10.2 Substantive Due Process: Fundamental Rights & Other Liberty Interests

10.2 Substantive Due Process: Fundamental Rights & Other Liberty Interests

Substantive due process asks whether the government has a sufficient reason to take away a liberty or property interest at all, no matter how fair its procedures. The first step is always classifying the interest: fundamental rights trigger strict scrutiny, and everything else receives rational basis review.

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Substantive Due Process

Substantive Due Process addresses whether the government has an adequate substantive justification for taking away a person's life, liberty, or property, regardless of how fair the procedural mechanisms are. It asks: May the government regulate or prohibit this activity at all?

The Analytical Framework: Tiers of Scrutiny

Substantive due process challenges are evaluated under one of two judicial standards based on whether the burdened liberty interest constitutes a Fundamental Right:

1. Fundamental Rights → Strict Scrutiny:
   • Burden of Proof: On the Government.
   • Standard: The government must prove that the statute or regulation is necessary (narrowly tailored, using the least restrictive means) to achieve a compelling, overriding governmental interest.
   • Judicial Presumption: Presumptively unconstitutional; very difficult for the government to survive.
2. Non-Fundamental Rights / Economic Regulations → Rational Basis Review:
   • Burden of Proof: On the Challenger.
   • Standard: The challenger must prove that the law is not rationally related to any legitimate governmental interest.
   • Judicial Presumption: Heavily presumed constitutional; the court will uphold the regulation if there is any conceivable, plausible public health, safety, or welfare justification (Williamson v. Lee Optical, West Coast Hotel Co. v. Parrish).

Catalog of Fundamental Rights

To qualify as a fundamental right under the Due Process Clause, the asserted liberty must be "objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty" (Washington v. Glucksberg).

1. Privacy, Bodily Autonomy, and Family Integrity

• Contraception: Fundamental right of married (Griswold v. Connecticut) and unmarried (Eisenstadt v. Baird) individuals to purchase, possess, and use contraceptives.
• Marriage: Fundamental right to marry for opposite-sex couples (Loving v. Virginia, Zablocki v. Redhail, Turner v. Safley) and same-sex couples (Obergefell v. Hodges).
• Family Relationships & Living Arrangements (Moore v. City of East Cleveland): The right of related family members—including extended family (grandparents, grandchildren, aunts, uncles, cousins)—to live together in a single household is a fundamental liberty. Strict scrutiny invalidates zoning ordinances limiting occupancy strictly to nuclear families. Contrast with Village of Belle Terre v. Boraas, where a zoning restriction prohibiting more than two unrelated individuals from living together was upheld under rational basis.
• Child-Rearing and Education: Parents possess a fundamental right to direct the upbringing, care, custody, and education of their children (Meyer v. Nebraska, Pierce v. Society of Sisters). State statutes allowing state courts to grant grandparent visitation over the objection of a fit parent violate due process because fit parents are presumed to act in their children's best interests (Troxel v. Granville).
• Private Consensual Adult Intimacy (Lawrence v. Texas): Consensual adult sexual conduct in private is a protected liberty interest. Statutes criminalizing private same-sex sodomy lack even a legitimate state purpose, as moral disapproval alone cannot justify state intrusion.
• Abortion After Dobbs: In Dobbs v. Jackson Women's Health Organization (2022), the Supreme Court explicitly overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). The Court held that the federal Constitution does not confer a fundamental right to abortion. State and federal abortion restrictions are now evaluated under Rational Basis Review under the federal Constitution. A state regulation restricting or banning abortion will be sustained if it rationally furthers legitimate state interests, such as protecting maternal health or preserving prenatal life.

2. The Right to Refuse Medical Treatment

• Competent Adults (Cruzan v. Director, Missouri Dept. of Health): A competent adult possesses a constitutionally protected Fourteenth Amendment liberty interest in refusing unwanted medical care, including life-prolonging hydration and nutrition.
• Clear and Convincing Standard: A state may constitutionally require that a surrogate decisionmaker prove an incompetent patient's prior wish to terminate life support by clear and convincing evidence.
• No Right to Assisted Suicide (Washington v. Glucksberg, Vacco v. Quill): There is no fundamental right to physician-assisted suicide. State bans on assisting suicide are evaluated under rational basis review and are routinely sustained.

