Substantive due process
Substantive due process is the American legal idea that the Due Process Clauses protect substantive rights.[1]
Substantive rights say what government can and cannot do. They are different from procedural rights, which say how government can and cannot do something.
The Due Process Clauses are in the Fifth Amendment and the Fourteenth Amendment.[1] The Fifth Amendment controls the federal government. The Fourteenth Amendment does the same for state governments. So substantive due process says that both the federal and state governments cannot touch substantive rights.
The Supreme Court started substantive due process in United States v. Carolene Products Co., 304 U.S. 144 (1938).[2] It was very popular for a long time.[1]
In the 1980s, a lot of people started to think it was really silly.[3] This is because "due process" means the way government can do something. "Process" is also called "procedure". "Procedure" is the opposite of "substance". So people say that "substantive due process" is an "oxymoron".[3] This means it is a thing that is its own opposite, making it impossible.
Though substantive due process still exists, the Supreme Court has not made new substantive due process in a long time.[1] Instead, the Court has made there less substantive due process.[1] The legal idea of substantive due process is probably in decline.[1]
- 1 2 3 4 5 6 "Overview of Substantive Due Process | Constitution Annotated | Congress.gov | Library of Congress". constitution.congress.gov. Retrieved 2026-10-29.
- ↑ "United States v. Carolene Products Co., 304 U.S. 144 (1938)". Justia Law. Retrieved 2026-10-29.
- 1 2 hlr (2026-04-10). "The "History and Tradition" of Substantive Due Process in State Constitutions Harvard Law Review". Harvard Law Review. Retrieved 2026-10-29.