Due Process

Substantive Due Process

The approach courts use to evaluate whether the Substantive Due Process Clause is violated depends on whether an alleged violation is a result of a legislative act or an executive action, such as a specific action of a government official. When a legislative act is alleged to be in violation of substantive due process rights, courts first determine if a life, liberty, or property interest is involved under the Substantive Due Process Clause. Substantive due process analysis then requires courts to determine if the life, liberty, or property interest in question is a fundamental right. The U.S. Supreme Court has recognized certain rights as fundamental; the test for determining if a right is fundamental is whether the right is explicitly or implicitly guaranteed by the federal Constitution. Examples of fundamental rights include the right to free speech, the right to privacy, the right to vote, the right to procreate, and the right to interstate travel; the right to education is not a fundamental right. Once the court determines that a fundamental right is involved, it reviews the legislative act using the strict scrutiny standard of review, described below. If a fundamental right is not involved, then a court reviews a legislative act using the rational basis standard of review, also described below.

When an executive action or a specific act of a government official is alleged to be in violation of substantive due process rights, courts first determine if a life, liberty, or property interest is involved under the Substantive Due Process Clause. If so, substantive due process analysis then requires courts to determine if the executive action “shocks the conscience.”

According to the Supreme Court, liberty interests include not only freedom from bodily restraint but also the right to contract and to enjoy the privileges traditionally recognized as important to the orderly pursuit of happiness. Property interest is defined as a right created by contract or statute. By way of illustration, when a state statutorily grants the right to vote for local school boards to its residents, a property interest is statutorily created. Likewise, when a school district contracts with a teacher for employment, the school district has created in such a teacher a property right to the job for the term of the contract, unless the terms of the contract state otherwise.

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