Substantive due process

Substantive due process is a principle in <a href="/facts/United_States_constitutional_law/G5C2HlQk">United States constitutional law</a> that allows courts to establish and protect <a href="/facts/Substantive_law/u0eqR60v">substantive laws</a> and certain <a href="/facts/Fundamental_rights_in_the_United_States/VwhDNd5X">fundamental rights</a> from government interference, even if they are <a href="/facts/Unenumerated_rights/jwHKUR1r">unenumerated</a> elsewhere in the <a href="/facts/U.S._Constitution/AJlEWNR3">U.S. Constitution</a>. Courts have asserted that such protections stem from the <a href="/facts/Due_Process_Clause/0QCG0RY2">due process clauses</a> of the <a href="/facts/Fifth_Amendment_to_the_United_States_Constitution/6ET9uaLU">Fifth</a> and <a href="/facts/Fourteenth_Amendment_to_the_United_States_Constitution/TXMVRymL">Fourteenth Amendments</a> to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "<a href="/facts/Ordered_liberty/HV8qeMc2">liberty</a> ... without <a href="/facts/Due_process_of_law/cbKduKzM">due process of law</a>." Substantive due process demarcates the line between acts that courts deem subject to government regulation or legislation and those they consider beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In his concurrence in the 2022 landmark decision <a href="/facts/Dobbs_v._Jackson_Women%27s_Health_Organization/RqTEMn7H">Dobbs v. Jackson Women's Health Organization</a>, Justice <a href="/facts/Clarence_Thomas/zdVbSH1A">Clarence Thomas</a> called on the Supreme Court to reconsider all of its rulings that were based on substantive due process. 
Substantive due process is to be distinguished from procedural due process. The distinction arises from the words "of law" in the phrase "due process of law". Procedural due process protects individuals from the <a href="/facts/Coercion/Cs2TDsUR">coercive</a> power of government by ensuring that adjudication processes, under valid laws, are fair and impartial. Such protections, for example, include sufficient and timely <a href="/facts/Notice/Wxy9eelC">notice</a> of why a party is required to appear before a court or other governmental body, the right to an impartial <a href="/facts/Trier_of_fact/4l7kgIdm">trier of fact</a> and <a href="/facts/Trier_of_law/DwkWTbF3">trier of law</a>, and the right to give testimony and present relevant evidence at hearings. In contrast, substantive due process protects individuals against <a href="/facts/Majoritarian/PqC3DpJD">majoritarian</a> policy enactments that exceed the limits of governmental authority: courts may find that a majority's enactment is not law and cannot be enforced as such, even if the processes of enactment and enforcement were actually fair. 
The term was first used explicitly in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1952 Supreme Court opinions had mentioned it twice. The term "substantive due process" itself is commonly used in two ways: to identify a particular line of case law and to signify a particular political attitude toward <a href="/facts/Judicial_review/uYAcGDsm">judicial review</a> under the two due process clauses.
Much substantive due process litigation involves legal challenges to the validity of unenumerated rights and seeks particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally based liberty and considers laws that seek to limit that liberty to be unenforceable or limited in scope. Critics of substantive due process decisions usually assert that such decisions should be <a href="/facts/Judicial_restraint/F36fYETu">left to the purview of more politically-accountable branches of government</a>.

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Substantive due process