Substantive Due Process (Implied Fundamental Rights)

Introducing Implied Fundamental Rights

There is an extensive debate about express and implied rights within the Constitution. As far as I know, every Court has agreed that there are implied fundamental rights. The disagreement arises in how far these rights extend, how these rights are recognized, and whether there should be implied rights at all. Most of these debates revolve around the 14th Amendment and specifically the idea of substantive due process (to be discussed later).

Ultimately, the winners and losers of this debate are determined by which method of constitutional interpretation is the winner or loser.

Throughout the past semester, we have addressed several methods of constitutional interpretation:

  • Originalism
    • Intent Based
    • Text Based
  • Contemporary Approaches
    • Structure
    • Tradition
    • Moral
    • Natural Law
    • Policy

Privileges and Immunities Clause

The Fourteenth Amendment states “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

Slaughter-House Cases – Monopolization of Slaughterhouses

After the 14th Amendment had passed, there was a lot of debate about what was protected. Nobody disagreed that the 14th Amendment established the citizenship of African Americans within the United States. But there was no clear determination of what that meant for other potential rights. The Slaughter-House Cases first addressed this question.

The largest argument presented by the plaintiffs were that their right to occupation was threatened. The majority rejected this argument.

The 14th Amendment language states:

“All persons…are citizens of the United States and of the State wherein they reside.”

“No State shall abridge the privileges or immunities of citizens of the United States.”

In other words, there are two types of citizenship. A U.S. citizenship, and State citizenship. A very close reading of the text reads that the States are not allowed to infringe on rights that are protected federally. There were only a few rights that are protected federally; the right to access seaports, right to be on the water, etc. nothing that seems too crazy.

However, the dissent states that this thinking makes the 14th Amendment useless (those rights were already protected, the opinion is redundant). Justice Field argues that the whole purpose of these amendments are to interfere with the States ability to regulate. Justice Bradley provides a natural law dissent. That is, there are fundamental rights that should be protected, even though they are not explicitly protected.


  1. The privileges and immunities clause has minimal value when evaluating implied fundamental rights.
  2. The dissent’s opinion is largely recognized as correct, even if it is not controlling law.

Economic Substantive Due Process

Lochner Era

Lochner v. New York – Bakery Work Hours

There are two steps to substantive due process. First, the Court will determine whether there is a fundamental right to something which is protected by liberty (in this case the right to contract). Second, the court will determine what kind of protection these individuals need. Here, the majority argues that the bakers are not a vulnerable group (no extreme health risk and high bargaining power through unions) and thus they do not require as much state protection.

This was essentially an example of where the means to end fit does not match. That is, the reasons for the statute do not match with the desired results (e.g. a legislature that cites health risks when there is minimal change to health risk with the passing of the law).

The dissent is essentially the opposite position. There is a belief that the means and the ends fit. In other words, the reasons will actually have a positive desired result (Harlan). The other dissent argues that this simply doesn’t belong in the constitution (Holmes).

The law today is that there is not a fundamental right to contract, but there is a fundamental right to privacy.

Post Lochner Era

Nebbia v. New York – Fixed Milk Prices

This case shows that there is no such thing as absolute rights to property or contract. When there are features that are essential to the public welfare (e.g. milk provides nutrition for society), they can overpower the rights of property or contract. Although this case is not directly overturning Lochner, it is certainly undermining it to an extent.

The argument essentially is, all you really need is a rational law that addresses a real problem. If the law is rational, then due process is satisfied.

West Coast Hotel Co. v. Parrish – Minimum Wage for Women

One of the largest takeaways from this case is that there is no longer a right to freedom to contract (there is nothing in the constitution that provides for that right). This is the case that is considered the overruling of Lochner.

So, what is the standard that is going to be used? Ultimately, a rational basis test is applied (without using those words). If there is a rational purpose of the legislation that has the ability to reach those ends, then the act is constitutional.

United States v. Caroline Products Co. – Bad Milk


  1. Rational basis is the test to be applied in economic substantive due process cases (almost every regulation will be constitutional).
  2. Footnote 4 – This opinion does not restrict the court from addressing substantive due process for rights associated with the first 10 Amendments/minorities in the future.

Fundamental Interests

A fundamental interest is where the court does not recognize a fundamental right, but that there is still a substantial interest (almost a policy interest) in the alleged right to be protected.

Skinner v. Oklahoma – Sterilization of Habitual Criminals

Skinner is technically considered an equal protection case rather than a substantive due process case. However, it still applies here (kind of sitting in a middle ground).

Our goal of evaluating this case is to compare the difference between the equal protection clause and the due process. The court is getting pretty close to affirming a substantive due process approach (after getting rid of economic substantive due process shortly before), but decides not to do so.

Additionally, this case adopts the idea of strict scrutiny. The law must be narrowly tailored with the least restrictive means. Here, the law was not narrowly tailored because it targets a specific class (those who commit the crimes have different classes. For example, the law protects white collared jobs more).

