Substantive due process in the US refers to rights not explicitly mentioned in the Constitution but recognized as implicit in the concept of liberty. The Supreme Court deals with these rights in areas such as voting, the first eight amendments, and rights of minorities. Courts analyze whether a violation of a fundamental right is strictly aimed at satisfying an overriding government interest. Procedural due process ensures the right to be informed and heard on government activities that may violate a particular right.
In the United States (USA), substantive due process refers to those rights which, while not specifically mentioned in the United States Constitution, are nevertheless recognized because they are “implicit in the concept of ordained liberty,” according to the United States Supreme Court. For example, many substantive due process cases discuss the constitutional right to privacy, even if the word privacy does not appear in the constitution. These rights stem from the Fifth and Fourteenth Amendments to the Constitution, which prohibit the government from depriving citizens of “life, liberty, or property, without due process of law.” Substantive due process rights primarily concern the freedoms of citizens.
The United States Supreme Court first recognized substantive due process in the 1930s, when it struck down federal minimum wage laws and child labor laws on the grounds that they violated a substantial “freedom of contract.” In modern times, the Supreme Court deals with substantive due process rights in three main areas outlined in United States v. Carolene Products Co.. These areas include the first eight amendments to the constitution; rights related to the political process, such as voting; and the rights of “discrete and insular minorities”, such as racial groups. Other substantive due process rights that the Supreme Court has recognized include the right to marry, discussed in Loving v. Virginia; the right to have children, discussed in Skinner v. Oklahoma; and the right to have one’s children educated in a foreign language, in Meyer v. Nebraska.
When analyzing a situation where the government may have violated a substantive right to a fair trial, a court first asks whether the right in question is a fundamental right. Fundamental rights are those that are deeply rooted in American history or tradition. If the right is a fundamental right, the court applies the so-called strict scrutiny, which asks whether the violation is strictly aimed at satisfying an overriding interest of the government. If the court finds that the right is not a fundamental right, it applies a rational basis review, which asks whether the government’s violation of the right is rationally related to a legitimate state interest.
Substantive due process is different from procedural due process. It is also guaranteed by the fifth and fourteenth amendments. Procedural due process ensures the right to be informed about government activities that may violate a particular right and the opportunity to be heard on the matter.
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