Substantive due process is a fundamental legal theory enumerated in the U.S. constitution. The principle of substantive due process states that the due process clause in the constitution should protect the substantive right of a citizen. Substantive rights are those general rights that reserve to an individual the power to possess or to do certain things. Freedom of speech and expression is an example of a substantive right.
The term ‘substantive due process’ is commonly used in two ways:
1. to identify a particular line of cases;
2. to signify a particular attitude towards judicial review.
There are mainly three types of rights that are included under the substantive due process clause. They are:
1. the rights enumerated in the first eight amendments in the Bill of Rights. For example, the Eighth Amendment of the U.S. Constitution;
2. the right to take part in the political process. For example, voting rights, right to association; and
3. the rights of discrete and insular minorities. [United States v. Carolene Products Co., 304 U.S. 144 (U.S. 1938)].