Substantive Due What? (Part I)

Family restoration is necessary for a healthy society. Everyone has been touched by some familial problem whether it is divorce, abortion, or separation. But one of the critical steps in figuring out solutions to our problems is to understand the state of the law regarding a family’s rights vis-รก-vis the individual. In modern day America, courts have increasingly upheld the rights of the individual above the rights of a family, twisting many of the Supreme Court’s early 1900 decisions protecting the family into destructive holdings breaking down the family. One of the avenues the Court has used to create and elevate the individual and personal autonomy has been the doctrine of substantive due process.

The majority of Americans, if asked what substantive due process is, would have no idea. In fact, I would even postulate that many law students cannot even give it a definition. That is unsurprising because, in truth, substantive due process is a contradiction in terms. The Due Process Clauses, contained in the 5th and 14th Amendments “guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one's life, liberty, or property.”[1] Substantive rights, however, encompass an individual’s various freedoms such as the Freedom of Speech, Religion, and the like. They are the “what” whereas due process is the “how” these rights are guaranteed.[2] Substantive Due Process, then, is a doctrine developed by the Supreme Court that guarantees not only that just processes be used whenever the government is punishing a person or otherwise depriving them of life, freedom or property, but that the 5th and 14th Amendments recognize some rights that are so fundamental to an individual’s liberty that the government cannot take them away, regardless of the procedure used.

So that begs the question: how did something that guarantees procedure come to give individuals substantive protections as well? The answer to that question is less than straightforward, but most scholarship suggests that the first sustained commitment to its usage followed from the 1905 case, Lochner v. New York.[3] In Lochner, the Court invalidated a New York statute that limited bakery employees to ten hours per day or sixty hours per week, holding that the law deprived the workers of their “liberty to contract” without “due process of law.”[4] According to one legal scholar, the majority in Lochner essentially supported their rationale with nothing more concrete than tenuous claims to constitutional theory: “Armed with nothing more than the vague . . . language of the due process clause, the Court had claimed for itself the power to invalidate legislative actions that interfered with the Court’s own version of fundamental liberty.”[5] Therefore, in one fortuitous decision, the Court infused the Due Process Clause with substantive meaning, “protecting, in essence, the economic philosophy of laissez faire” and opened the Constitution for 21st century business.[6]

In the years following Lochner, the Court generally utilized its creative due process jurisprudence in cases dealing with the economic sphere alone. However, as the decision in Lochner did not specifically delineate between economic and non-economic issues the Court sought to expand its application of substantive due process more generally in the area of privacy. In 1919, the Nebraska legislature, highly cognizant of the patriotic zeal of the American public post World War I, passed a law prohibiting anyone from teaching any subject in a language other than English; the law further stipulated that no child could be taught a foreign language until they passed the eighth grade.[7] The legislature claimed it “had seen the baneful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land. The result of that condition was found to be inimical to our own safety.” [8] Meyer, a teacher at Zion Parochial School, read to the class using a German Bible as a text for both instructional and religious purposes and was prosecuted under this statute. Thus in Meyer v. Nebraska, the Court faced a rather unpopular dilemma: allow states, under their police powers, to regulate curriculum in private schools, or invalidate a popular state law in the absence of a specific constitutional provision which prohibits such a regulatory intrusion. Turning to its previous decision in Lochner, the Court applied the recently expanded Fourteenth Amendment and firmly established the right of privacy doctrine so frequently applied in cases concerning individual rights cases. Speaking for the majority, Justice McReynolds reasoned that:

Without doubt, [the Fourteenth Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.[9]

Although these education-oriented cases resemble other Lochner-era cases in analytic form, in content they remain closer to modern privacy case law in that they go beyond the original meaning of the 5th and 14th Amendments and imply, if not create, a non-economic individual rights heretofore unknown to American citizens in any codifiable way.[10] Through this case-law foundation, the Court was able to build on the liberty interest reasoning that developed in these early 1900s cases.

