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Substantive Due Process

The current chapter examines substantive due process. In contrast to procedural due process, which is concerned with the procedures employed in enforcing a law, substantive due process insists that the law itself be fair and reasonable and have an adequate justification regardless of how fair or elaborate the procedures might be for implementing it. Thus, a law that comports with procedural due process because a person is given notice and a full opportunity to be heard might, nonetheless, violate substantive due process if it is substantively unfair or unreasonable. This substantive due process protection is independent of any other textual guarantees found in the Constitution or its Amendments. Thus, substantive due process protects “life, liberty, and property” even if no other textual right has been infringed.

Example 2-A

A state law provides that anyone suffering from AIDS shall be incarcerated in a special state facility until he or she is cured of the disease. The law provides that no one shall be incarcerated until after there has first been a full judicial determination that the person is suffering from AIDS. The alleged victim is entitled to a trial-type hearing with appointed counsel, and an adverse determination by the trial court may be appealed as of right to the state supreme court. Does this law deprive an AIDS victim of liberty without due process of law?


As a matter of procedural due process, the law is constitutional. The measure provides notice and a full opportunity to be heard before any deprivation of liberty occurs. However, as a matter of substantive due process, the measure is probably unconstitutional. A challenger would argue that no matter how fair the procedures for enforcing it, the substance of the law is so unfair and unreasonable as to violate due process. While the state’s goal of protecting the public against the spread of AIDS is an important one, there are arguably less drastic ways of achieving this goal that do not involve such a severe interference with personal liberty.

Executive Abuse of Power

Most procedural and substantive due process cases involve alleged deprivations of life, liberty, or property that result from legislative action—i.e., from action that was specifically authorized by a statute or regulation. In these instances, where we know that the government intended to cause the deprivation, the only issue is whether the deprivation violates the Due Process Clause. Sometimes, however, a deprivation of life, liberty, or property is caused by an executive official in a situation where no legislation approved the specific deprivation in question. For example, suppose a fire truck collides with an automobile and kills the driver, or a prison guard accidentally drops and destroys an inmate’s television set. In these instances, though public employees were operating within the scope of their official duties, the deprivations of life and property were not specifically sanctioned by statute or regulation. Instead, they resulted from what may have been ordinary negligence on the part of a governmental official. Should such executive deprivations be actionable under the Due Process Clause? If so, the Due Process Clause would function like a system of tort law, providing a constitutional remedy whenever executive officials cause injury to persons or property.

The Supreme Court has rejected such a reading of the Due Process Clause, whose principal goal is “protection of the individual against arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). As the Court has explained, “Our cases dealing with abusive executive action have repeatedly emphasized that only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’…” County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). This distinction between legislative and executive action is necessary “to preserve the constitutional proportions of constitutional claims, lest the Constitution be demoted to what we have called a font of tort law.” Id. at 847 n.8. The Court has thus held that “in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. Otherwise, the deprivation is not the stuff of constitutional law and must be redressed through whatever statutory or common law remedies may exist.

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