Substantive Due Process?

[Polycarp]

Constitutional law experts, I have a great deal of problem wrapping my brain around the concept of “substantive due process” – in the Scalia Pit thread, minty green and Dewey Cheatem Undhow were going at it hot and heavy, and minty gave what he presumed was an adequate explanation of it – but it still left me a bit baffled. Anyone want to try a words-of-one-syllable approach to what this concept means, and why it’s controversial in Constitutional Law?

[brianmelendez]

Constitutional “due process” embraces two distinct concepts: “procedural” due process, and “substantive” due process.

Procedural due process involves whether a law or an administrative or judicial determination has been arrived at fairly. For example, a statute must have been enacted in precisely the constitutional manner, and must clearly notify the citizen of what it expects of him or her. In a judicial proceeding, procedural due process requires notice to the affected parties, a hearing where they can each tell their story, and an impartial decisionmaker who follows the rules and treats all the parties equally. In a criminal case, procedural due process also requires the presumption of innocence and the state’s burden of proving guilt beyond a reasonable doubt.

Substantive due process is murkier: it involves whether the government is acting reasonably, rather than arbitrarily or capriciously (so much for words of one syllable, but those particular words are practically terms of art in constitutional law). A governmental action must pursue a lawful end by some means that bears a rational relationship to the end in view. If the action impinges upon some protected right, then it is subject to “strict scrutiny”–that is, a more carefully searching inquiry–and must be narrowly tailored in order to achieve some important governmental interest. Substantive due process, while still a viable concept in constitutional law, carries a bad odor because the courts applied it liberally during the first third of the 20th century in order to strike down various economic reforms. The Supreme Court almost entirely retreated from substantive due process in the economic arena during the New Deal.

From The United States Constitution Online:

Due process, in the context of the United States, refers to how and why laws are enforced. It applies to all persons, citizen or alien, as well as to corporations.

In that, the “how” is procedural due process. Is a law too vague? Is it applied fairly to all? Does a law presume guilt? A vagrancy law might be declared too vague if the definition of a vagrant is not detailed enough. A law that makes wife beating illegal but permits husband beating might be declared to be an unfair application. A law must be clear, fair, and have a presumption of innocence to comply with procedural due process.

The “why” is substantive due process. Even if an unreasonable law is passed and signed into law legally, substantive due process can make the law unconstitutional. The Roe v Wade abortion decision declared a Texas law in violation of due process and ruled that in the first trimester, it is unreasonable for a state to interfere with a woman’s right to an abortion; during the second trimester, it is reasonable for a state to regulate abortion in the interest of the health of mothers; and in the third, the state has a reasonable interest in protecting the fetus. Another application has been to strike down legislation requiring certain non-dangerous mentally ill persons be confined against their will.