Question

What is substantive due process and how does it differ from procedural due process?

Answer 1

Substantive due process, in United States constitutional law, is a principle that allows courts to protect certain rights deemed fundamental from government interference under the authority of the due process clauses of the Fifth and Fourteenth Amendments to the Constitution, which prohibit the federal and state governments, respectively, from depriving any person of life, liberty, or property, without due process of law.  Substantive due process demarcates the line between the acts by persons that courts hold are subject to government regulation or legislation and the acts that courts place beyond the reach of governmental interference. Whether the Fifth and/or Fourteenth Amendments were intended to serve this function continues to be a matter of scholarly as well as judicial discussion and dissent.

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 aims to protect individuals from the coercive power of government by ensuring that adjudication processes under valid laws are fair and impartial such as the right to sufficient notice, the right to an impartial arbiter, and the right to give testimony and present relevant evidence at hearings. In contrast, substantive due process aims to protect individuals against majoritarian 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, regardless of whether 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 1950,it had been mentioned twice in Supreme Court opinions. 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 towardjudicial review under the two Due Process Clauses.

Much substantive due process litigation involves legal challenges regarding unenumerated rights that seek particular outcomes instead of merely contesting procedures and their effects. In successful cases, the Supreme Court recognizes a constitutionally-based "liberty" that renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of substantive due process decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.