Substantive Due Process and the Right to Privacy in the US

Understanding Due Process

• ⚖️ Due process can be understood in two ways: procedural and substantive.
• 📜 Procedural due process focuses on the 'how' of government action, ensuring fair procedures like notice and a hearing before rights are affected.
• 📌 Substantive due process focuses on the 'what,' asserting that certain rights are protected regardless of procedure, meaning the government cannot pass laws that infringe upon them.

Enumerated vs. Unenumerated Rights

• 💡 The Constitution explicitly lists enumerated rights, such as freedom of speech in the First Amendment.
• 🌳 However, the courts have recognized unenumerated rights, which are implied by the Constitution, suggesting that not all rights need to be explicitly written.

Key Supreme Court Cases on Privacy

• 🤝 In Griswold v. Connecticut (1965), the Supreme Court recognized a right to privacy concerning the use of birth control, deeming it an unenumerated right implied by the Constitution.
• 🤰 Roe v. Wade (1973) extended this privacy right to include abortion, establishing a trimester system to balance privacy with state interests.
• ❌ More recently, Dobbs v. Jackson (2022) overturned Roe v. Wade, ruling that abortion is not an unenumerated right under the Constitution and allowing states to regulate or ban the procedure.

The Evolving Concept of Substantive Due Process

• 🎯 Substantive due process examines which laws can exist and whether they infringe upon fundamental rights, whether enumerated or unenumerated.
• ⚠️ The interpretation of privacy as a substantive due process right has evolved, with the Supreme Court now holding that while privacy is a right, abortion is not protected under it.