What is substantive, as distinct from procedural, due process?

Question

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The Answer is Substantive due process is a principle in constitutional law that protects certain fundamental rights from government interference, even if the laws infringing on those rights are enacted through a proper procedural mechanism. It is distinct from procedural due process, which focuses on the fairness and correctness of the procedures used by the government to enforce laws and take away life, liberty, or property.

Procedural due process is concerned with the "how" of the law. It requires the government to follow fair procedures before depriving a person of life, liberty, or property. This includes the right to be notified of legal proceedings, the right to a fair hearing, the right to counsel, and the right to a neutral judge, among other procedural safeguards.

Substantive due process, on the other hand, is concerned with the "what" of the law. It looks at the essence or content of a law to determine whether it violates fundamental rights that are deemed to be protected by the Due Process Clause of the Constitution, even if the law is applied fairly and with proper procedure. These rights are not always explicitly mentioned in the Constitution but are considered to be so fundamental that the government must have a compelling or very strong reason to regulate or restrict them.

For example, the U.S. Supreme Court has found that substantive due process protects rights such as the right to privacy, the right to marry, the right to procreate, the right to custody of one's children, and the right to bodily integrity. These rights are not explicitly enumerated in the Constitution but have been recognized by the courts as essential to the concept of ordered liberty.

In summary, substantive due process protects fundamental rights from unjust laws, while procedural due process ensures fair treatment in the enforcement of laws. Both are essential components of the legal protections afforded to individuals under the U.S. Constitution.

What Is Substantive, as Distinct from Procedural, Due Process