May 30, 2019 | Political Speech Under Burson v Freeman
*By arriving here, you have found Substantive Due Process. If you meant to find Procedural Due Process.
The US Constitution, unlike other constitutions around the world, does not generally afford positive rights. Meaning, under the Constitution, federal and state governments do not have to affirmatively provide things for you. There is no constitutional right to access to healthcare. There is no constitutional right to public education and there is no constitutional right to employment. For an alternative vision of a national constitution that does provide such things, see the Constitution of South Africa.
However, the US Constitution does provide so-called negative rights. Meaning, under the Constitution, people have certain rights, freedom of speech, for example, that the government cannot infringe upon. Some of these rights are explicit. They are stated outright in the text of the Constitution. Some of these rights, though, are implied. Among the sources of the implied rights, the Due Process Clause is by far the richest. In addition to housing Procedural Due Process and being the bridge through which the Bill of Rights is applicable to the states, the Due Process Clause also guarantees substantive rights unto itself.
Conceptually, there may be no limit to the number of rights that can be derived from the Due Process Clause. As time has passed, the Supreme Court has found numerous such rights. The parameters, however, of what constitutes a right so fundamental as to be implied by the Due Process Clause have never been entirely concrete. To decide if a right is fundamental, the Court asks “whether the right…is fundamental to our scheme of ordered liberty…or whether this right is deeply rooted in our nation’s history and tradition.” Though this may sound more like a philosophical musing than a legal test, these phrases are at the core of what the Court has looked to in establishing implied fundamental rights.
Below, you will find examples of potential rights the Court has grappled with.
It is important to remember, however, that like with many other clauses in the Constitution, little is absolute. Simply because a right is found, does not mean that the government cannot constrict that right under certain circumstances. Once a fundamental right is established, the Court generally will then apply its most stringent level of review, what is known as “strict scrutiny.” Meaning, for a government action infringing on a fundamental right to be constitutional, the action must have a compelling purpose and the action must be narrowly tailored to that purpose. If the Court finds that this is not the case, the action will be unconstitutional.
Similarly, if a right is found not to be fundamental or protected by the Constitution, the Court will apply its least stringent level of review, what is known as “rational basis review.” Meaning, for a government action not infringing on a fundamental right, it need only have a legitimate purpose and the action must have a rational relationship to that purpose. Only if the Court finds this to not be the case will such an action be unconstitutional.
Finally, as an aside, the Due Process Clause in the 14th Amendment was modeled after the Due Process Clause of the 5th Amendment. The languages of the two amendments are nearly identical. This is fitting; because the 14th Amendment Due Process Clause was simply intended to extend to the states the same limitations as were placed on the federal government in the 5th Amendment. Therefore, it should be kept in mind that the analysis of Substantive Due Process and the various implied fundamental rights are the same whether infringed by a state government or the federal government. However, technically, when such a right is infringed upon by the federal government, protection is afforded by the 5th Amendment. When such a right is infringed upon by a state or local government, protection is afforded by the 14th Amendment.
|Meyer v. Nebraska (1923)|
Pierce v. Society of Sisters (1925)
McDonald v. Chicago (2010)
|Economic Liberty||Important Cases|
|Economic Liberty, or Freedom of Contract as it is sometimes called, was at one time a centerpiece of the Court’s jurisprudence regarding Substantive Due Process. As early as 1897, in Allgeyer v. Louisana, the Court found there to be a fundamental right to freedom of contract. In that case, a Louisiana statute was passed prohibiting in-state companies from doing business with certain out-of-state companies. In typical lofty language, the Court held that liberty meant “not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”So the Lochner Era was born. This period, the decades during which the Supreme Court generally invalidated statutes that interfered with private businesses, is known as the Lochner Era because of the case that is considered to be at the heart of the once-prominent fundamental right to freedom of contract. In Lochner v. New York (1905), using strict scrutiny, the Court invalidated a NY statute prohibiting bakers from working more than 60 hours per week and/or 10 hours per day. Such laws may be commonplace today; but they were unconstitutional during this period. Upholding the bakers and employers’ desire to be free to work as they wished, the Court invalidated the statute.Under Lochner, the branches of the modern regulatory state (minimum wages, unemployment compensation insurance, social security, etc.) would all likely be unconstitutional. For example, in Hammer v. Dagenheart (1918), even child labor laws were invalidated.|
By the Great Depression, however, with a seismic shift toward increased government involvement in businesses and employment, the Court shifted as well. In Nebbia v. New York (1934), without expressly rejecting the notion of a right to economic freedom, the Court nevertheless gave deference to the legislature and upheld a statute setting price controls for the dairy industry. By 1937, in West Coast Hotel Co. v. Parrish (1937), upholding the constitutionality of a minimum wage requirement, the Court explicitly repudiated the freedom of contract. “What is this freedom?” asked Chief Justice Hughes. “The Constitution does not speak of freedom of contract.” It is this approach that has held sway among the Justices ever since.