The concurrence says this should be substantive due process because the equal protection could allow the law to be altered for sterilization to occur for every crime (when the idea is to avoid the sterilization in the first place. See WWII issues with genocide).

Thus, among the fundamental interest includes:

  • The right to have offspring
  • The right to vote – See Harper v. Virginia State Board of Elections

Modern Substantive Due Process

Right to Privacy

The general (although disputed) consensus is that Lochner was wrong to protect a fundamental right to economic freedom, but was correct in assuming that there are fundamental rights. In other words, Lochner’sanalysis may still be valid for other potential fundamental rights, such as the right to privacy. Griswold v. Connecticut was the first main case that outlined this reasoning.

Griswold v. Connecticut – Contraceptives

(Penumbras Opinion) The majority opinion focuses on how several cases have peripheral rights. For instance, the right to choose which school you attend; right to teach, learn, and write; the right to associate with others, are not explicitly mentioned in the Constitution but are inferred protections largely of the First Amendment. Likewise, the right to privacy can be inferred from several Amendments such as the Third, Fourth, Fifth, and Ninth, all made possible through the Due Process Clause of the Fourteenth. Once it is confirmed that there is a fundamental right to privacy, then the statute is a clear violation of that right.

(9th Amendment) The Goldberg concurrence focuses primarily on the Ninth Amendment. This amendment reads that there were other rights that the framers did not put in the constitution but still should be protected.

(Substantive Due Process) The Harlan view agrees with the judgment but believes that the Fourteenth Amendment protects more rights than those simply attached to the Bill of Rights.

Justice Black in the dissent states that there is no right to privacy written in the Constitution. By making this inference of several Amendments, it actually reduces the value of those Amendments by protecting a blanket term, instead of those specified protections. He argues that this is simply going back to Lochner.

After Griswold, the court expanded this theory of privacy from married couples to unmarried couples (See Eisenstadt v. Baird, 405 U.S. 438 (1972))

Right to Abortion

Roe v. Wade – Abortion Trimester Framework

Ultimately, this is the first true substantive due process case. The Harlan concurrence in Griswold is the primary method of constitutional interpretation in this case.

Texas arguments:

  1. A fetus is a person. The counterargument is that constitutionally, the word person did not refer to a fetus.
  2. The legislature can determine that life begins at conception.

The largest issue with this case is that Blackman says that it is not the responsibility of the courts to resolve the issue of abortion, but then proceeds to do so.


  • Abortion before viability is evaluated with strict scrutiny.
  • This the first true substantive due process case.
Planned Parenthood of Southeastern Pennsylvania v. Casey – Undue Burden

Casey was both an adherence and divergent from precedent. This adhered to Roe because it reaffirmed that there was a right to abortion. The reasoning for this holding was stare decises. However, this diverged from Roebecause it rejected the trimester framework.

Ultimately, this was an attempt by the court to compromise. The state still had an interest after viability to do whatever they liked to restrict abortion. However, before viability, the court recognized that the state still had an interest before viability. Thus, the state could restrict abortion before viability as long as the restriction did not impose an undue burden on women. For instance, the state could require informed consent before viability, which would have failed under a strict scrutiny standard. The issue with the undue burden test is that there is no criteria to establish what is due and undue. So, every law would have to follow the procedure just to see what the courts say about it.

Dobbs v. Jackson – No right to an abortion

To determine whether there is a fundamental right:

  1. Explore the history
  2. Are there other similar precedents in the past?

If there is no fundamental right, then the laws will see if they have a rational basis. If so, the law will stand.

Other Family and Privacy Interests

Moore v. City of East Cleveland – Family Living Together

This case is about a city ordinance which limited how many people can live together when they are not related. The issue here is that the ordinance targeted distant relatives too closely. A family was living together with a distant relative. The ordinance caused this family to be separated.

Ultimately, the court determined that there is a fundamental right of a family to live together. Thus, the ordinance infringed on that right and was subject to strict scrutiny (then found unconstitutional).

This case touches on both perspectives on their approach to substantive due process. For example, there was an emphasis on tradition (families have been living together for centuries).

The dissent argues that familial association does not establish a connection to the right of privacy.

Michael H. v. Gerald D. – Biological Father

A women had intimate relations with two men. She married one but the other one was the father. He argues that he has a fundamental right to be associated with his biological child. California did not allow this to be the case.

Scalia, as the majority, upheld the law. Saying that the scope of tradition was not wide enough to determine that there was a fundamental right (no tradition for adulterers to interfere with the relationship of the married couple). Historically rooted in tradition and the right must be stated with specificity (Two elements).

Brennen interprets tradition much more broadly. Tradition is something that is able to grow under the umbrella of the right to privacy.

Troxel v. Granville

Compare this case to Michael H., where the court determined that there was no fundamental right for grandparents to be with the child, the mother’s right is primary.

Right to Die

Cruzan v. Director, Missouri Department of Health – No right to life

For a party to pull the plug, there needs to be clear and convincing evidence that the person on life support wanted the plug to be pulled. The Court rules in favor of Missouri, there is no right to pull the plug (there is an interest in making sure the life of a person on life support is protected from those without alternative interests).

