Substantive due process
Substantive due process is a legal theory outlining restrictions on the government's ability to infringe upon constitutional liberties. Looking to the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution—which concerns procedural rights, such as a defendant's right to a fair trial—the substantive due process doctrine maintains that basic substantive rights, like freedom of speech and religion, are also protected by the clause.[1]
Procedural vs. substantive rights
The substantive due process doctrine differentiates between what are known as procedural and substantive rights. Procedural rights address the government's obligation to ensure that legal procedures are carried out in a fair and just manner (e.g., the right to a trial by a jury of one's peers). By contrast, substantive rights are general rights that individuals possess and upon which the government may not infringe. Examples of substantive rights enumerated in the U.S. Constitution include the rights to freedom of expression and freedom of association.[1][2]
The theory of substantive due process holds that substantive as well as procedural rights are protected by the U.S. Constitution. This argument is based on the Fifth and Fourteenth Amendments and reasons that these amendments guarantee that life, freedom and property cannot be infringed upon by the government without sufficient justification—regardless of the process by which they are infringed upon.[1] [3]
Privacy as a substantive right
The Supreme Court has ruled that the rights to "personal autonomy, bodily integrity, self-dignity, and self-determination" are protected by the Due Process Clause.[2] Together, these interests are invoked to justify a constitutionally protected right to privacy. This issue was first addressed in the 1965 case Griswold v. Connecticut, in which the Supreme Court ruled that it was unconstitutional for a state law to prohibit married adults from using contraception.[2][1]
A constitutionally protected right to privacy became a very important issue in Roe v. Wade, when the Supreme Court made the significant and controversial ruling that it was in violation of the Due Process Clause and the right to privacy for the government to prevent a woman from terminating her pregnancy during the first trimester.[2]
Other rights that the Supreme Court has ruled are protected by the right to privacy include:
- The right for parents to raise their children as they see fit (Pierce v. Society of the Sisters),
- The right for extended family members to share a home (Moore v. City of East Cleveland),
- The right for competent adults to refuse life-saving medical procedures (Cruzan v. Missouri Department of Health), and
- The right to engage in same-sex sexual relations (Lawrence v. Texas).[2]
Differing legal viewpoints
Critics of substantive due process argue that it upsets the balance of power between the branches of the U.S. government, giving undue power to the courts. In particular, they argue that the Supreme Court is given too much power over state law. The Supreme Court may not overturn state laws unless those laws violate the Constitution. Because substantive due process allows the Supreme Court to overturn laws restricting rights that are not explicitly enumerated in the Constitution, critics argue that it can result in functionally unlimited power of review over state laws. Even if a law is in violation of what some consider to be fundamental human rights, critics say, that does not necessarily mean that the law is unconstitutional; these critics believe that only truly unconstitutional laws ought to be overturned by the court system.[1]
Supporters of the theory argue that it is the best safeguard of human rights, arguing that without it state governments would be free to violate citizens rights so long as those rights are not among the few specifically enumerated in the Constitution. Most Supreme Court justices support the theory, to some extent.[1]
See also
External links
- LegalDictionary at the FreeDictionary.com, Substantive Due Process
- Search Google News for this topic
Footnotes