Today, some consider the demise of the Lochner Era and the rise of other Substantive Due Process rights to be inherently contradictory. But this theoretical debate aside, Economic Substantive Due Process no longer exists, while Non-Economic Substantive Due Process is alive and well.
|Mugler v. Kansas (1887)|
Allgeyer v. Louisana (1897)
Lochner v. New York (1905)
Adair v. United States (1908)
Hammer v. Dagenhart (1918)
Bailey v. Drexel Furniture Co. (1922)
Nebbia v. New York (1934)
West Coast Hotel Co. v. Parrish (1937)
United States v. Carolene Products Co. (1938)
Fergusun v. Skrupa (1963)
|The Right to Privacy can be found in many places throughout the Constitution. Various amendments in the Bill of Rights speak of protections against intrusions on private beliefs, private statements, and private homes.But the Court has also found a general Right to Privacy, one housed in the 14th Amendment. The notion that privacy is so fundamental so as to be a right granted by the Due Process Clause was foreshadowed early in the 20th Century. However, in modern jurisprudence, it is the case of Griswold v. Connecticut (1965) that set privacy’s place as an implied fundamental right.In Griswold, Connecticut had made it a crime for married couples to use contraception and for anyone to aid or abed them in that use. The Court, however, invalidated this statute under an implied fundamental right to privacy. Not all Justices adhering to the existence of this right did so under the Due Process Clause, however. The majority actually found “zones of privacy” emanating from the Bill of Rights, creating a sort of general gloss on those amendments that gave rise to the right to privacy. One Justice cited the 9th Amendment as a potential source for new rights, including this right to privacy. However, Justice Harlan, also writing his own opinion concurring in the judgment, found there to be a right to privacy in the notion of liberty as set forth in the Due Process Clause. Though his was not the majority approach in Griswold, it has had the most lasting significance.||Meyer v. Nebraska (1923)|
Pierce v. Society of Sisters (1925)
Griswold v. Connecticut (1965)
Eisenstadt v. Baird (1971)
|In the nineteenth and early twentieth centuries, it was commonplace for a state to ban abortion. So, in 1969, when a young girl named Norma McCorvey wanted an abortion in her home state of Texas where such an act was illegal, she had little recourse. Ms. McCorvery sought help from two local attorneys who brought the case up to the U.S. Supreme Court. Though the baby had long been born when Roe v. Wade was eventually decided in 1973, this case changed the landscape of abortion law and is still cited today by both pro-life and pro-choice advocates alike.As was framed by the Court in Roe, the constitutionality of abortion restrictions presents unique questions. Simply put, there are several competing interests at play. On the one hand, as stated above, there is a woman’s right to privacy as was emphasized in Griswold. But on the other hand, there is a state’s potential interest in protecting the life of the fetus. Framing both sides of this issue is the aim of protecting the mother’s health.The Court found that abortion restrictions do infringe upon a woman’s right to privacy. Though the question was raised, the Court also held that the fetus was not a person under the constitution. To show that constitutional protection did not extend to the fetus, the Court cited to various uses of the word “person” in the Constitution that, in context, could only be referring to a born person. Therefore, according to the Court, abortion doesn’t pit the constitutionally protected privacy of the mother against the constitutionally protected life of the child.|
However, the Court still recognized other potential government interests, such as mitigating the health risks of obtaining an abortion, and protecting a “potential person.” To resolve the balancing of these interests, the Court somewhat uniquely created what came to be known as the “trimester framework.” Meaning, instead of looking to the violation of the Due Process Right to privacy and applying ordinary strict scrutiny to restrictions and the purposes behind those restrictions, the Court creating another, separate analysis singularly for abortion restrictions. This test resembled strict scrutiny but used the three trimesters of a pregnancy as guideposts for balancing the value of the potential life of the fetus, and health and privacy of the mother. The trimester framework has since been abandoned by the Court, but Roe still today stands for the proposition that government does not have a blank check to prohibit all abortions.