In between Lochner and the turbulent era of the 1960s, the Supreme Court further developed the idea that individuals had certain, fundamental, (non-procedural), rights that emanated from the newly expanded Due Process Clauses. These “rights” relied upon the earlier educational cases like Myers, and centered on the idea that individuals have certain zones of privacy. By the 1960s, the Court even conformed criminal law to the newly minted privacy rights—before Katz v. United States, the Court had consistently maintained privacy as a place-oriented and property-based right relaying on the popular aphorism “a man’s home is his castle.”[11] However, in Katz, the Court reshaped the 4th Amendment’s protection against warrantless searches declaring that the Constitution protects “people, not places.”[12]

Just like the rest of the country with the sexual revolution, the emergence of the Civil Rights Movement, and the feminist empowerment trend the Court was changing. In the 1965 case Griswold v. Connecticut, the Court in a five-four decision struck down a law that criminalized the use of contraceptives asserting the martial right of privacy thus overturning a 1961 decision, which upheld a similar law.[13] In this decision, Justice Douglas attempted to connect the unenumerated privacy right, however tenuously, to those specifically detailed in the Bill of Rights:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by the emanations from those guarantees that help give them life and substance . . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, or certain rights, shall not be construed to deny or disparage others retained by the people.[14]

In Eisenstaedt, a case with facts the Court saw as similar to Griswold, Justice Brennan, writing for the majority, retracted the Court’s previous relationship-oriented limitations on privacy insisting: “If the right of privacy means anything, it is the right of the individual, single or married, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”[15] However, unlike Griswold, the Court’s majority in Eisenstaedt failed to make a distinction between married couple’s right to make reproductive choices and an individual’s choice to use contraceptives. Whereas the Court in Griswold focused upon the privacy rights of a married couple and the idea that the state should not interfere in a couple’s most intimate details, the Court found that there was no rational basis for a state law restricting non-married individuals from using contraception. The Court in Eisenstaedt seemed to overlook their own reasoning for protecting marital choices concerning procreation as Justice Douglas demonstrated in his opinion by asking rhetorically: "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."[16] In fact, the Court in Eisenstaedt stated that the marital couple is not an independent entity with a single mind or heart, but that it is, instead, two separate individuals with separate emotions and intellects; therefore, the law could recognize an individual’s right to choose contraceptive methods.[17]

With Eisenstaedt, the Court foreshadowed what would become one of the most controversial cases of all time¾ Roe v. Wade and the conjoining case Doe v. Bolton. Infamous for legalizing abortion, these 1973 decisions codified the right to privacy by implicitly stating its fundamental nature, one that could be limited only by a compelling state interest. While acknowledging the situation surrounding abortion rights constitutes an “inherently different [situation] from marital intimacy,” the Court relied on its earlier assertion that “certain areas or zones of privacy . . . exist under the Constitution.”[18] Though again the justices refused to pin down exactly where these rights could be found; they relied upon Justice Douglas’ earlier reasoning in Griswold, declaring that the right could be derived from the “penumbras” of the 1st, 4th, 5th, and 9thAmendments, if not more explicitly in the 14th Amendment’s “liberty” clause.[19] Thus, while the Court used its previous substantive due process reasoning from Griswold, a case that upheld a marital privacy right, Roe is more closely analogous to Eisenstaedt because in all reality the Court grounded its decision in the right of an individual, or a woman to choose what she does with her own body. The preeminence of individual rights in the Court’s jurisprudence is even more salient in the more recent case concerning abortion—Planned Parenthood v. Casey. In Casey, the Court found that Pennsylvania’s regulations requiring women seeking abortions to get informed consent and wait twenty-four hour prior to receiving an abortion were not unduly burdensome on a woman’s fundamental right to choose an abortion, but that the regulation requiring spousal notification created an undue burden and was thus unconstitutional.[20]

Thus, in a few short years, the Supreme Court changed the meaning of the 5th and 14th Amendments creating substantive due process and realms of protection for individuals upon which the government cannot intrude—like abortion. The problem with substantive due process, is that it gives the judiciary, the only non-elected branch of government, the unqualified right to decide what substantive rights are under the Due Process Clauses and how extensive that protection will be. Once the Court decides a right is fundamental, it becomes part of constitutional law and cannot be changed by an act of Congress, short of a constitutional amendment. In addition, the process the Court uses to determine what fundamental rights are is amorphous. The Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead, the Court claims that these fundamental rights are rooted in the Liberty Clause of the 14th Amendment. The second problem with substantive due process is that once the Court determines what a fundamental right is, it can use the power of judicial review to enforce these rights by reviewing all state and federal legislation to ensure compliance. For example, even though a number of state legislatures in the 1980s and 1990s passed restrictions on abortion processes to protect the health of the mother and unborn life, the Court struck down many of the statues because they interfered with a woman’s liberty interest or right of privacy.[21]

The substantive due process doctrine began in the realm of privacy, as protection for the family and parent’s rights in how they raise their children and make decisions concerning procreation. In the last few decades this same doctrine has been used more often to justify the elevation of individual rights over family and state interests. For example, as discussed above, the Casey decision denied a husband or father’s right to even know that his wife is pregnant and seeking an abortion, and a state’s interest in protecting life is still restricted to time until viability.

