Sample Research Paper On Substantive Due Process

Type of paper: Research Paper

Topic: Law, Criminal Justice, Court, Crime, Clause, Constitution, Amendment, Democracy

Pages: 7

Words: 1925

Published: 2020/12/08

The general concept of due process states that neither federal government nor state governments shall arbitrarily or unfairly (illegally) deprive any person of his fundamental constitutional rights and freedoms (Ely Jr, 2003). The idea that citizens cannot be subjected to the unlawful deprivations of their basic rights by the executive or judicial powers dates back to the provisions of Magna Carta. This act guaranteed that “no free man shall be imprisoned except by the lawful judgment of his peers or by the law of the land”(The Text of Magna Carta, 1215). Naturally, the following rule has had a great impact on the constitutional concept of due process. Moreover, the term “law of the land” became a direct equivalent and transformed into the term “due process of law” which is now used in Constitution, statutes and court decisions. By the seventeenth century, the legal scholars had shaped the modern interpretation of the due process concept, noting that the traditional concept of “the law of the land” implies that the powers of government are limited by the procedural, as well as substantive rules established by the legislature (Ely Jr, 2003). This notion later gave rise to the well-known dichotomy of Due Process Clause into a so-called substantive due process and procedural due process. The following distinction is based on a more broad differentiation between two types of law: substantive law, which deals with substantive or fundamental rights and freedoms such as those enumerated in the Bill of Rights, and the procedural law that enforces substantive rights and provides for a fair and unprejudiced adjudication procedure. The latter may include such rights as the right for a jury trial, the right to present witnesses and testimony, the right to an attorney, etc. (Ely Jr, 2003).
Nevertheless, it is the decisions of the Supreme Court, not the commentaries of legal scholars that sanctioned the introduction of the substantive due process that is distinctly separated from the procedural due process. In Allgeyer v. Louisiana (1897), the Court for the first time expanded the Due Process Clause to substantive matters. The Court invalidated Louisiana statute that was deemed to limit the freedom of contracts on the grounds that the statute violated the “liberty” in the meaning of the Due Process Clause (Allgeyer v. Louisiana, 1897). In Lochner v. New York (1905), the Court invalidated the statute that prohibited workers to be on the job for more than 10 hours a day as this clause violated the freedom of the contract between the employer and the employee which, in turn, violates the liberty protected by the Due Process Clause. In the following cases, the Court determined that the law prescribing minimum wage violates Due Process Clause (Adkins v. Children's Hospital of D.C. (1923)) and even extended the protection of the clause to the rights not included into the Constitution to include, the rights of parents to control the education of their children (Pierce v. Society of Sisters (1925)).
In the 1960s, the Court continued the tendency of broad interpretation of substantive due process in order to include within its protection rights and freedoms not mentioned in the Constitution. According to the Court`s view, even though there are rights and freedoms not enumerated in the Constitution, they still must be addressed by the Court due to the fact that they derive from the rights included in the Constitution (Ely Jr, 2003). For example, it has been held that the right of privacy derives from the First, Fourth and Ninth Amendments. In Griswold v. Connecticut, (1965), the Court held that no state law can make it a crime to use contraceptives, and any such law violates the right of privacy enjoyed by a married couple. The Court deduced a right of privacy from a number of amendments enumerated in the Bill of Rights, including First Amendment that, according to the Court, indirectly creates a freedom of association, or the Ninth Amendment stating that no constitutional right can be construed so as to deny other rights retained by the people (White, 2000). In Roe v. Wade (1973), the Court held that the state may not infringe the right of a woman to make an abortion within the first trimester. The Court invoked the Due Process Clause that protects the right for privacy (which exists by virtue of enumerated amendments), which includes a woman`s right to terminate her pregnancy.
The Court used the same logic in a number of cases concerning specific rights that, in the view of justices, are protected by the Due Process Clause. In Loving v. Virginia (1967), the Court confirmed the right of persons representing different races to marry. In Connor v. Donaldson (1975), the Court held that the due process is violated if a state confines a non-dangerous, mentally ill person who is capable to take care of himself. In BMW of North America, Inc. v. Gore (1996), the Court found that excessive punitive damages violate substantive due process.
The substantive due process has long been subject of criticism by justices and legal scholars. Robert H. Bork notes that due process clause applies only to the matters of procedure, not the substantive rights enumerated in the Bill of Rights or somehow implied in the Constitution (Goldford, 2005) Justice Antonin Scalia pointed at the inconsistent choice of the rights that receive the protection of substantive due process. In his view, during this “discovery” of new rights and freedoms, the Court has abandoned the text of the Constitution, as well as its historical context (Ely, 2003).
As can be seen from the previous cases, the majority of Supreme Court Justices held the view that the concept of due process implies not merely procedural guarantees. Due Process Clause also includes the possibility of protection of substantial rights, particularly those enumerated in the Bill of Rights. Justice Hugo Black, on the other hand, was one of the few opponents of substantive due process. In his view, the interpretation of due process clause accepted by the majority of justices was extremely broad (IN RE WINSHIP , 397 U.S. 358 (1970)).The substantive due process encroached on the authority of legislature to exercise its judgment in the adoption of laws and left the fate of those laws in the hands of the Court (Griswold v. Connecticut, 1965). In his view, what due process meant was that a person has an indispensable right to be tried according to the procedural standards of the Bill of Rights and nothing more. (IN RE WINSHIP , 397 U.S. 358 (1970))

