Substantive due process (SDP for short) is an aspect of American jurisprudence under the Due Process Clause, involving substantive unenumerated rights. SDP is to be distinguished from procedural due process, which involves procedural unenumerated rights. The term "substantive due process", is commonly used in two ways: first to identify a particular line of cases, and second to signify a particular attitude toward judicial review under the Due Process Clause.

The term "substantive due process" was first explicitly used in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions usually assert that those liberties ought to be left to the more politically accountable branches of government.

This line of cases is also frequently characterized as a species of judicial activism. Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.

Similar to 0 things you like: