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Substantive Due Process

Whether or not executive action is sufficiently arbitrary, egregious, or conscience-shocking to state a due process claim turns on the circumstances under which the government official was acting. In no case, however, will an allegation of mere negligence suffice: “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Id. at 849. At the opposite extreme, “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. Between these extremes, there may be occasions when “something more than negligence but ‘less than intentional conduct, such as recklessness or “gross negligence” ’ ” will suffice, depending on how much opportunity there was for deliberation, reflection, and forethought. Id. at 849, 851. In County of Sacramento, the Court held that only an allegation of “purpose to cause” harm would suffice to state a due process claim in a case involving a motorcycle rider who was killed during a high-speed police chase calling for split-second judgments. By contrast, the Court suggested that an allegation of “reckless disregard” or “deliberate indifference” might be enough to support a due process claim in a case concerning the medical treatment of prisoners or pretrial detainees.

Standards of Review

The determination of whether a law violates substantive due process because it is so arbitrary, unfair, or unreasonable as to lack an adequate justification depends almost entirely on what standard a court employs in assessing these criteria. The Court today generally uses one of two basic standards to decide whether a law violates substantive due process. If a fundamental liberty interest is infringed, the Court applies strict scrutiny, in which case a law will usually be struck down unless it is shown to be the least burdensome means of achieving a compelling governmental interest. On the other hand, where only property or a nonfundamental liberty interest is involved, the Court applies a rational basis test, under which a law will be upheld if there is any legitimate goal that a rational legislature might have thought the measure would further—whether or not this was actually the law’s goal or whether the law actually furthers it. The strict scrutiny and rational basis tests constitute the Court’s two basic approaches to substantive due process. However, in certain settings, such as abortion, the Court may employ a variation of the normal strict scrutiny test.

Economic versus Noneconomic Due Process

In thinking about substantive due process, it is helpful to distinguish between economic due process and noneconomic due process. Economic due process involves the Court’s application of the Due Process Clause to protect real and personal property and to assess potential infringements of economic liberties, such as the liberty to contract and the liberty to pursue a trade or occupation. The standard of review in all economic due process cases is rational basis. Noneconomic due process deals with the clause’s application to laws that infringe on civil or personal liberties, such as the freedom to marry and the freedom from physical restraint. If the noneconomic personal liberty at issue is deemed fundamental, then the standard of review is strict scrutiny. Otherwise, a rational basis standard applies.

Though the Court’s decisions in these two areas have taken divergent paths, there was initially no hint of a distinction between economic and noneconomic due process. Indeed, in one of the first decisions to recognize a substantive component to the Due Process Clause, the Court suggested that private property was entitled to the same level of due process protection as personal liberty: “[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment. …” Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 450 (1857). Yet despite the fact that the text of the Due Process Clause gives liberty and property equal billing, the Court today does not treat property or economic liberty as fundamental rights. However, for roughly 50 years, spanning the period from the late 1880s through the late 1930s, the Supreme Court was far more protective of economic interests than it is today, placing them at least on a par with personal liberties. We will briefly examine that period, which is known as the Lochner era, before turning to the Court’s current application of substantive due process in property and economic liberty cases.

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