Substantive Due Process Under the Fifth Amendment

The Fifth Amendment to the U.S. Constitution protects individual rights. One of its key components is substantive due process, which concerns rights that are essential to liberty. The incorporation of this doctrine safeguards certain rights against unjust government interference.

Text of the Fifth Amendment

The substantive due process doctrine is rooted in the due process clause of the Fifth Amendment. This clause states that:

"No person shall be... deprived of life, liberty, or property, without due process of law..."

The text does not explicitly distinguish between procedural and substantive due process. However, over time the Supreme Court has expanded the clause’s meaning to include both aspects.

Substantive vs. Procedural Due Process

Procedural due process and substantive due process are concepts from the Fifth Amendment. They both protect individual rights, but they do so in different ways. Substantive due process primarily focuses on what government actors can do. Procedural due process focuses on how they do it.

Procedural Due Process

Procedural due process ensures that the government follows fair steps before taking away someone's life, freedom, or property. This includes things like:

• A fair trial

• Being informed of legal actions against you

• Having a chance to present your side of the story

For example, if the government wants to take your property for a new road, they must give you notice and a chance to argue against it in court. They can’t just take away your property rights without following proper procedures.

Mathews v. Eldridge (1976) is an example of a case involving procedural due process. George Eldridge challenged the termination of his Social Security disability benefits without a prior evidentiary hearing.

The Supreme Court's decision established a three-part balancing test. The test determines what procedures the due process clause of the Fifth Amendment calls for before the government can deprive an individual of a protected interest. The courts consider three factors:

• The private interest: How important is the property or liberty being affected?

• The government’s interest: What goal is the government trying to achieve? How important is it? Would additional procedures lead to significantly higher costs?

• Risk of error: How likely is it that the government will make a mistake?

Substantive Due Process

On the other hand, substantive due process is about making sure the laws themselves are fair and just. It protects certain fundamental rights from being taken away by the government, no matter what procedures are used. This includes rights like privacy and the freedom to marry.

If a law unfairly restricts your personal freedoms, substantive due process ensures it doesn't violate your basic rights without a very good reason.

Important U.S. Supreme Court Cases on Substantive Due Process

The Fifth Amendment was ratified in 1791 as part of the Bill of Rights. It was primarily concerned with procedural fairness and calls for legal proceedings to be conducted justly.

The idea of substantive due process rights began to take shape in the 19th and 20th centuries. It developed as courts interpreted the due process clause to protect fundamental rights beyond mere procedural guarantees.

This common law evolution is highlighted by the following landmark Supreme Court cases.

Lochner v. New York

In Lochner v. New York (1905), the Supreme Court struck down a New York law that limited bakers' working hours to 10 hours per day and 60 hours per week. It ruled that the law violated the Due Process Clause of the Fourteenth Amendment.

The case established the "Lochner era." This was a period during which the Court frequently invalidated state and federal regulations because they interfered with economic liberty and the freedom of contract.

Griswold v. Connecticut

More than half a century later, the Court ruled that a state law criminalizing the use of contraceptives violated the right to marital privacy in Griswold v. Connecticut (1965).

The case established the constitutional right to privacy through the "penumbras" and "emanations" of other constitutional protections. This laid the groundwork for future cases involving privacy rights, including Roe v. Wade.

Loving v. Virginia

In Loving v. Virginia (1967,) the Court unanimously struck down state laws banning interracial marriage. The Court found that they violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The case ended all race-based legal restrictions on marriage in the United States.

Chief Justice Earl Warren wrote the unanimous opinion for the Court. His opinion emphasized American’s fundamental right to marry and the equal protection of the laws.

Roe v. Wade

In Roe v. Wade (1973), the Court ruled that a woman's right to choose to have an abortion is protected by the Fourteenth Amendment’s due process clause.

The case established a framework for abortion regulation based on the trimester system, profoundly impacting reproductive rights and sparking ongoing legal and political debates.

Justice Stewart wrote a concurring opinion emphasizing his view that the right to choose an abortion is part of the "liberty" protected by the Fifth Amendment’s due process clause.

