I’ll be watching you

Every breath you take
Every move you make
Every bond you break
Every step you take
I’ll be watching you*

 . . . which can be reassuring, if I’m your guardian angel, or creepy, if (as in the song) I’m your ex-boyfriend and you are the woman who moved on, or chilling, if I’m the state and you live your life in some way that I forbid. If the latter, is there a legal basis for you to argue that my prohibition interferes with your personal liberty?

*The Police, “Every Breath You Take,” Synchronicity (1983)

Week 4’s cases, Cruzan v. Director, Missouri Department of HealthGonzales v. Oregon, and Lawrence v. Texas, involve the legal concept of substantive due process, of which Professor Erwin Chemerinsky wrote “[t]here is no concept in American law that is more elusive or more controversial . . . [it] has been used in this century to protect some of our most precious liberties. Still, there are now and have always been Justices of the Supreme Court who believe there is no such thing as substantive due process.” 1

Professor Chemerinsky offers this definition:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed the proper procedures when it takes away life, liberty or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation.2 (emphasis additional)

Why is this concept controversial? A simplistic explanation is that the words substantive due process do not appear in the United States Constitution. But, as Timothy Sandefur notes in “Why Substantive Due Process Makes Sense,”3 neither does the phrase separation of powers–yet no one disputes its rock-solid Constitutional footing.

Full exploration of why the concept of substantive due process is controversial is not necessary for our purposes–which is good, because the answer becomes entangled with one’s legal, historical, philosophical, political, economic, and jurisprudential views.4 It suffices to note that while some U.S. Supreme Court justices don’t believe in it, enough of them have, and do, to use it as a basis for resolving important issues of personal liberty. Over the years and among numerous examples, the Supreme Court  has, relying on substantive due process, allowed parents to send their children to schools that teach in a language other than English,5 upheld the right of parents to send their children to parochial schools,6 upheld the right to sell and use contraceptives,7 upheld the right to interracial marriage,8 upheld the right to obtain an abortion,9 upheld the right to engage in consensual homosexual activity,10 upheld the right to same-sex marriage11 . . . it’s a long list.**

What, then, is “a sufficient substantive justification, a good enough reason,” to deprive a person of life, liberty, or property? According to Timothy Sandefur the answer lies in “political and legal principles.”

Not everything the legislature promulgates is, on that account, a good reason. According citizens due process of law means to treat them, not in accordance with whatever the majority happens to desire at any particular time, or to serve the ruler’s (or rulers’) self-interest. Thus the overlap of “procedure” and “substance” is inevitable: to be treated lawfully means to be treated in accordance (procedural) with general, public principles (substantive).12

Following this logic, if substantive due process means “to be treated in accordance with general, public principles,” and if general, public principles evolve and change as society evolves and changes, then the concept of substantive due process is flexible enough to protect such changes. Indeed, in order for the U.S. Constitution to continue to “secure the blessings of liberty to ourselves and our posterity,”13 substantive due process is required to protect such changes.

**Think about it. Until 1967, more than a century after the U.S. Civil War ended, there were state laws making interracial marriage illegal. 1967 is ancient history to you, but I was 14. Jim Crow Laws were not part of my suburban Connecticut environment, yet it still shocks me to recognize they were legal in the U.S. until the mid-1960s.


  1. Erwin Chemerinsky,” Substantive Due Process,” 15 Touro Law Review 1501, 1502 (1999)
  2. Erwin Chemerinsky,” Substantive Due Process,” 15 Touro Law Review 1501, 1502 (1999)
  3. Timothy Sandefur, “Why Substantive Due Process Makes Sense,” Cato Unbound, 6-Feb-2012
  4. Full exploration also requires a considerable amount of research. A Google search of <substantive due process controversial> at 5 pm on 23-Oct-15 produced over 1.12 million hits
  5. “No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed. We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State.” Meyer v. Nebraska, 262 U.S. 390 (1923)
  6. “[R]ights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  7. “We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation. The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice–whether public or private or parochial–is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights [ . . .] In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.” (emphasis additional) Griswold v. Connecticut, 381 U.S. 479 (1965)
  8. “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.” Loving v. Virginia, 388 U.S. 1 (1967)
  9. “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution . . . [These decisions] make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and childrearing and education,” Roe v. Wade, 410 U.S. 959 (1973)
  10. “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons.” Lawrence v. Texas, 539 U.S. 558 (2003)
  11. “The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” Obergefell v. Hodges, __ U.S. __, 135 S. Ct. 2584 (2015)
  12. Timothy Sandefur, “Why Substantive Due Process Makes Sense,” Cato Unbound, 6-Feb-2012
  13. United States Constitution, Preamble