Instead of the trimester framework, the modern test for the constitutionality of abortion restrictions comes from the Court’s decision in Planned Parenthood of Southern Pennsylvania v. Casey (1992). This case, challenging some abortion restrictions passed by Pennsylvania, was thought by many to be the one that would see Roe overturned, considering the changes that the makeup of the Court had undergone in the decades since Roe was decided. Though the trimester framework was rejected by the Court, Roe‘s central premise, that woman has a privacy right to choose to have an abortion, was affirmed.
Justice O’Conner, writing for the plurality opinion in Casey, felt that Roe had undervalued the potential life of the fetus. She established a test that turned on what she called an “undue burden.” Under this test, for a viable fetus, government may completely ban abortion. But for a fetus that is not yet viable, if the state restriction has the effect of placing a substantial obstacle in the path of a woman seeking an abortion, this restriction is an undue burden and is unconstitutional. If the state restriction does not place a substantial obstacle in the way of a woman’s choice, even if a state measure is designed to persuade her to choose childbirth over abortion, the measure will be upheld.
Justice O’Conner used this test to uphold an informed consent provision where, except for a medical emergency, a woman must wait at least 24 hours after her physician describes the nature of the procedure, risks of the procedure, and the probable gestational age of the unborn child to get an abortion. But the Court also invalidated a spousal consent provision where a wife needed consent from her husband to obtain an abortion.
Today, under this standard, strict scrutiny is not given to abortion laws; and instead, the undue burden test is applied.
| Roe v. Wade (1973)|
Doe v. Bolton (1973)
City of Akron v. Akron Center for Reproductive Health (1983)
Thornburgh v. American College of Obstetricians and Gynecologists (1986)
Planned Parenthood of Southern Pennsylvania v. Casey (1992)
Gonzales v. Carhart (2007)
|Family Association||Important Cases|
|Sometimes referred to as the implied fundamental right to intimate association, strict scrutiny may also be triggered for the abridgement of a person’s right to associate himself or herself with close family, and define that family as he or she chooses (note: this should not be confused with the right to expressive association under the 1st Amendment). Conceptually, this is yet another branch of the right to privacy as established in Griswold.For example, in Moore v. East Cleveland (1977), the Court invalidated an ordinance restricting housing to a single nuclear family. The plaintiffs in that case were an extended family including a grandmother, nephews, and cousins. The Court held that this ordinance was not narrowly tailored to the purported government objectives of mitigating traffic and reducing financial burdens on public schools.||Michael H. v. Gerald D. (1989)|
Stanley v. Illinois (1977)
Moore v. East Cleveland (1977)
Zablocki v. Redhail (1978)
Troxel v. Granville (2000)
Hollingsworth v. Perry (2013)
|Sexual Privacy||Important Cases|
|The question of whether consenting adults have a fundamental right to engage in sexual conduct of their choosing has proven to be a contentious issue both for the public and for the Supreme Court.In 1986, in Bowers v. Hardwick, the Court examined the constitutionality of a Georgia statute of the type known as a “sodomy law.” These laws criminalize certain sexual behavior. In this case, two men were arrested under a statute that prohibited oral and anal sex between partners. The plaintiffs brought suit against the statute itself, alleging that it infringed upon yet another iteration of the implied fundamental right to privacy. But the Court rejecting this argument, holding that [p]roscriptions against that conduct have ancient roots…to claim that a right to engage in such conduct is “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty” is, at best, facetious.”But only 17 years later, the Court reversed itself in something of a confusing manner. In Lawrence v. Texas (2003), a gay couple was arrested under a Texas sodomy law. Here, however, the Court invalidated the statute. Justice Kennedy, writing for the majority, penned a lofty tribute to personal freedoms: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”|
Yet, despite this language, Justice Kennedy did not apply strict scrutiny to the Texas statute. Meaning, he still did not believe that the right to exercise that liberty rose to the level of a fundamental right. Instead, he applied rational basis review, the lowest level of review with the greatest discretion afforded to legislatures, and invalidated the statute nonetheless.
