Rights Revolution and Substantive Due Process (Lecture 6)

Tanmoy Bhattacharyya on American Jurisprudence (Ten Lectures)

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Rights Revolution and Substantive Due Process

Substantive due process emerged in American constitutional discourse as a turbulent and frequently contested attempt to locate within the Due Process Clauses a reservoir of protections that extend beyond procedural safeguards. The doctrine rests on the premise that certain interests—whether liberties, dignitary interests, or domains of familial or bodily autonomy—are so integral to ordered liberty that they demand judicial protection even absent any procedural irregularity. From its inception, it stirred theoretical discord: critics viewed it as an unwarranted importation of judicial morality into constitutional text, while defenders argued that the Constitution’s open-textured commitments inevitably require interpretive elaboration. Its earliest and most notorious manifestation arose in the so-called Lochner period, an era in which the Court claimed that the liberty guaranteed by the Fourteenth Amendment included an implied freedom of contract, a freedom thought to immunize individuals and businesses from legislative incursions designed to regulate wages, working hours, and labor conditions. This judicial philosophy presumed that individuals, at least in the eyes of law, negotiate economic arrangements on equal footing and that state interference in such negotiations affronts constitutional liberty.

Cases such as Lochner v. New York and Adkins v. Children’s Hospital epitomized this worldview, projecting a climate of judicial suspicion toward social-welfare legislation and entrenching the belief that economic ordering lay largely beyond the purview of democratic revision. Yet this doctrinal architecture was always fragile: it depended on a contested nineteenth-century notion of natural liberty, and it required the Court to engage in substantive line-drawing between permissible and impermissible legislative paternalism. By the mid-1930s, with the economic cataclysm of the Great Depression unraveling laissez-faire certitudes, the Lochner regime lost its jurisprudential footing. Its collapse reached a symbolic crescendo in West Coast Hotel v. Parrish (1937), in which the Court repudiated the freedom-of-contract doctrine, affirming instead that the Constitution does not immobilize democratic governments in the face of profound socioeconomic need. This doctrinal inflection point—often linked to the “switch in time that saved nine”—recalibrated the Court’s orientation toward economic regulation, inaugurating a prolonged period of deference in which legislatures enjoyed wide latitude to structure markets and labor relations.

Yet the demise of economic substantive due process did not signal the death of the doctrine writ large. Instead, its energy migrated into a new domain beginning in the mid-twentieth century, propelled by shifting public attitudes, intellectual movements, and judicial recognition of the profound stakes embedded in questions of personal privacy and bodily autonomy. The Court eventually distinguished economic liberties from what it came to call “fundamental rights,” a category embracing matters of marriage, family life, reproductive choice, and intimate association. These decisions reflected an emerging conviction that freedom from unwarranted state intrusion into certain intimate spheres is indispensable to human dignity and self-determination. The first landmark in this new trajectory was Griswold v. Connecticut (1965), which invalidated a prohibition on contraceptive use by married couples. Rather than resting its reasoning on any single constitutional clause, the Court invoked a metaphor of “penumbras” formed by the “emanations” of various enumerated guarantees—an interpretive gesture suggesting that the Constitution’s rights-conferring provisions radiate protective force beyond their immediate textual enclosures.

With Eisenstadt v. Baird (1972), the Court extended this privacy principle to unmarried individuals, emphasizing that the liberty to decide whether to bear or beget a child belongs to individuals as such, not merely to married couples. This framing subtly transformed privacy from a relational right grounded in marital status into an individual right grounded in personal autonomy. The next and most consequential step occurred with Roe v. Wade (1973), which construed the Fourteenth Amendment as safeguarding a woman’s right to terminate a pregnancy before fetal viability. Roe presented itself not merely as a doctrinal extension of Griswold but as a broader philosophical claim about decisional autonomy and the limits of state authority over intimate life. It sought to balance the pregnant person’s liberty interests against the state’s interests in fetal life and maternal health through a trimester framework that, although later abandoned, shaped constitutional discourse for decades.

