Substantive due process

The difficult issue is identifying fundamental rights without converting judges' preferences into constitutional law. The Court looks to text, history, tradition, precedent, and the way related principles have developed. If a liberty is fundamental, government generally must satisfy demanding review; if it is not, ordinary regulation usually survives when rationally related to a legitimate purpose. The asserted right must be described carefully enough to permit meaningful historical and precedential analysis.

Incorporation and substantive due process both use the Due Process Clause but perform different work. Incorporation applies specified Bill of Rights guarantees to state and local government. Substantive due process protects certain liberties even when no single Bill of Rights provision states the complete rule. A challenge to a city search begins with the incorporated Fourth Amendment; a direct barrier to a protected marriage begins with substantive liberty and may also implicate equal protection. Calling both claims "due process" without naming the route conceals the governing test.

Suppose government gives notice and a full hearing before enforcing a categorical prohibition on a constitutionally protected marriage. The procedure may be flawless, but the substantive burden remains. By contrast, revocation of an existing license because of a disputed factual record may be cured through reliable procedures. The likely remedy follows the defect: a new hearing can repair procedural error, while a substantively invalid rule may need to be enjoined or declared unenforceable. Procedural due process concerns how government acts; substantive due process concerns whether government may impose the deprivation even through fair procedures.

the claimed liberty. "Freedom to choose" is too abstract to connect a claim to history and precedent, while an artificially narrow description can predetermine rejection. Courts examine the concrete practice, affected relationship, tradition, and controlling cases. For CLEP purposes, ask whether the complaint concerns missing process or government power to impose the restriction at all, then state the specific liberty rather than using "privacy" as the answer.

Video lesson: Due Process of Law: Crash Course Government and Politics #28