Analyzing a Substantive Due-Process Claim

By Glenn Smith, Patricia Fusco

Part of Constitutional Law For Dummies Cheat Sheet

Substantive due process involves whether the government has a legitimate basis for taking away a person’s right to life, liberty, or property. The basic question is, “Wait — does the government have a right to do this at all?

In substantive due-process cases, the courts use a baseline rationality test that considers: (1) Is the government’s interest legitimate? and (2) Is the government’s action a means to a legitimate end?