Fundamental Rights (Noneconomic Substantive Due Process)

Fundamental Rights (Noneconomic Substantive Due Process)

A counterpart to the now-discredited economic substantive due process, noneconomic substantive due process is still vital today. The concept has, over time, come to include a number of disparate lines of cases, and various labels have been applied to the rights protected, including "fundamental rights," "privacy rights," "liberty interests" and "incorporated rights." The binding principle of these cases is that they involve rights so fundamental that the courts must subject any legislation infringing on them to close scrutiny. This analysis, criticized by some for being based on extra-constitutional precepts of natural law,529 serves as the basis for some of the most significant constitutional holdings of our time. For instance, the application of the Bill of Rights to the states, seemingly uncontroversial today, is based not on constitutional text, but on noneconomic substantive due process and the "incorporation" of fundamental rights.530 Other noneconomic due process holdings, however, such as the cases establishing the right of a woman to have an abortion,531 remain controversial.

529 See, e.g., RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (Cambridge: 1977).

530 See supra Bill of Rights, "Fourteenth Amendment".

531 See Roe v. Wade, 410 U.S. 113, 164 (1973).

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