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Substantive Due Process

Last Updated: 2006

The concept of due process of law traces its lineage back at least to the eleventh century, but had it most prominent manifestation in chapter 39 of the Magna Carta of 1215:

No freeman shall be arrested, imprisoned or deprived of his freehold, or in anyway molested; and we will not proceed against him or prosecute him, unless by the lawful judgment of his peers and by the law of the land.

The Magna Carta was confirmed a number of times by succeeding sovereigns. In one of these confirmations (1354), the phrase “due process of law” replaced “law of the land.” In the seventeenth century, English jurist and commentator Sir Edward Coke identified the phrase “law of the land” with due process of law, and the phrases have been used synonymously ever since.

American state constitutions, adopted between 1776 and 1787, contained the language or the idea of due process. The Northwest Ordinance of 1787 prohibited the government from depriving any “man . . . of his liberty or property, but by the judgment of his peers or the law of the land.” The same idea would be embodied in the Fifth Amendment, which says, in part, that “no person shall be . . . deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, borrowing the phraseology but not the context of the Fifth Amendment, applied due process limitations to the states. The courts have held these two clauses to be identical in meaning. Today all but a few of the state constitutions contain the language of due process. Those constitutions that do not contain such language have had that protection read into them by their respective supreme courts. New Jersey’s Supreme Court, for example, has interpreted the inalienable rights clause (Article I, Section 1) of the state constitution to provide both substantive and procedural due process protection.


Procedural due process attempts to ensure that one’s life liberty or property is not taken without the process or procedures due according to the law of the land, that is, the Constitution and statutory law. It requires that the game be played fairly. Substantive due process is concerned with establishing substantive limits on the state’s power to interfere with one’s life, liberty, or property. It empowers the courts to protect property rights or personal liberties in the absence of constitutional provisions explicitly protecting those freedoms.


Due process of law appears to have always had both a substantive as well as a procedural aspect. Various scholars have noted the substantive dimension of chapter 39 of the Magna Carta. The chapter came to be seen as both a substantive restraint on the Crown’s arbitrary exercise of power and a guarantee of fair judicial process. Sir Edward Coke spoke of monopolies as being against the great charter because they were against the liberty and freedom of the subject, and against the law of the land. Coke understood the Magna Carta as forbidding arbitrary and unreasonable actions and as protecting “the freedoms that men have.” Eighteenth-century colonists thus brought with them notions of substantive due process encompassing protection against expropriation by public conversion and protection against monopoly by public or private grant. They also appealed to natural rights/natural law and social contract principles to justify limits on government power over the individual. Coke’s decision in Dr Bonham’s Case (1610), voiding an act of Parliament as being “against common right and reason,” was fused by American colonists with notions of natural justice. These ideas would feed the judiciary’s understandings of substantive due process in the nineteenth century.

This tradition of protecting private property and liberty of trade was reinforced in the United States, where the sanctity of private property was a central feature of the political and social order. Indeed, the protection of property and the application of the notion of natural rights are the major American contributions to the due process tradition.

James Madison explicitly connected property to the liberties protected by due process when he wrote that it was not a just government where the property of a man “is violated by arbitrary seizures of one class of citizens for the service of the rest . . . nor is property secure . . . where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties and free choice of their occupations” (Madison 1987, 598). The Contract Clause (Article I, Section 10) and the Just Compensation Clause (Fifth Amendment) of the national Constitution, and state constitutional provisions prohibiting monopolies and protecting private property, provided the legal basis for developments in the nineteenth century.


