Substantive Due Process – Fundamental Rights

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Every Due Process Clause analysis begins with the question “Has the government deprived some person of life, liberty, or property?” If there has been no government action, or if there has been no deprivation, then there cannot be a Due Process issue; substantive or procedural.

Substantive Due Process issues involve the states’ power to regulate certain activities. 

Procedural Due Process issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property.

EXAMPLE: Westernstate passes a law forbidding individuals from using nail clippers to cut their nails and requiring instead that only scissors be used. Because the state is seeking to regulate individuals in a way which affects their liberty, the law will be subject to Due Process review.

EXAMPLE: Easternstate enacts a statute requiring all individuals who own cars manufactured prior to 1990 pay a “collector’s” tax. The tax is a deprivation of property, i.e., the money paid, and must pass Due Process review.

If there is a governmental deprivation falling under the Due Process Clause, we will need to continue the analysis and inquire as to the nature of the right involved in order to perform a substantive due process analysis. But before getting to that point it is crucial to understand what "government action" means in this context.

In Shelley v. Kramer, 334 U.S. 1,14 (1948), the Court noted that

“the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.”

The Court made clear that state action through its legislative, executive, or judicial authorities qualifies. Furthermore, the Court pointed out that judicial enforcement of common-law rules satisfies the government action requirement of the Fourteenth Amendment, as does any other official judicial action.

EXAMPLE: Joe and Bob enter into an agreement for the sale of a car. Joe takes the car from Bob and promises to pay the following week. Before paying Bob, Joe gets drunk and crashes the car. He now he refuses to pay Bob for what he terms "that smashed up piece of junk." When Bob brings Joe to court, the judge’s decision to enforce the contract and make Joe pay the agreed contract price constitutes government action for Fourteenth Amendment purposes.

It is not only “official” state action that qualifies for Due Process purposes. If “there is a sufficiently close nexus between the State and the challenged action of the regulated entity…the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Co, 419 U.S. 345, 351 (1974), citing Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

So the behavior of non-government actors may be imputed on the government for Fourteenth Amendment purposes, if there is a “sufficiently close nexus.” What is “sufficiently close?” The mere fact that a business is subject to regulation is insufficient in itself to make the business’ action “government” action. Even extensive and detailed regulation, such as in the case of public utilities, is in itself insufficient, although a government-granted monopoly along with other factors could change that conclusion. See Moose Lodge. Most recently, in March, 2003, the Court held that subjecting a plan to a city’s “referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.” City of Cuyahoga Falls v. Buckeye County Hope Fund, 123 S. Ct. 1389, 1396 (2003) (voters’ decision not imputed on the government).

Whether the nexus is sufficiently close is necessarily a factual question which must be answered based on the totality of the circumstances. However, it is clear that not just any relationship between the government and a private entity will do. As the Court noted in Blum v. Yaretsky, 457 U.S. 991, 1004 (1982),

“although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”

Citing Flagg Bros., Inc. v. Brooks 436 U.S. 149, 166 (1978).

EXAMPLE: The city of Milton grants an exclusive contract to Stuckie’s Sticklers to patrol city streets and issue parking infraction citations. All Sticklers’ employees are put through a city training program and they punch in and out on city time clocks along with various municipal employees. This traditionally public function performed by a private entity in this manner might well constitute a “sufficiently close nexus” to make Stuckie’s Sticklers’ acts "government action" for Due Process purposes.

EXAMPLE: The city of Dalton has an open bidding process by which it selects the electricity providers for city residents every 5 years. Three providers are selected based on their bids, and their information is passed along to residents who then individually select their own provider. This year, Ed’s Electric was one of the winners with the lowest bid and an adequate showing of safety and reliability. In a suit against Ed’s Electric, a Dalton resident would have a difficult time imputing Ed’s actions on the city for Due Process purposes.

Once we have established that the government action requirement has been met, we must consider whether there has been an interference with individual rights which rises to the level of an unconstitutional deprivation. Here begins the true substantive due process analysis. Courts have split substantive due process cases into two categories: those involving fundamental rights and those involving non-fundamental rights. The standard of scrutiny is different for each category, but the essential analytical method is the same.

Fundamental Rights

Fundamental rights are those which bear some relation to the right of autonomy or the right of privacy. The rights in this category are also sometimes referred to collectively as liberty interests. The list includes, but is not limited to, the following rights:

• The right to marry, and the right to procreate
• The right to purchase and use birth control
• The right to custody of one’s own children and to raise them as one sees fit
• The right to refuse medical treatment
• The right to freedom of speech
• The right to travel freely among the states
• The right the vote
• The right to freedom of association
• The right to freedom of religion

Simply because the government is depriving individuals of one of these fundamental rights, or interfering with the free exercise thereof, does not necessarily mean the government action is forbidden by the Due Process Clause. Rather, it means that unless it is necessary for the government to interfere with the right in order to achieve some compelling governmental objective the action will be prohibited. But if it is necessary for a compelling objective, there is no substantive due process violation.

