Dr. Samuel B. Hoff is a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University. A specialist on constitutional law matters, he served as chair of the Dover Human Relations Commission for five years.
The June decision by the U.S. Supreme Court pertaining to abortion places the principle that the previous right was based on — substantive due process — in jeopardy. In fact, a concurrence by Supreme Court Justice Clarence Thomas in the Dobbs v. Jackson Women’s Health Organization ruling suggested that the high court revisit other rights similarly justified using the aforementioned concept. This article defends substantive due process based on both traditional and contemporary interpretation of the Constitution.
Substantive due process usage allows courts to establish and protect certain fundamental rights from government interference by employing the due process clause of the Fifth and 14th amendments. It is distinguished from procedural due process, which protects rights from government abuse in civil and criminal matters.
Rights justified by applying substantive due process can be those regarded as deeply rooted in American history, as well as rights currently generally widely accepted as a result of evolving social norms. These rights have encompassed a wide array of intimate areas, including sexuality, religion, body integrity, autonomy, marriage, child-rearing and self-dignity.
The principle of substantive due process is based on the premise that fundamental rights can be unenumerated as far as specific mention in the Constitution. Too, the latter form of due process relies on a parallel claim that rights protected under that approach are in effect privacy rights, which can be found in one form or another in most of the amendments comprising the Bill of Rights. For example, privacy is seen as a basic reason for the Third and Fourth amendments, which protect against unwarranted military intrusions and police searches, respectively.
Critics of protecting rights not clearly found in the Constitution cite a number of rationales. For one, they accuse the judiciary of overstepping its bounds through augmentation of authority. However, the same could be said for judicial review itself, which has been a basic Supreme Court procedure since 1803. Further, opponents of substantive due process employ the doctrine of the original intent of the Constitution’s framers to deny crucial human rights. But originalism is doomed if one adopts a chaos theory approach to the outcome of the 1787 Constitutional Convention or if the most important trait of originalism — limited government — is recognized. Finally, those who reject that there are fundamental rights needing protection label such rights as examples of moral decay, thus imposing their own values rather than following the strictures of constitutional law.
It is clear that unless an existing law violating fundamental rights satisfies a compelling government interest and is based on clear and convincing evidence, it is inimical to the general welfare of citizens.
The Supreme Court has ruled on a plethora of important cases by applying the substantive due process framework. Though a few were by a close majority, several others — such as the 1925 Pierce v. Society of Sisters and 1967 Loving v. Virginia decisions — garnered unanimous support.
The reaction to overturning a half-century-backed federal right to abortion was intense and generated an array of proposals to counter the Supreme Court’s trajectory, from enacting federal legal protections by law or constitutional amendment, to calls for limiting Supreme Court justices’ tenure, to increasing the total number of justices. While understandable, these demands for change are unnecessary if substantive due process rights are realized and respected. Though the recent abortion decision is an exception, the arc of history still bends toward an expansion of liberty and universal human rights.
