Substantive Due Process (Update)

Substantive Due Process (Update)

Description

In the period preceding the New Deal, due process of law meant more than a guaranty of procedural regularity; it also embodied a substantive dimension that curtailed the role of the state in altering the outcomes of private marketplace decisions. This was the era of Lochner v. New York (1905), in which the Supreme Court decreed that government could intervene only to aid parties deemed in special need of paternalistic measures, such as minors and women, or to address externalities (where private bargains impose uncompensated costs on third parties). During a time of considerable social unrest, Lochnerian jurisprudence imposed sharp limits on the domain of ordinary politics while, in many quarters, also placing in question the very legitimacy of judicial review. With the onset of the Great Depression, the growing political demands on government to curb instability in markets, to reduce widespread unemployment, and to bolster consumer demand forced the Court to alter its conception of the role of the state. Thus, in Nebbia v. New York (1934) and West Coast Hotel Co. v. Parrish (1937), the Court rejected Lochner's narrow definition of permissible governmental goals. Legislative efforts to redistribute wealth through social programs or enhance the bargaining positions of weaker parties were now legitimate exercises of power. With the permissible ends of government thus broadened, the Court soon indicated in United States v. Carolene Products Co. (1938) that Lochner's rigorous insistence on a close fit of “ends” and “means” in economic regulation had to yield to a policy of judicial deference to reasonably debatable economic measures. The hands-off approach to economic regulations with a rational basis also extended to decisions narrowly construing the reach of the contract clause and the takings clause. This policy of judicial deference would not necessarily extend beyond the economic sphere, however. Justice Harlan Fiske Stone, in his famous footnote four to Carolene Products, explained that regulations interfering with fundamental personal liberties and burdening disadvantaged minority groups would be subjected to a more demanding level of scrutiny. This dual standard for review allowed the Court in a number of decisions that culminated in Roe v. Wade (1973) to apply strict scrutiny to government action interfering with private decisions within a “zone of privacy” that included the intimate realms of marriage, reproduction, and child rearing. In the years since 1985, without rejecting this dual framework, the Court has confined the privacy interests protected by substantive due process to those that reflect deeply entrenched, widely held traditional values. In Michael H. v. Gerald D. (1989) the state's traditional interest in the “unitary family” prevailed over a natural father's paternity claim where the child was born into an extant marital family. Most prominently, in Bowers v. Hardwick (1986) the Court held that Georgia could criminalize the act of homosexual sodomy between consenting adults committed in the privacy of the home. Justice Byron R. White's opinion for the majority explained that the right to engage in such conduct had no textual support in the constitutional language. Moreover, he said, the claimed right could not be deemed fundamental, given the long-standing proscription of such conduct in state law and the Court's policy of “great resistance to expand[ing] the substantive reach of [the due process clauses of the Fifth Amendment and Fourteenth Amendment], particularly if it requires redefining the category of rights deemed to be fundamental.”

Source Publication

Encyclopedia of the American Constitution

Source Editors/Authors

Leonard W. Levy, Kenneth L. Karst, Dennis J. Mahoney

Publication Date

1992

Volume Number

Suppl. 1

Substantive Due Process (Update)

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