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Constitutional Law

Substantive Due Process and Fundamental Rights

Substantive Due Process and Fundamental Rights

Learn about the complicated debate over whether (and which provision of) the Constitution also protects substantive fundamental rights, the specific fundamental rights the Supreme Court has recognized, and the high bar the Court has imposed to recognition of new fundamental rights.


Few constitutional-law topics are as controversial as what’s today known as substantive due process. This is an umbrella term for two different contexts in which the Supreme Court has held that the Due Process Clauses of the Fifth and Fourteenth Amendments impose substantive, and not just procedural, constraints on government action. We already encountered one of them in our earlier lesson on the incorporation of the Bill of Rights against the states, which the modern Supreme Court has...