This is called the strict scrutiny standard. When an individual brings a Due Process claim against a state claiming interference with a fundamental right, it is the state’s responsibility to demonstrate the compelling nature of its interest and the necessity of the chosen means. In other words, the state, and not the plaintiff, carries the burden of proof when the strict scrutiny standard is applied. As the Court stated in Bowers v. Hardwick, 478 U.S. 186, 189 (1986),

“to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end.”

EXAMPLE: Massahampshire passes a law banning the use of certain forms of birth control. These forms of birth control, the state believes, have contributed to an increase in sexually transmitted diseases because they protect against pregnancy but not STDs. Since STDs have a high social cost, this is a compelling state interest, says the Massahampshire legislature. If a citizen brings a substantive due process challenge to the law, the state must show that their interest in slowing the spread of STDs is indeed compelling and that an outright ban on the specified forms of contraception is necessary to achieve the goal as there is no alternative means available.

The first modern case in which the court examined state regulation in the area of a fundamental right was Griswold v. Connecticut, 381 U.S. 479 (1965) (see also discussion of judicial activism in Chapter1, Subchapter "Judicial Powers"). Connecticut General Statutes § 52-32 provided that "Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined…or imprisoned” or both. The Court found that there is a penumbral area around the Fourth Amendment right to privacy, and other portions of the Bill of Rights. Griswold at 485. This penumbra of privacy was violated by the Connecticut statute, according to the Court. Since a fundamental right was violated by the Connecticut statute without a compelling justification, the statute was struck down.

You will note that the right to have an abortion is not listed among the fundamental rights above. This is not an oversight. In 1973, Roe v. Wade, 410 U.S. 113 established abortion as a fundamental right, the Court partially overruled Roe v. Wade in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In Casey, the Court held that states may restrict the availability of abortions so long as the restrictions do not place an “undue burden” on the woman’s right to choose. The status of abortion rights was somewhere between that of a fundamental right and non-fundamental right, which was a unique niche for purposes of due process analysis.

Roe v. Wade was fully overturned with the ruling in Dobbs v. Jackson Women's Health Org., 142 S, Ct, 2228 (2022).  Dobbs removed the fundamental constitutional right to abortion and returned "that authority to the people and their elected representatives."  Id. at 2284.

For those privacy and autonomy rights which fall squarely within the Court’s definition of fundamental, the following chart is helpful in applying the strict scrutiny standard.

In Zablocki v. Redhail, 434 U.S. 374, 389 (1978) the Court emphasized that

“When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

The state goal in Zablocki was to ensure that persons with a legal obligation to financially support children not in their custody received the opportunity for counseling before marrying in an effort to protect the welfare of the out-of-custody child. The Court agreed that these were “legitimate and substantial interests” but that the means chosen for achieving the interests “unnecessarily impinge on the right to marry” and the statute was therefore invalidated. Zablocki at 389.

So while the interests here were “legitimate and substantial”, they appear to be something short of compelling. A city’s interest in reducing juvenile crime and victimization, however, may be compelling for due process purposes. See Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997) (ordinance violating substantive due process right to rear one’s children not narrowly tailored to the compelling state interest). A few years before Nunez, the Fifth Circuit Court of Appeals in Qutb v. Strauss, 11 F.3d 488, 493 (5th Cir. 1993) held that the statute in that case which was intended to “reduce juvenile crime and victimization, while promoting juvenile safety and well-being” was narrowly tailored to meet a compelling state interest. Compare Ramos v. Town of Vernon, 331 F.3d 315 (2d Cir. 2003) (intermediate scrutiny standard applied). Although many of these cases were decided on Equal Protection grounds, the extent to which a government interest is or is not “compelling” is not affected by the cases’ postures.

EXAMPLE: In order to limit the number of illegal weapons on the street brought in from other states, Massahampshire legislature passes a law requiring that all cars entering the state be subject to a full weapons search. Because this interferes with the fundamental right to travel freely the law will be subject to the strict scrutiny standard. Applying the analysis, the interest is likely compelling, but the means of achieving the interest are not narrowly drawn and the law would probably be struck down as a substantive due process violation.

EXAMPLE: In order to limit the number of illegal weapons brought into city schools New York institutes a policy of random searches of all students. Any student found to be in possession of an illegal weapon will be immediately expelled. Because the right to education is not a fundamental right, this law will not be subject to strict scrutiny.

EXAMPLE: Florida has made efforts to prevent voter fraud. In part, the state legislature has passed a law requiring that all persons must present at least one valid form of state identification (such as a driver’s license or a state I.D.), an original social security card, and at least one piece of mail received by that person at the address listed on their voter registration card. While the right to vote is fundamental and interference thereof will require applying the strict scrutiny standard, this law is likely to pass muster. The interest in avoiding voter fraud is certainly compelling, and the means chosen to achieve this objective seem narrowly tailored to that end.

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