Glossary

Substantive due process

A doctrine holding that the Due Process Clauses protect certain fundamental rights from government interference, not just fair procedures.

Also called: SDP, unenumerated rights doctrine

Substantive due process is the doctrine that the Fifth and Fourteenth Amendments' guarantee that no one may be deprived of "life, liberty, or property, without due process of law" protects some rights so fundamental that government may not infringe them at all, no matter what procedures it uses, unless it meets a demanding test such as strict scrutiny.

Courts have used the doctrine to protect economic liberty in the early twentieth century (the Lochner era) and, later, rights not listed in the Constitution, including marriage, contraception and family relationships. In Washington v. Glucksberg (1997) the Court said such rights must be "deeply rooted" in the nation's history and tradition. In Dobbs v. Jackson Women's Health Organization (2022) it applied that test to hold that the Constitution does not protect a right to abortion.

The doctrine is contested from several directions. Many conservatives and originalists argue the phrase "due process" refers to procedure, making the idea a contradiction that lets judges create rights. Supporters, often associated with living constitutionalism, say "liberty" must have real content and that the doctrine is the main vehicle for protecting personal autonomy. It is distinct from procedural due process.

Last reviewed November 8, 2026

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Related terms

Procedural due process The constitutional requirement that government use fair procedures, such as notice and a hearing, before depriving a person of life, liberty or property. Dobbs v. Jackson Women's Health Organization The 2022 Supreme Court decision holding that the Constitution does not confer a right to abortion, returning the issue to elected officials. Incorporation doctrine The doctrine applying most Bill of Rights protections to state and local governments through the Fourteenth Amendment. Living constitutionalism The view that constitutional meaning can and should evolve over time to reflect changing social conditions and values. Strict scrutiny The most demanding test courts use, requiring a law to serve a compelling government interest by the least restrictive means.