Substantive Due Process

To be distinguished from “procedural” due process… from the 5th Amendment; which
essentially means that government must follow proper procedures before depriving
someone of life, liberty, or property. ie: the law must be uniformly applied.

Lochner v NY (1905)

a. WHO? – Small bakery owner and the state of NY.

b. FACTS – NY passes a “maximum hours” labor law [max 10 hours a day 6 days a
week] – ostensibly to protect the health of bakers. Lochner breaks the law, says
the only way he can compete with corporate sized bakeries is to hire his workers
for more hours.

c. QUESTIONS OF LAW – Do bakers have a fundamental liberty right (to work as

many hours as they want) protected by the Due Process clause of the 14th
Amendment?

d. WINNER – Lochner.

e. LOGIC – The court argues:

The liberty of the individual to “contract” his or her labor is deemed to exist
because the Due Process clause provides “substantive” as well as “procedural”
protections. ie: there are some substantive things that the Constitution protects
that aren’t specifically listed in the text.

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This case is highly criticized by progressives for reading partisan preferences for laissez-
faire economics into the Constitution. ie: they argue ~ show me where the constitution
says we have a right to contract?

This case was so unpopular as to give the entire era from 1895-1936 the name “THE
LOCHNER ERA”.  the actual “switch in time to save nine” came when the court
overruled this case in West Coast Hotel v Parrish (1937)

[note: however, the logic of this case was rarely upheld in other cases… 3 out of 200+.
Indeed, the court usually ruled that there were valid safety reasons for max hours laws.]

Close inspection of the text of the ruling suggests that the Supreme Court was upset by
the fact that they thought NY had passed the max hour law on behest of corporate
interests with the intent of driving small shops out of business.
Griswold v Connecticut (1965)

a. WHO? – Planned parenthood director and state of CT.

b. FACTS – CT has law banning the use of contraceptives (large number of

Catholics in the state). Griswold counsels a married couple to use contraception
in violation of the law.

c. QUESTIONS OF LAW – Does the Constitution protect marital privacy and

therefore prohibit restrictions on contraceptives?

d. WINNER – Griswold.

e. LOGIC – Court holds that while the right to privacy is not found in the
Constitution… it is protected in the “penumbra and emanations” of other
provisions (1st, 3rd, 4th, 9th Amendments specifically).

Two concur but argue … let’s call it what it is… Substantive Due Process…
which now protects privacy.
Roe v Wade (1973)

a. WHO? – TX woman seeking abortion (Roe is not her real name) and Dallas DA.

b. FACTS – Roe seeks an abortion (after lying about being raped) when TX law
only allows abortion in limited circumstances (to save the life of the mother).

c. QUESTIONS OF LAW – Is a woman’s liberty right to terminate her pregnancy

protected by the Due Process clause of the 14th Amendment?

d. WINNER – Roe.

e. LOGIC – Court holds that a woman’s right to privacy is fundamental and should
be extended via substantive Due Process to protect her right to an abortion…
however, this right must be balanced against the state’s interest in protecting
prenatal life. Thus you get the 3 trimester distinction. Abortion is authorized in
the first, restricted in the second, and (ostensibly) prohibited in the third.

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Has been compared to Dred Scott as a case where the court overstepped in trying
to use its authority to answer a divisive question once and for all. Huge backlash.
Essentially severed to give common cause to apolitical (non-voting) Christians to
start getting involved. ie: this case created the ‘religious right’

Roe [Norma McCorvey] has become a Christian (lives in Dallas) and is now a
pro-life supporter.

Sarah Weddington… the woman’s rights lawyer who tried this case is now a part
time lecturer at UT… with an office across the hall from my old one.