rights of ‘discrete and insular minorities.’”
Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:
- The right to privacy, specifically a right to contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965)
- The right to pre-viability abortion. Roe v. Wade, 410 U.S. 113, (1973)
- The right to marry a person of a different race. Loving v. Virginia, 388 U.S. 1 (1967)
- The right to marry an individual of the same sex. Obergefell v. Hodges, 576 U.S. 644 (2015)
[Last updated in April of 2022 by the Wex Definitions Team]