Some judges began applying the notion that due process imposed substantive limitations on government. They did so initially on the basis of a natural rights philosophy. Justice Samuel Chase’s dictum in Calder v. Bull (1798) spoke of a social compact that limited the exercise of legislative power, and stated that the basis for that social compact was the protection of personal liberty and private property. In Corfield v. Coryell (1823), Justice Bushrod Washington posited certain fundamental principles or rights grounded on the Privileges and Immunities Clause that were quite similar to those associated with substantive due process, including the enjoyment of life and liberty, the right to acquire and possess property of every kind, and the right to pursue and obtain happiness and safety. Justice Roger Taney in Bloomer v. McQuewan (1852) commented that a special act of Congress depriving persons of the right to use their property “could not be regarded as due process of law.” In Murray’s Lessee v. Hoboken Land and Improvement Company (1856), the Court wrote that it was not left to the legislative power “to enact any process which might be devised. The article is a restraint on the legislative as well as the executive and judicial powers of the government and cannot be construed as to leave congress free to make any process ‘due process of law’ by its mere will.” Murray’s Lessee concerned Congress’s authority to regulate procedures affecting property, but did not answer the question as to whether the Due Process Clause would similarly restrain congressional power to limit liberty or property in the name of the public good. A year later in Dred Scott v. Sandford (1857), Justice Taney used the Due Process Clause to strike down the Missouri Compromise. Though fatally flawed in its assumption that the Negro was property and not a person, Dred Scott demonstrates that some jurists viewed the Due Process Clause as a substantive limit on congressional power.

The first flowering of substantive due process occurred at the state level, though there was no clear or consistent doctrinal development. State courts struggled as they interpreted their law of the land and due process provisions. The rejection of the Whig doctrine of legislative supremacy embodied in the first state constitutions provided the constitutional grounding for what would follow. The Supreme Court of New York in Taylor v. Porter & Ford(1843) anticipated the argument in Murray’s Lessee:

Under our form of government the legislature is not supreme, it is only one of the organs of that absolute sovereignty which resides in the whole body of the people. The words “by law of the land” as is here used do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory and turn this part of the constitution into mere nonsense. The people would be made to say to the two Houses: “You shall be vested with the ‘legislative power of the state;’ but no one ‘shall be disenfranchised or deprived of any of the rights or privileges’ of a citizen unless you pass a statute for that purpose;” in other words “You shall not do wrong, unless you choose to do it.”

In a series of cases between 1843 and 1856 culminating in Wynehamer v. New York (1856), New York’s highest court interpreted the due process clause of the state constitution as a limitation on the power of the legislature to deprive persons of vested property rights.

Prominent jurists and scholars produced treatises reinforcing the notion of substantive due process, including James Kent, Commentaries on American Law (1826); Joseph Story, Commentaries on the Constitution (1833); and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States (1868). Whatever their differences—Cooley, for example, was much more explicit in connecting due process with the protection of property rights—all shared a commitment to protecting property rights as a basis for ordered liberty and economic growth. In his 1883 edition, Cooley listed as one of those rights the liberty to make contracts. Cooley’s work brought some order and coherence to the notion of substantive due process, providing authoritative guidance for state judges. It became the most cited legal treatise by state courts in the nineteenth century.

One of the ironies connected with the development of substantive due process is the fact that pre–Civil War temperance reformers, abolitionists, and politicians—not jurists—took the lead in pressing the notion of substantive due process. For instance, abolitionists argued that the Due Process Clause guaranteed slaves their liberty and protected slaves from being deprived of the property produced by their labor. Drawing on Lockean ideas of social compact and natural rights rather than the Magna Carta/Fifth Amendment tradition, they infused the clause with a substantive content and constitutionalized their natural rights arguments.


In 1868 the nation adopted the Fourteenth Amendment, which prohibited states from depriving “any person of life liberty or property, without due process of law.” The Slaughterhouse Cases (1873) were the first to give judicial construction to the Due Process Clause. Justice Samuel F. Miller claimed that no construction of the Due Process Clause would support the position of the butchers. This narrow reading of the clause was vigorously contested by the four dissenters, and their view would soon be the law of the land. Justice Stephen Field’s dissent focused on the monopolistic aspects of the legislation, hearking back to Coke’s understanding of the phrase as providing protection against monopoly by public grant.