3. The Fundamental Right to Interstate Travel

• Constitutional Basis: Citizens possess a fundamental right to travel freely between states, to enter and leave states, and to be treated as welcome visitors or new permanent residents on equal terms with existing residents (Saenz v. Roe).
• Durational Residency Requirements: State laws imposing durational residency waiting periods (e.g., must reside in state for 1 year) before becoming eligible for vital public benefits—such as welfare assistance (Shapiro v. Thompson), free emergency medical care (Memorial Hospital v. Maricopa County), or voting eligibility (Dunn v. Blumstein)—infringe upon the right to travel and are subject to strict scrutiny.
• Exceptions Upheld Under Rational Basis: One-year durational residency requirements for obtaining an in-state divorce (Sosna v. Iowa) or qualifying for lower in-state university tuition rates (Starns v. Malkerson) have been sustained due to state interests in the integrity of domestic relations decrees and educational funding.

4. The Second Amendment Right to Keep and Bear Arms

• Individual Right (District of Columbia v. Heller): The Second Amendment guarantees an individual right to possess and carry firearms for self-defense, unconnected with service in an organized militia.
• Incorporation (McDonald v. Chicago): The Second Amendment is fully incorporated against the states through the Fourteenth Amendment Due Process Clause.
• The Historical Tradition Standard (New York State Rifle & Pistol Ass'n v. Bruen): When the Second Amendment's plain text covers an individual's conduct (such as carrying a handgun in public for self-defense), the Constitution presumptively protects that conduct. The government cannot defend its regulation under means-end scrutiny (such as intermediate or strict scrutiny); rather, the government must affirmatively demonstrate that the firearm regulation is consistent with the Nation's historical tradition of firearm regulation.
• Applying the Tradition (United States v. Rahimi, 2024): The Court upheld a federal law disarming a person subject to a domestic-violence restraining order that includes a finding that the person poses a credible threat to the physical safety of an intimate partner or child. A modern law need not be a "historical twin"; it must be consistent with the principles underlying the tradition, which has long allowed disarming individuals found to threaten the physical safety of others.

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Other Substantive Due Process Applications

Economic Liberty and Retroactive Laws

• The end of Lochner: Courts no longer use substantive due process to invalidate ordinary economic regulations. Minimum-wage laws (West Coast Hotel Co. v. Parrish, 1937) and occupational licensing restrictions (Williamson v. Lee Optical, 1955) are upheld if a legislature could rationally have thought they served a legitimate purpose, even without supporting evidence.
• Retroactive civil legislation: Federal and state civil laws with retroactive effects are generally reviewed for rationality, such as requiring coal operators to compensate former miners for black lung disease (Usery v. Turner Elkhorn Mining Co., 1976). State laws impairing existing contracts are analyzed under the Contracts Clause (Section 11.2).

Punitive Damages

Due process forbids grossly excessive punitive damages. Courts consider three guideposts: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio between punitive damages and the actual or potential harm, with single-digit ratios more likely to satisfy due process; and (3) the difference between the award and civil penalties authorized for comparable misconduct (BMW of North America, Inc. v. Gore, 1996; State Farm Mutual Automobile Insurance Co. v. Campbell, 2003). Juries also may not punish a defendant for harm to nonparties (Philip Morris USA v. Williams, 2007).

Executive Conduct That Shocks the Conscience

When a claim challenges a specific act of an executive official rather than a law, the question is whether the conduct "shocks the conscience." A high-speed police chase that caused a death did not meet that standard absent a purpose to cause harm unrelated to the legitimate object of arrest (County of Sacramento v. Lewis, 1998). Forcibly pumping a suspect's stomach to recover evidence did (Rochin v. California, 1952).

Incorporation of the Bill of Rights

The Fourteenth Amendment's Due Process Clause incorporates against the states nearly all of the Bill of Rights guarantees that are fundamental to the American scheme of justice, and incorporated rights apply the same way to the states as to the federal government. Recent examples include the Second Amendment (McDonald v. City of Chicago, 2010), the Excessive Fines Clause (Timbs v. Indiana, 2019), and the Sixth Amendment's requirement of a unanimous jury to convict of a serious offense (Ramos v. Louisiana, 2020). The Grand Jury Clause of the Fifth Amendment and the Seventh Amendment civil jury right have not been incorporated.

Using the History-and-Tradition Test

In Dobbs, the Court emphasized that the Due Process Clause protects unenumerated rights only if they are deeply rooted in history and tradition and essential to ordered liberty, and it stated that its decision concerned abortion and should not be understood to cast doubt on precedents that do not involve abortion. When an MBE question involves a claimed right that is not on the list of recognized fundamental rights—such as a right to physician-assisted suicide, to a particular occupation, or to a certain level of public benefits—rational basis review is the likely standard.

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Comparison: Procedural Due Process vs. Substantive Due Process