Mastering the Bar Exam: Constitutional Law - Due Process (Session Six)

Substantive Due Process.

Definition and Development.

Substantive Due Process is the doctrine that the Due Process Clauses of the Fifth and Fourteenth Amendments do more than ensure fair procedures; they also protect certain fundamental rights from government interference, regardless of the procedural protections in place. This doctrine emerged as a means to safeguard individual liberties against majority rule and government overreach.

Early Interpretation.

Initially, the Supreme Court used substantive due process to protect economic rights, as in Lochner v New York (1905), where the Court struck down a state labor law on the grounds that it interfered with the freedom of contract, a fundamental right. However, this approach was controversial and led to accusations of judicial overreach.

Shift to Personal Liberties.

In the mid-20th century, the focus of substantive due process shifted from economic rights to personal liberties. Landmark cases like Griswold v Connecticut (1965) and Roe v Wade (1973) extended its application to privacy rights and reproductive autonomy, establishing that certain personal decisions are beyond the reach of governmental intrusion.

Contemporary Issues.

Substantive due process remains a dynamic area of constitutional law, dealing with issues ranging from family relations to sexual autonomy and bodily integrity. Its boundaries and applications are regularly tested in courts, reflecting changing societal values and norms.

Procedural Due Process.

Framework.

Procedural Due Process, grounded in the same constitutional provisions as substantive due process, focuses on the process required by the government before depriving a person of life, liberty, or property. It ensures fair procedures and safeguards against arbitrary government action.

Life, Liberty, and Property Interests.

The Supreme Court has interpreted these interests broadly. Life is the most straightforward, while liberty encompasses a range of personal freedoms, from physical freedom to fundamental rights like parental rights and freedom from unjustified reputational harm. Property interests go beyond physical possessions to include legitimate claims or entitlements, like government benefits.

Required Procedures.

The procedures required by due process vary depending on the situation but generally include notice, the opportunity to be heard, and a fair and impartial decision-making process. The landmark case Matthews v Eldridge (1976) established a balancing test to determine the specific procedural safeguards required in a given case, weighing the private interest, the risk of erroneous deprivation, and the government's interest.

Governmental Obligations.

Procedural due process imposes significant obligations on the government, particularly in the criminal justice system. It requires fair and timely trials, impartial judges, and the opportunity for defendants to confront witnesses and present evidence.

Economic Rights and Regulation.

Historical Context.

In the late 19th and early 20th centuries, the Supreme Court often used substantive due process to protect economic rights, like property rights and the freedom of contract. This era, known as the Lochner era, saw the Court striking down various state and federal regulations that interfered with these rights.

Shift in Judicial Perspective.

The Great Depression and the New Deal era marked a shift in the Court’s approach. Cases like West Coast Hotel Company v Parrish (1937) signaled the end of the Lochner era, as the Court upheld state labor regulations, acknowledging the government's role in addressing economic inequalities and public welfare.

Modern View.

Today, the Court is generally deferential to government economic regulation, applying rational basis review in most cases. This deferential approach allows for a wide range of government interventions in the economy, from labor standards to environmental regulations, reflecting a recognition of the government's role in managing complex modern

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