The shift came in Davidson v. New Orleans (1878), where the Court gave support to the traditional understanding of what substantive due process was thought to prohibit, namely, expropriation by conversion. A statute that declares, without more, that title to a piece of land owned by A shall now be vested in B would deprive A of his or her property without due process of law. In the 1880’s Field’s position gradually gained ascendancy. Even when sustaining legislation, the Supreme Court asserted that it would scrutinize the purpose behind state regulation as well as the means employed to achieve the stated ends (Mugler v. Kansas 1887). By the 1890’s, the Supreme Court was using the Due Process Clause to judge the substantive rationality of laws that infringed on liberties it deemed fundamental. These included the right to make contracts, pursue a trade, and establish conditions of employment. Most prominent in this respect was the development of the liberty of contract. In Allgeyer v. Louisiana (1897), the Court held that the Due Process Clause encompassed the right to enter into all contracts in pursuit of an occupation or the acquisition of property. Protection of freedom of contract under the Due Process Clause reached its zenith in Lochner v. New York (1905), wherein a law limiting the hours of work in the baking trade was declared an interference with liberty of contract. Though harshly criticized by Justice Oliver Wendell Holmes and others for reading into the Constitution a laissez-faire economic philosophy derived from Adam Smith and Herbert Spencer, Lochner’s substantive due process liberty of contract formulation would provide the rationale for invalidating social and economic regulations over the next thirty years. Examination of the Court’s treatment of social and economic regulation during the period in question indicates that the Court was, by and large, receptive to laws concerned with health, safety, and public morals. The actual number of legislative enactments struck down between 1897 and 1937 as violative of property rights under substantive due process was relatively small—by one estimate, 110. On the other hand, constitutional scholar Charles Warren noted that over 500 cases challenged under due process or equal protection were upheld by the justices. Commentators who supported the idea of substantive due process as an antiexpropriation and antimonopoly doctrine viewed the inclusion of liberty of contract in substantive due process as a perversion of its traditional meaning and substantive content.


In the 1930’s, under the cloud of a depression, threatened by Roosevelt’s attempts to enlarge its membership, subject to intense criticism from dissenters on the Court and scholars and commentators off the Court, and with a substantial majority of the country supporting more vigorous action, the Court found itself politically isolated and internally divided. Not surprisingly, the Court began to reconsider its use of substantive due process. This reconsideration was accelerated by the addition between 1937 and 1940 of three Roosevelt appointments. Those personnel changes solidified a majority for the New Deal legislative program.

Nebbia v. New York (1934) and West Coast Hotel Company v. Parrish (1937) in effect repudiated the liberty of contract doctrine and signaled the end of economic due process as a constitutional norm. However, neither Nebbia nor West Coast Hotel rejected the notion of substantive due process. Instead the Court adopted a minimal scrutiny test for economic legislation, namely, that such legislation shall not be unreasonable, arbitrary, or capricious and that the means selected have a real and substantial relation to the stated objectives. The following year, in United States v. Carolene Products (1938), the Court reduced its scrutiny even further: in the absence of a rationale for the legislation, the existence of facts supporting the legislative judgment will be presumed. The abdication of any meaningful review under substantive due process claims was made explicit in Day-Brite Lighting Inc. v. Missouri (1952). Henceforth the Court would employ a bifurcated review process: when fundamental or preferred freedoms are involved, strict scrutiny of the legislation would be undertaken; when nonfundamental interests—for example, property rights—were involved, rationality was all that would be required.

A very different response to the attacks on economic substantive due process occurred among state high courts. Substantive due process had its judicial birth in the United States in state courts, and that doctrine maintained its viability. State high courts continued to rely on their due process and equal protection clauses—often in combination—to provide greater protection for economic rights than would be forthcoming from the federal judiciary. Thirty-five states have refused to follow the lead of the Supreme Court in relaxing review of economic regulation.