This confusing analysis has left lower courts struggling to understand the place that sexual privacy holds on the spectrum of constitutional freedoms, though not necessarily to the degree that Justice Kennedy, dissenting in Lawrence, anticipated. Ultimately, what is clear from Lawrence, is that Bowers has been repudiated.
Tangentially, Justice O’Conner, who had actually been in the majority in Bowers, wrote her own concurrence in Lawrence. She approved of the invalidation of the Texas sodomy law; but she did not agree with Justice Kennedy’s analysis. Instead of focusing on Substantive Due Process and implied fundamental rights, Justice O’Conner felt that the statute in question in Lawrence violated the Equal Protection Clause.
Justice O’Conner felt that the statute in Lawrence, which specifically criminalized sexual conduct between homosexual partners unconstitutionally singled out one group from others, while the statute in Bowers was technically drafted to apply to both homosexual and heterosexual partners. Justice O’Conner used this analysis to characteristically split the difference between Bowers and Lawrence, holding that both cases were correctly decided, instead of holding that Lawrence overruled Bowers.
|Bowers v. Hardwick (1986)|
Lawrence v. Texas (2003)
|Like many other implied rights, the contours of an implied fundamental right to procreate are blurry, if any such right even exists at all.In Buck v. Bell (1927), the Court examined a Virginia statute that authorized the compulsory sterilization of the mentally challenged. The Court upheld the statute in this case, calling the particular woman for whom the lawsuit was brought “a feeble minded white woman…daughter of a feeble minded mother…and the mother of an illegitimate feeble minded child.” Technically, Buck has never been overruled.However, less than twenty years later, in Skinner v. Oklahoma (1942), another suit was brought, this time challenging an Oklahoma statute requiring the sterilization of repeat offender criminals that committed certain felonies. The Court unanimously invalidated the statute in Skinner using strict scrutiny. The opinion expressed the sacrosanct nature of the right that is the ability to have children: “Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.”|
However, the Court did not use the Due Process Clause to invalidate the statute. After expressing the above unequivocal sentiment, the Court applied strict scrutiny under the Equal Protection Clause. Meaning, the statute was not unconstitutional because it infringed on some fundamental right as housed in the Due Process Clause. Instead, the statute was unconstitutional because it unconstitutionally treated people differently. In the Oklahoma statute, only some criminals were subject to the sterilizations, leaving out white-collar criminals entirely. It was this classification that triggered strict scrutiny, rendering the statute invalid.