Washington v. Glucksberg – Doctor Assisted Suicide

To establish that there is a fundamental right, there needs to 1) be deeply rooting into the Nation’s history and tradition” and 2) contain a “careful description of the asserted fundamental liberty interest.”

Presently, there is no tradition for suicide in the United States, and that goes for physicians assisting in suicide as well.

Justice Stevens concurring agrees except for the extreme case where a person is in such extreme pain that they should be.

Justice O’Connor concurring says that there should be palliative care (deathbed care). In other words, you can give a person so much medication that they cannot feel the pain until they pass away.

Same-Sex Relations

In 1986, Bowers was the first case about gay rights. In that case, the Court determined that there was no fundamental right for gay intimacy. Implicitly, the Court also determined that there was a fundamental right to opposite-sex activities. In Romer, the Court held for the first time in favor of gay rights. Later, Lawrence, in 2003, overturns Bowers, which is interesting because of how little time has passed between the change.

Before Obergefell, States were split about whether gay rights would be protected within their particular state. An example in Iowa occurred in 2010 when the Iowa Supreme Court invalidated a state ban on same-sex marriage. Several of those judges were then voted out during Iowa’s retention vote the next voting cycle.

Obergefell v. Hodges

According to the majority, marriage is fundamental, but has not consistently been practiced the same way throughout history (e.g., arranged marriages, women’s power within marriage, etc.). Essentially, the majority takes a poll of current social policy, determines that there is a fundamental desire to have the right, and thus establishes that there is a right. To do so, they cite four reasons why gay marriage should be protected.

  1. Right to personal choice
  2. There is a strong desire to preserve marital unions
  3. Safeguards children and family
  4. Nation’s traditions are clear

Essentially, this case is a debate about fairness.

The dissent takes a textual approach.

“If you are among the many Americans-of whatever sexual orientation-who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

This case and Dobbs seem to be polar opposites. Although Obergerfell did not mention the scrutiny level, because Justice Kennedy believes this is a fundamental right (marriage) which would merit strict scrutiny.

Summarizing Substantive Due Process

Washington v. Glucksberg – Conservative approach to Substantive Due Process

Obergefell – Liberal approach to Substantive Due Process

These two cases totally conflict. Dobbs is the most recent winner, following Glucksberg instead of Obergefell.

Current fundamental rights:

  • Privacy – Griswold
    • Gay marriage
    • Blood relatives living together.
    • Contraceptives
    • Procreate
    • Travel

Not fundamental rights:

  • Privacy
    • Grandparents access to grandchildren
    • An adulterous father outside the marital relationship access to child
    • Abortion
    • No right to die
    • No right to “die with dignity”
  • Economy

State Action


A private entity may engage in actions that would be considered unconstitutional if engaged my a governmental entity. For instance, some private entities may discriminate based on race, gender, or beliefs. However, if that private entity is backed by some state action (either by the state giving funding or endorsing the activities on public land), then those actions are unconstitutional.

Shelley v. Kraemer

A neighborhood signed a restrictive covenant which prevented black individuals from occupying property within the neighborhood. Note that these were private contracts and not ordinances imposed by the state or city.

Presently, the judicial system, as a branch of the state, enforced a discriminatory restrictive covenant. Thus, the state (through the judiciary) took an active approach of enforcing those discriminatory restrictions. Thus, the restrictions can exist, but cannot be enforced by the Court. Ultimately, the result is that the covenants don’t work because state action was present.

The interesting outcome of this case is that any agreement that requires court action is subject to constitutional scrutiny. In other words, there is no point in having a doctrine that removes state action, because everything would be considered state action. For this reason, Shelley is one of the hardest to justify because the consequence is that there is no such thing as a private contract (assuming all contracts require judicial enforcement if there is a breach).

Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961).

In Burton, a private business operated within the property of the government. Although privately owned and operated, the private actor was so entangled with the state (entanglement) because of the location. As such, the court determined that there was state action.


Moose Lodge No. 107 v. Irvis

Moose Lodge is a social club that only allowed white individuals to be members and prevented those members from bringing guests who were people of color. The club obtained liquor licenses from the state.

Moose Lodge is different from Burton because Moose Lodge is nearly entirely privately owned. The only “entanglement” between the private party and the state would be through the liquor license. In other words, Moose Lodge is not entangled while Burton was.

The first exception to the state action doctrine is “sufficient entanglement.” In other words, the baseline is that private entities are free from state action unless the private entity is entangled with the state.

The second exception to the state action doctrine is “public function.” If there is discrimination in a private entity that serves a public function, then that practice is unconstitutional. A prime example of this principle in practice are state primaries in preparation for an election. The primary is actually a private entity. Because of their essential role in public functions (elections), any discrimination is unconstitutional.

Procedural Due Process


Equal Protection



Freedom of Expression


Freedom of Religion


Will Laursen

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