Between 1897 and 1970, the Supreme Court gradually included among the liberties protected by the Fourteenth Amendment most of the provisions of the Bill of Rights, significantly expanding the substantive context of that clause. It was now necessary to speak of substantive due process in regulating economic affairs and substantive due process concerning personal liberties, with claims under the former receiving minimal judicial scrutiny and claims under the later receiving strict scrutiny.

Moreover, in Meyer v. Nebraska (1923), the Court held that there were fundamental liberties found in the Due Process Clause that were not derived from the specific provisions of the Bill of Rights. In upholding the right of teachers to teach a foreign language, Justice James McReynolds gave broad scope to the liberty protected by the Due Process Clause. He mentioned the liberty of individuals to contract, engage in the common occupations, acquire useful knowledge, marry, establish a home, bring up children, and “generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” Pierce v. Society of Sisters (1925) employed similar rhetoric in striking down a state requirement that all students must attend public schools. Meyers and Pierce are the forerunners of, if not the foundation for, the liberty and privacy decisions of the Supreme Court in the last third of the twentieth century.

Building on Meyer and Pierce, the Court began its expansion of the liberties protected by under the Due Process Clause, initially establishing a right to privacy (Griswold v. Connecticut 1965), followed by a right to an abortion (Roe v. Wade 1973). In 1992, the Court summed up the liberties then encompassed by due process in Planned Parenthood v. Casey. They included marriage, procreation, contraception, family relationships, child rearing, and education. It went on to speak more abstractly of the basis for what would be included in the liberties protected by the Due Process Clause, saying that “those choices that are central to a person’s dignity and autonomy are central to the liberty protected by the Fourteenth Amendment.” Chief Justice William Rehnquist offered what appears to be a less expansive view of substantive due process in Washington v. Glucksberg (1997), writing that “the Due Process clause specially protects those fundamental rights and liberties which are objectively, ‘deeply rooted in this Nation’s history and tradition’ [and] ‘implicit in the concept of ordered liberty.’ ”

In Lawrence v. Texas (2003), the Court affirmed the more expansive view expressed in Casey when it declared unconstitutional a Texas statute making sexual relations between members of the same sex illegal. Such a statute was an intrusion on one of those choices that are central to personal dignity and autonomy.

The notion of substantive due process has been vilified as a contradiction in terms, labeled a “shadowy concept,” and called a “remarkable invention of the judiciary,” but a review of the history of the concept suggests that it is not some reactionary judicial aberration that we can or should forget. It has been a significant part of American constitutional law for over 100 years, protecting property rights, providing the vehicle for incorporating and applying provisions of the Bill of Rights to the states, and protecting substantive rights such as privacy and personal autonomy not mentioned explicitly in the document.

SEE ALSO: Contract ClauseCorfield v. CoryellDred Scott v. SandfordFourteenth AmendmentGriswold v. ConnecticutLochner v. New YorkNew State Ice Company v. LiebmannPrivileges and Immunities Clause: Article IVRoe v. WadeSlaughterhouse CasesState ConstitutionsWashington v. GlucksbergWest Coast Hotel v. Parrish


Thomas M. Cooley, A Treatise on the Constitutional Limitations: Which Rest Upon the Legislative Power of the States of the American Union(Boston: Little, Brown, and Co., 1883); James Kent, Commentaries on American Law, 2nd ed. (New York: O. Halsted, 1832); Charles A. Miller, “The Forest of Due Process of Law: The American Constitutional Tradition,” in Due Process, Nomos XVIII, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1977), 3–68; James Madison “Property” (March 29, 1792), in The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 1, 598–99; John V. Orth, Due Process of Law: A Brief History(Lawrence: University Press of Kansas, 2003); Joseph Story, Commentaries on the Constitution of the United States, 3 vols. (Boston: Hillard, Gray and Company, 1833); Frank R. Strong, Substantive Due Process of Law: A Dichotomy of Sense and Nonsense (Durham, NC: Carolina Academic Press, 1986); and G. Edward White, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), ch. 8, “The Myths of Substantive Due Process,” 241–68.