To some observers, Roe represented the apotheosis of a living constitutionalist methodology, one that read the Constitution as a charter of evolving principles capable of addressing modern moral and social dilemmas. To others, it exemplified the dangers of judicial overreach, severing constitutional meaning from historical grounding and democratic deliberation. Planned Parenthood v. Casey (1992) attempted to stabilize the conflict by reaffirming the “core holding” of Roe—that pre-viability abortion bans are unconstitutional—while discarding the trimester system in favor of the “undue burden” test. This new standard barred states from imposing restrictions that placed substantial obstacles in the path of a person seeking a pre-viability abortion. But Casey also wove into its fabric an elaborate meditation on stare decisis, institutional legitimacy, and the Court’s role in a divided political landscape, effectively transforming abortion jurisprudence into a battleground not only over rights but over the nature of judicial authority itself.

The edifice built by Roe and Casey ultimately crumbled with Dobbs v. Jackson Women’s Health Organization (2022). The Dobbs majority adopted an originalist-inflected methodology anchored in Washington v. Glucksberg (1997), which had required that any claimed unenumerated right be “deeply rooted in the Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Applying this test, the Court concluded that abortion rights lacked such historical pedigree and therefore warranted only rational-basis review. In rejecting Roe and Casey, the Court repudiated half a century of jurisprudence and restored to states plenary authority to regulate or prohibit abortion. The majority framed its decision not merely as a constitutional correction but as an act of judicial restraint, returning contested moral questions to the democratic process.

The Dobbs decision signaled not only a doctrinal shift but also a profound jurisprudential reorientation. It cast suspicion on earlier privacy decisions that had relied on broader conceptions of personal autonomy, and Justice Thomas, in a separate concurrence, explicitly urged reconsideration of Griswold, Lawrence v. Texas, and Obergefell v. Hodges. Although the majority insisted that abortion is different in kind—given the state’s interest in fetal life—its reasoning nonetheless unsettled the conceptual scaffolding that had long supported protections for contraception, intimate sexual relations, and same-sex marriage. As a result, the future breadth of substantive due process stands uncertain, perched between the gravitational pull of historical traditionalism and the countervailing demands of personal freedom in a pluralistic society.

Contemporary debates about the doctrine reveal a deeper philosophical fissure. One camp regards substantive due process as a constitutional necessity—an interpretive tool that prevents the state from encroaching upon essential liberties that, though unenumerated, flow from the Constitution’s structural and moral commitments. Another camp insists that the doctrine lacks textual footing and invites judicial subjectivity, enabling courts to constitutionalize contested moral judgments. Historical inquiry becomes the battleground: is constitutional meaning fixed by public understandings frozen in the late eighteenth and nineteenth centuries, or does it evolve as society’s comprehension of liberty and dignity matures? These methodological divides are unlikely to vanish, as they reflect incompatible theories of democratic authority, judicial power, and the purpose of a constitution in a dynamic society.

Meanwhile, legal scholars increasingly observe that substantive due process cannot be disentangled from related doctrines—equal protection, incorporation, and unenumerated rights safeguarded through structural reasoning. Some argue that the Court should relocate certain privacy-based rights to the Equal Protection Clause, thereby anchoring them in a textual provision oriented toward anti-arbitrariness rather than historical lineage. Others contend that the Privileges or Immunities Clause, long dormant after The Slaughter-House Cases, offers a more textually coherent foundation for protecting fundamental liberties. Still others propose abandoning categorical approaches altogether in favor of proportionality analysis, a method common in comparative constitutional law but traditionally resisted in the United States.

The current moment is thus one of doctrinal volatility and conceptual recalibration. Substantive due process stands neither triumphant nor defeated but suspended in a state of theoretical contestation. Whether future Courts will constrict it to a skeletal version grounded strictly in historical practice, cautiously preserve its postwar lineage, or redirect its logic into other constitutional provisions remains uncertain. What is clear, however, is that its fate will profoundly shape the legal architecture governing autonomy, family, sexuality, and personal identity for generations to come.