Substantive Due Process and Privacy Defenses in Minnesota

Substantive vs. Procedural Due Process

Procedural due process is about how the government acts — notice, a fair hearing, and fair procedures. Substantive due process is about what the government can do at all: it places certain fundamental liberties beyond the reach of government regulation, no matter how fair the procedure. A substantive-due-process defense argues the State lacked the power to criminalize the conduct, period.

What this means for you: This is not an argument about a defect in your case's procedure. It's an argument that the law itself intrudes on a constitutionally protected liberty.

Fundamental Rights and Privacy

Courts have recognized that certain personal decisions and private conduct fall within a protected sphere of liberty and privacy. Where a law burdens a genuinely fundamental right, courts apply heightened scrutiny, and the government must justify the law with a compelling interest pursued through narrowly tailored means. Where no fundamental right is involved, a much more deferential standard applies, and most criminal laws easily survive.

What this means for you: The entire defense usually rises or falls on whether the conduct involves a recognized fundamental right. If it does, the government carries a heavy burden. If it doesn't, the challenge is very hard.

A Narrow and Evolving Area

Substantive due process is one of the most contested areas of constitutional law, and what counts as a protected fundamental right has shifted over time and continues to evolve. Courts are cautious about recognizing new fundamental rights, and the doctrine's boundaries are actively litigated.

How It Connects to Other Constitutional Defenses

Substantive due process overlaps with vagueness and overbreadth challenges and with specific constitutional protections (speech, religion, and others). Often a defense will raise more than one theory — for example, that a law is both overbroad and intrudes on protected liberty. The strongest approach depends on the statute and the conduct.

How It's Raised

Like other constitutional challenges to a statute, a substantive-due-process or privacy defense is typically raised by pretrial motion attacking the charge or the statute. It requires careful constitutional briefing and a clear identification of the protected interest at stake.

What this means for you: This is among the most advanced defenses, suited to cases where a law genuinely reaches into protected private conduct. It calls for experienced constitutional analysis.