In fairness, not every Supreme Court decision concerning substantive due rights has destroyed the rights of families. In Moore v. City of East Cleveland, the Court struck down a local zoning law requiring all members of a dwelling to be members of an immediate family (e.g., grandparents could not live with grandchildren of different parents).[22] The Court, in 2000, protected the rights of parents in Troxel v. Granville by striking down a Washington statute that permitted any person to petition for visitation rights at any time and authorized state superior courts to grant such rights whenever the visitation would serve a child's best interest.[23] The mother, Granville, opposed the amount of visitation time sought by the Troxels, grandparents of her children. The Justices, in explaining their opinion, discussed the rights of parents to make decisions concerning the “care, custody, and control of their children” as a fundamental liberty interest."[24] The Justices recognized that the Court, historically, recognized broad rights and protection for the relationship between parent and child, and it is presumed that parents will act in the best interests of their children.[25] As such, the Court found that the Washington statute would deprive fit parents of their substantive due process right to raise their children and make important parenting decisions by requiring them to prove that visitation was not in the children’s best interest.[26] While these decisions provide hope, favorable family law decisions at the Supreme Court level remain few and far between, and the power the Court wielding in deciding such issues continues to threaten family restoration.

In conclusion, substantive due process has become a dangerous tool in the hands of nine Supreme Court justices who have used it to take highly political social issues outside of the public forum and beyond the reach of elected representatives. Today, matters concerning abortion, homosexual rights, and right to die issues have all reached the Court. Increasingly, both liberal and conservative groups alike have learned that getting a ruling in their favor at the Supreme Court allows them to circumvent legislative processes and change the supreme law of the land. So perhaps Robert Yates writing as Brutus in the Anti-Federalist Papers was correct when he predicted that the Supreme Court would be a source of almost unlimited federal power.[27] Nevertheless, the strengthening of communities and families can be achieved by everyday practices. Despite the harm substantive due process has done to our society, understanding the issues facing families and knowing legal rights can facilitate family reconciliation.

1 Bryan Garner, Black's Law Dictionary, 9th Ed.

2Ralph A. Rossum and G. Alan Tarr, American Constitutional Law 119 (7th ed., California: Thomson Wadsworth, 2007).

3John Harrison, Substantive Due Process and the Constitutional Text, 83 Va. L. Rev. 493, 493 (1997).

4Lochner v. New York, 198 U.S. 45 (1905).

5Meyer v. State of Nebraska, 262 U.S. 390 (1923).

6Harrison, supra note 3 at 495.

7 Id.

8 Jed Rubenfeld, The Right of Privacy, 102 Harv. L. Rev. 739, 743 (1989).

9 Meyer v. State of Nebraska, 262 U.S. 390, 399 (1923).

10 Id.

11 See generally Olmstead v. United States, 277 U.S. 438 (1927). See

12 Katz v. United States, 389 U.S. 347, 361 (1967).

[13] See also Poe v. Ullman, 367 U.S. 497 (1961).

[14] Griswold v. Connecticut, 381 U.S. 479 (1965) (internal quotation marks omitted).

[15] Eisenstaedt v. Baird, 405 U.S. 438, 453 (1972).

[16] Griswold, 381 U.S. at 486.

[17] Eisenstaedt, 405 U.S. at 453.

[18] Roe v. Wade, 410 U.S. 113 (1973).

[19] Id.

[20] Mary Helen Wimberly, Rethinking the Substantive Due Process Right to Privacy: Grounding Privacy in the Fourth Amendment, 60:1 Van. L. Rev. 283, 301 (2007).

[21] See Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992).

[22] Moore v. City of East Cleveland, 431 U.S. 494 (1977).

[23] Troxel v. Granville, 530 U.S. 57 (2000).

[24] Id. at 66.

[25] Id. at 66-67.

[26] Id. at 65-67.

[27] THE COMPLETE ANTI-FEDERALIST (Herbert J. Storing ed., 1981).


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