Black-letter propositions
- 01
Recognized interests include marriage, parental direction, family integrity, contraception, interstate travel, and certain voting rights under overlapping provisions.
- 02
Unenumerated asserted rights are defined carefully and evaluated through history, tradition, and ordered-liberty analysis.
- 03
Strict scrutiny requires a compelling objective and narrow tailoring when a fundamental right is directly and substantially burdened.
- 04
Economic liberty and ordinary contract regulation generally require only a rational relation to a legitimate interest.
- 05
Procedural and substantive due process answer different questions.
Use this attack sequence under time
Frame the issue
Define the asserted right precisely.
Resolve the next checkpoint
Identify constitutional source and whether it is fundamental.
Resolve the next checkpoint
Determine direct burden and choose scrutiny.
Finish the conclusion
Apply objective and fit without inventing facts.
Common wrong turns
- Do not assume every important personal choice is fundamental.
- A law can provide perfect procedure yet violate substantive due process.
- Rational basis tolerates rough line drawing but not sheer irrationality or forbidden purpose.
Worked example
A city bars all unrelated adults from living together in any home but allows unlimited members of a biological family.
The analysis depends on whether the arrangement burdens a protected family or intimate-association interest and on the breadth and purpose of the classification; define the right before choosing scrutiny.
Practice this topic
What Cornell says
Cornell describes substantive due process as the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. The Fifth Amendment applies to federal action and the Fourteenth to state action. It says the words due process suggest procedure, yet the doctrine has been interpreted to include rights such as the right to work in an ordinary kind of job, to marry and to raise one's children, and it traces the early doctrine to Lochner v. New York.
Cornell defines fundamental rights as rights the Supreme Court has recognized as requiring a high degree of protection, either specifically identified in the Constitution, especially the Bill of Rights, or implied through clauses such as Due Process.
Level of review
Cornell says laws encroaching on a fundamental right generally must pass strict scrutiny. Under strict scrutiny the law starts presumed unconstitutional and the government must show it is narrowly tailored to a compelling interest and uses the least restrictive means.
When no fundamental right is involved, the rational basis test applies, and it requires a legitimate state interest and a rational connection between the law's means and goals.
Because the doctrine protects rights beyond those listed in the Bill of Rights, the first step is to describe the claimed right precisely. Cornell traces the early doctrine to Lochner v. New York, which struck down a law regulating bakers' working hours, and its list of protected liberties includes work, marriage and parenting. The narrower or broader your description of the right, the more likely it fits a recognized category.
Frequently asked questions
What is the controlling rule for substantive due process and fundamental rights?+
Substantive due process protects carefully defined fundamental liberties from unjustified government interference and otherwise leaves ordinary regulation to rational-basis review.
How should I analyze substantive due process and fundamental rights on the bar exam?+
Define the asserted right precisely. Determine direct burden and choose scrutiny. Apply objective and fit without inventing facts.
What is substantive due process?+
The principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, per Cornell's summary.
Which amendment applies to federal action and which to state action?+
The Fifth Amendment applies to federal action and the Fourteenth Amendment to state action, and both prohibit deprivation of life, liberty or property without due process of law.
What is a fundamental right?+
A right recognized by the Supreme Court as requiring a high degree of protection from government encroachment, identified in the Constitution or implied from clauses such as Due Process.
What level of review applies to a law burdening a fundamental right?+
Generally strict scrutiny, according to Cornell, which requires a compelling interest, narrow tailoring and the least restrictive means.
Which rights has substantive due process been read to include?+
Cornell lists the right to work in an ordinary kind of job, to marry and to raise one's children as a parent.
Primary sources
Cornell LII Wex: substantive due process↗Cornell LII Wex: fundamental right↗Cornell LII Wex: strict scrutiny↗Cornell LII Wex: rational basis test↗Governing text for substantive due process and fundamental rights
Constitution of the United States, full text (National Archives) ↗