Due Process: Procedural and Substantive

 Students often tell me that they are struggling to understand "substantive due process." That is natural, because the idea of substantive process, to quote Justice Scalia, is "babble." 

The Due Process Clause of the 5th Amendment provides that no person shall be "deprived of life, liberty, or property, without due process of law." 

According to one commentator, “Procedural due process concerns the procedures that the government must follow before it deprives an individual of life, liberty, or property." Thus, courts need to focus on  "What procedures satisfy due process?" Basically, due process requires a fair trial, including notice, an opportunity to respond or to defend yourself, and "an impartial tribunal."

Once a person is given fair procedures, his life, liberty, or property may indeed be deprived under laws, such as criminal laws, tort laws, and other duly-enacted laws.

However, the Supreme Court has a long and controversial history of reading substance into the Due Process Clause, as it did infamously in Dred Scott.

Here is how one source defines Substantive Due Process: 

"The Court has also deemed the due process guarantees of the Fifth and Fourteenth Amendments to protect certain substantive rights that are not listed (or “enumerated”) in the Constitution. The idea is that certain liberties are so important that they cannot be infringed without a compelling reason no matter how much process is given." 

Thus, in Dred Scott the Supreme Court held that the Missouri Compromise was uncon­stitutional and that any congressional action to emancipate slaves would violate the substantive due process protections for a slave­holder and his right to travel with his property. A slaveholder’s liberty to bring his human property into a U.S. Territory was substantively protected by the Due Process Clause. 

Again, "substantive process" seems like a contradiction in terms. But it is a doctrine that allows the Court to read new substantive rights into the Constitution, and then to treat those rights as highly protected liberties that may not be taken even with fair procedures. It is as though the Court has judicially amended the Constitution to provide that "No liberty deemed fundamental by this Court shall be deprived even with fair process." 

So how does substantive due process work? If the due process clause substantively protects liberty from being restricted by government, which liberties are protected? All liberties? What would that produce?

Then only certain liberties, only liberties that are really important or fundamental?  Which of those? The ones I think are fundamental? The ones you think are fundamental? The ones 5 unelected Justices think are fundamental? Sez who?