Washington v. Glucksberg

In Washington v. Glucksberg (1997), the Supreme Court unanimously upheld Washington state's ban on physician-assisted suicide. The Court ruled that the right to assisted suicide is not a fundamental liberty protected by the Fourteenth Amendment.

The case reinforced the state's authority to regulate medical practices. It highlighted the Court's cautious approach to expanding substantive due process rights.

Obergefell v. Hodges

In 2015, the Court legalized same-sex marriage nationwide with its decision in Obergefell v. Hodges. It ensured that marriage rights could not be denied based on sexual orientation.

Justice Kennedy wrote the majority opinion. It held that same-sex couples have the fundamental right to marry under the due process and equal protection clauses of the Fourteenth Amendment.

Chief Justice John Roberts wrote a dissenting opinion. He disagreed with the majority's decision to legalize same-sex marriage nationwide. His dissent argued against the majority's interpretation of the Constitution.

Levels of Scrutiny

The Supreme Court reviews government actions such as laws passed by Congress. The Court employs different levels of scrutiny to evaluate substantive due process claims. These levels of scrutiny guide the court in invalidating unconstitutional actions. The primary levels of scrutiny are:

• Strict scrutiny

• Intermediate scrutiny

• Rational basis review

We discuss each level of scrutiny in more detail below.

Strict Scrutiny

Strict scrutiny is the most rigorous level of judicial review. The courts use it to evaluate the constitutionality of laws or government actions in specific cases.

Criteria: For a law or government action to pass strict scrutiny, it must satisfy two key criteria:

1. Compelling Government Interest: The government must show that the law or action serves a compelling interest. This means the interest must be of the utmost importance, such as national security or protecting fundamental rights.

2. Narrowly Tailored: The law or action must be narrowly tailored to achieve that compelling interest. This means it must be the least restrictive means available to achieve the goal.

Application: Strict scrutiny is applied in cases involving:

• Fundamental Rights: These include rights explicitly or implicitly protected by the Constitution. Such rights include freedom of speech, the right to vote, and the right to privacy.

• Suspect Classifications: These include classifications based on race, national origin, religion, and alienage. Laws that discriminate based on these classifications are subject to strict scrutiny.

Outcome: Strict scrutiny is rigorous. Laws and actions reviewed under this standard are often struck down as unconstitutional.

Intermediate Scrutiny

Intermediate scrutiny is a middle level of judicial review. It is less stringent than strict scrutiny, but more demanding than rational basis review.

Criteria: For a law or government action to pass intermediate scrutiny, it must meet the following criteria:

1. Important Government Interest: The government must show the law or action serves an important interest.

2. Substantially Related: The law or action must be substantially related to achieving that important interest. This means there must be a close fit between the law's objectives and the means used to achieve them. It doesn't need to be the least restrictive means.

Application: Intermediate scrutiny applies to cases involving:

• Quasi-Suspect Classifications: These include classifications based on gender and legitimacy.

• Certain Types of Speech: Certain regulations on commercial speech or symbolic speech.

Outcome: actions reviewed under intermediate scrutiny are more likely to be upheld than those under strict scrutiny. However, they are still subject to significant judicial examination.

Rational Basis Review

Rational basis review is the most lenient level of judicial review used by the courts.

Criteria: For a law or government action to pass rational basis review, it must meet the following criteria:

1. Legitimate Government Interest: The government must show that the law or action serves a legitimate interest. This is a low threshold, any reasonable governmental objective can qualify.

2. Rationally Related: The law or action must be rationally related to achieving that legitimate interest. This means there must only be a reasonable connection between the law's objectives and the means used to achieve them.

Application: Applies in cases that don't involve fundamental rights or suspect/quasi-suspect classifications.

Outcome: Because rational basis review is highly deferential to the government, most laws and actions reviewed under this standard are upheld.

The Fifth Amendment protects individual rights through substantive due process. This is essential to constitutional jurisprudence. This doctrine ensures that fundamental rights, such as privacy, marriage, and bodily integrity, are safeguarded from unjust laws and government interference.

Supreme Court decisions illustrate the judiciary's crucial role in upholding these liberties. By applying varying levels of scrutiny, the Supreme Court continues to meticulously evaluate the constitutionality of government actions.