Substantive Due Process and Governmental Regulation

A Tract Book Essay

By

Anthony J. Fejfar, B.A., J.D., Esq., Coif

© Copyright 2007 by Anthony J. Fejfar

It has sometimes been thought that Substantive Due Process, often associated

with the United States Supreme Court case of Lochner v. New York, is no longer valid.

This is not true. Instead, Substantive Due Process has simply fallen into disuse as the

Court has focused on Equal Protection analysis.

Substantive Due Process is based upon the metaphysical notion of Substance. What

this means in relation to the law is that the “Guts” of the law must be rationally related to

a legitimate state interest in order to meet the requirements of Substantive Due Process.

Some might argue that the rationality requirement of Substantive Due Process is

such a weak standard, that it has no enforcement “teeth” at all. It is argued that it will be

a rare day when a law will not meet the rational basis test. This is not true. Consider

the following example.

A Psychiatric Ward is regulated by State Nursing Home Regulations. Those

regulations state that the patient must wear a clean set of clothes every day, and that the

patient must do his or her own laundry once a week. Additionally, the Nursing Home

regulations also provide that a patient cannot have more than 5 changes of clothes in his

or her closet at a time. The foregoing set of regulations clearly does not meet the

requirements of Substantive Due Process, as will be explicated below.

 Let us assume that Bill is a patient in a Psychiatric Ward. His assigned laundry

day is Monday morning. Bill has precisely 5 changes of clothes as per the regulation.

Bill does his laundry on Monday morning and then puts his clean clothes in his closet.

Bill then changes his clothes every day as per the regulation. See the chart below after

doing the laundry: (The number next to the Clothes refers to the individual set of clothes

not a total).

Wearing Dirty Clean in Closet

Monday 1 Clothes None 2,3,4,5 Clothes

Tuesday 2 Clothes 1 Clothes 3,4,5 Clothes

Wednesday 3 Clothes 1,2 Clothes 4,5 Clothes

Thursday 4 Clothes 1,2,3 Clothes 5 Clothes

Friday 5 Clothes 1,2,3,4 Clothes None

Saturday Naked No Clothes 1,2,3,4,5 Clothes None

Sundary Naked No Clothes 1,2,3,4,5 Clothes None

Monday pre wash Naked no Clothes 1,2,3,4,5 Clothes None

Monday post wash 1 Clothes None 2,3,4,5 Clothes

Now, in studying the foregoing chart it is clear that it is impossible to have clean

clothes to wear all week when you doing your laundry only once a week and you have

only 5 sets of clothes total. By Saturday all 5 sets of your clothes are dirty and cannot

be worn and your laundry day is not until Monday, two days later. This is clearly an

irrational regulation, and, governmental regulators are quite capable of making stupid

mistakes like this on a regular basis. Obviously, the regulation should state that the

person should have 8 sets of clothes to wear, in order to avoid running out of clothes at
the end of the week. Accordingly, it is clear that there is a place for Substantive Due

Process in the law. Also keep in mind that the situation created here is a human rights

and civil rights violation that could be remedied by a lawsuit in Federal District Court

under 42 U.S.C. section 1983.