But though Skinner did not technically overrule Buck, the number of forced sterilizations dropped after the mid-1940s, due to both the legal uncertainty left by Skinner and the aftermath of the crimes committed during World War II. Still, while the right to procreate has been practically protected, it has not been explicitly recognized and analyzed under the Due Process Clause
|Buck v. Bell (1927)|
Skinner v. Oklahoma (1942)
|In various places throughout the Constitution, citizens of the United States are expressly given certain voting rights. In Article I, Section 2, the people were given the right to vote for members of the House of Representatives. In the 17th Amendment, the people were given the right to vote for members of the Senate. In Article II, Section 1, the system of the Electoral College was set up (though technically states were given the right to choose how the Electors were chosen, in practice, this has meant a popular vote in each state for that state’s Electors).However, the Constitution makes no other guarantees with regard to voting. There are no constitutional provisions governing state or local elections. There are no provisions laying out the standards for voting for members of Congress. There are no provisions holding the states to any sort of uniform standard with regard to how they manage the Electors they send to the Electoral College.However, the Supreme Court has still recognized other requirements of voting, implicit in the Constitution. This concept is worth noting under the Due Process Clause even though the Court has generally tended to find that infringements of the right to vote are grounded in the Equal Protection Clause. The Court’s analyses of voting rights are excellent examples of the overlap between the Due Process Clause and the Equal Protection Clause. Infringements of either garner strict scrutiny review by the Court. The end result is the same, despite which path is taken.|
Underpinning the very notion of voting is the democratic goal of equalizing the voices of the people. Even though poll taxes were invalidated in Harper v. Virginia State Board of Elections (1966) under the Equal Protection Clause, and the recount in the 2000 Presidential Election was invalidated in Bush v. Gore (2000) under the Equal Protection Clause, the right to vote is often included among the implied fundamental rights as guaranteed by the Due Process Clause.
|Baker v. Carr (1962)|
Reynolds v. Sims (1964)
Harper v. Virginia State Board of Elections (1966)
Kramer v. Union Free School District (1969)
Bush v. Gore (2000)
Crawford v. Marion County Election Board (2008)
|As mentioned, the Constitution does not guarantee affirmative rights. Meaning, unlike some other governments around the world and even some individual U.S. states, the U.S. Constitution makes no promises to provide things for the people like education and healthcare.Thus, the Court’s decision in San Antonio Independent School District v. Rodriguez (1973) makes perfect sense. In San Antonio, the Court held that a school district did not violate the Constitution when it financed its schools using surrounding property taxes, creating disparately funded schools. The challengers argued that education was essential to our democratic freedoms and should be included among the implied fundamental rights of the Due Process Clause. However, the Court rejected this argument, affirming the foundational principle that the Constitution does not provide affirmative rights.But less than a decade later, in Plyer v. Doe (1982), the Court invalidated a school district’s requiring undocumented children pay tuition for public school education. The Court said that it simply rejected this government action under rational basis review, which would fit with the typical approach to affirmative rights. However, the Court also said that it required “a showing that it furthers some substantial state interest,” a standard that is above what is required under rational basis review.|
The dissent in Plyer admonished the majority for its inconsistency and for clouding the law regarding fundamental rights and education, accusing the majority of using a “quasi-fundamental right” analysis. The dissent was emphatic: “If ever a court was guilty of an unabashedly result-oriented approach, this case is a prime example.”
Still, despite this case, the Court’s approach to affirmative rights remains relatively clear: none exist under the U.S. Constitution.
|San Antonio Independent School District v. Rodriguez (1973)|
Plyler v. Doe (1982)
|While other implied fundamental rights may be only tenuously established or recognized by the Supreme Court, the right to travel within the United States has been repeatedly and explicitly acknowledged as being guaranteed by the 14th Amendment.For example, in Shapiro v. Thompson (1969), the Court invalidated a Connecticut law requiring a person to live in the state for at least one year before receiving welfare. Though the Court specifically cited to the Equal Protection Clause, again, there is often little or no difference between an analysis under that clause and under the Due Process Clause. Either way, a fundamental right to travel between states was found to have been abridged by such a statute hindering interstate travel.In Kent v. Dulles, the Supreme Court held that the right to travel was a liberty interest which could not be deprived without Due Process under the 5th Amendment. However, this right has been subject to restrictions in some cases, such as when national security is at issue. A denial of a passport to travel to Cuba (Zemel v. Rusk), as well as the detention of Japanese Americans during World War II (Korematsu v. United States) were both upheld as valid restrictions.||Korematsu v. United States (1944)|
Kent v. Dulles (1958)
Zemel v. Rusk (1965)
United States v. Guest (1966)
Shapiro v. Thompson (1969)
Saenz v. Roe (1999)