Procedural due process

While the problem of substantive due process is a subject of constant debates among legal scholars, legislators and justices, there is a general agreement on the “procedural” aspect of Due Process Clause. Nonetheless, the primary purpose of this clause is to ensure that states follow due process when it comes to any actions that leads to the deprivation of life, liberty, or property. The following clause is aimed to limit any exercise of power by the state or federal authorities that violate fundamental rights of citizens by creating certain standards that must be followed during criminal, civil or administrative procedures. The Bill of Rights, for the most part, enumerates a number of “due” procedures that must be followed during criminal proceedings. Such rights and freedoms, as freedom from double jeopardy, from unreasonable searches and seizures, from self-incrimination, the right to a speedy and public trial by an impartial judge, the right to a witness cross-examination, have been affirmed by the Supreme Court. For example, in a landmark case Gideon vs. Wainwright (1963), the Court held that the Sixth Amendment right to have an attorney in all criminal prosecutions is applied to states through the Due Process Clause of the Fourteenth Amendment.

Justice`s Black and Frankfurter views on incorporation doctrine.

Despite the fact that by the end of 20th century practically all of the amendments had been applied to the states by virtue of the incorporation doctrine, not all of the Supreme Court justices supported the tendency of complete incorporation. Justice Felix Frankfurter supported the approach known as a selective incorporation. According to his view, the incorporation of the Bill of Rights should not be a one-time act but rather a gradual and moderate process. (Grabber, 2007) As he wrote in Ronchin v. California (1952), only those provisions of Bill of Rights whose abridgment would “shock the conscience” need to be incorporated against the states. Justice also considered the due process approach to the problem of incorporation. According to this view, the rights enumerated in the Constitution will be incorporated only if it fits within the definition of the due process which, of course, may change over time (Ronchin v. California (1952)).
On the other hand, Justice Hugo Black considered that the Bill of Rights should be entirely applicable to the states. In his view, the Fourteenth Amendment incorporated the Bill of Rights against the states by virtue of the clause which provided that no state shall make laws that abridge the privileges or immunities of American citizens, where “privileges and immunities” refer to the first eight amendments enumerated in the Bill of Rights (Bell, 2006) In Adamson v. California (1947), he expressed this view for the first time, noting in his dissent that drafters of the Fourteenth Amendment clearly intended that the Bill of Rights must be applied to the states. Even though the Court did not accept this view at once, the cases decided in the following decades incorporated practically all of the amendments to the Constitution and made them binding for the states.


As we can see, the due process clause of the Fifth and Fourteenth Amendments has been one of the most contested sections of the Constitution. Since the ratification of the Fourteenth amendment, questions arose as to the exact meaning and scope of the Due Process Clause. Over the decades, the Supreme Court justices made a significant contribution to further development of the due process concept which reflected in numerous decisions that interpreted, as well as applied the Clause to the specific cases. The broad interpretation of the Clause implied that “due process of law” includes not only the obligation to follow procedural guarantees of the Constitution, but also the need to protect substantive rights enumerated in the Constitution. A so called substantive due process approach became prevalent in the Court`s decisions during the 20th century. However, not all justices supported this approach, arguing that protection of substantive rights is not implied in the Due Process Clause, and that such broad interpretation of the clause leads to the limitation of powers of the legislative. In this regard, the conflicting views of justices Black and Frankfurter are illustrative of this contradiction. The substantive due process is strongly connected with the incorporation doctrine. The views of justices on this matter also differed. However, those views have been reconciled by the unification of selective incorporation and full incorporation doctrines which is evident from the fact, that by now, practically all of the “substantive” amendments have been incorporated against the states by virtue of the Fourteenth Amendment.


Bell, H. (2006), Hugo L. Black: Cold Steel Warrior. Oxford University Press.
Dennis J. Goldford (2005). The American Constitution and the Debate Over Originalism. Cambridge University Press.
Grabber, M (2007), False Modesty.Felix Frankfurter and the Tradition of Judicial Restraint, Retrieved from
Ely, J. W. Jr, (2003). Due Process Clause, Retrieved from!/amendments/14/essays/170/due-process-clause
The Text of Magna Carta, Retrieved from
White, G. Edward (2000). The Constitution and the New Deal. Cambridge, MA: Harvard University Press.
Adamson v. California, 332 U.S. 46 (1947)
Adkins v. Children's Hospital, 261 U.S. 525 (1923)
Allgeyer v. Louisiana, 165 U.S. 578 (1897)
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Griswold v. Connecticut, 381 U.S. 479 (1965)
IN RE WINSHIP , 397 U.S. 358 (1970)
Lochner v. New York, 198 U.S. 45 (1905)
Loving v. Virginia, 388 U.S. 1 (1967)
O'Connor v. Donaldson, 422 U.S. 563 (1975)
Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)
Roe v. Wade, 410 U.S. 113 (1973)
Rochin v. California, 342 U.S. 165 (1952)

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