Introduction

The principle of due process of law is at the core of constitutional rights both in the United States and Brazil. Although the expression was adopted in Brazil’s 1988 Federal Constitution, its origin dates back to the English Magna Carta of 1215, and its contemporary application in the United States has directly influenced the protection of fundamental rights in various Western democracies. This article aims to analyze the impact of the concept of substantive due process, developed by the U.S. Supreme Court, on Brazilian law, emphasizing its relevance for the protection of fundamental rights and the limitation of state arbitrariness.

The analysis will be based on the concept of substantive due process as presented by Erwin Chemerinsky, one of the leading authorities in American constitutional law. Chemerinsky’s work is crucial for understanding the evolution of this principle in the United States and its potential impact on other jurisdictions, such as Brazil.

Due Process of Law in the United States: Substantive Aspects

In American law, the concept of due process of law is divided into two main aspects: procedural due process, which pertains to formal procedural guarantees, and substantive due process, which refers to material guarantees for the protection of fundamental rights. Both aspects are enshrined in the Fifth and Fourteenth Amendments to the U.S. Constitution, which ensure that no one will be deprived of “life, liberty, or property without due process of law.”

As Erwin Chemerinsky explains, substantive due process plays a crucial role in protecting against state arbitrariness. He argues that the government cannot irrationally interfere with rights deemed fundamental, even when formal legal procedures are followed. Throughout history, the U.S. Supreme Court has used substantive due process to protect rights that are not explicitly stated in the constitutional text but are considered essential to human dignity. Examples of these rights include the right to privacy, established in Roe v. Wade (1973), and the right to same-sex marriage, recognized in Obergefell v. Hodges (2015) (CHEMERINSKY, 2023).

Substantive Due Process and Its Application by the U.S. Supreme Court

The U.S. Supreme Court has historically played a central role in defining and expanding fundamental rights, particularly through substantive due process. This doctrine has been applied in cases involving individual and economic liberties, as well as in protection against laws that unduly restrict fundamental rights. Substantive due process thus emerges as a tool to ensure that the government does not use its authority in a manner that violates implicit but fundamental rights.

Chemerinsky explains that, in applying substantive due process, the Supreme Court uses different levels of scrutiny depending on the importance of the right in question. In cases involving fundamental rights, such as freedom of speech and the right to privacy, the court applies what is known as “strict scrutiny,” requiring the government to demonstrate that its action serves a compelling public interest and that no less restrictive means are available to achieve it (CHEMERINSKY, 2023).

This concept also allows the U.S. judiciary to assess the substance of certain laws, meaning that even if the government follows all the required formal procedures, a law may still be declared unconstitutional if it unjustifiably violates fundamental rights. This approach has significantly expanded the protection of rights in the United States, leading to the recognition of liberties that, while not explicitly stated in the constitutional text, are essential to democracy.

The Influence of American Due Process on Brazilian Law

Although the Brazilian legal system follows a civil law tradition, it has been heavily influenced by the American doctrine of due process of law, especially after the promulgation of the 1988 Federal Constitution. Article 5, section LIV, of the Brazilian Constitution provides that “no one shall be deprived of liberty or property without due process of law.” As in the American model, due process in Brazil has both formal and substantive dimensions.

In the Brazilian context, substantive due process is related to judicial review of government acts that, while meeting formal legal requirements, may violate fundamental rights. The application of this principle in Brazil is mainly manifested through the concepts of reasonableness and proportionality, which are frequently used by the Brazilian Supreme Court (STF) to assess the constitutionality of laws and administrative acts.

Examples of the application of substantive due process in Brazil can be seen in decisions involving the protection of social and economic rights. In various cases, the STF has declared laws unconstitutional that, while formally correct, disproportionately restricted access to fundamental rights, such as the rights to health and education. This approach is clearly influenced by American substantive due process, which allows the judiciary to go beyond a strictly procedural analysis and evaluate the substance of the laws in question.

Final Considerations

The doctrine of substantive due process, as developed by the U.S. Supreme Court and explained by Erwin Chemerinsky, has had a profound impact on the interpretation of fundamental rights in both the United States and Brazil. While in the U.S. this doctrine has evolved to protect implicit rights such as privacy and personal autonomy, in Brazil, substantive due process is used by the STF to ensure that laws and government acts respect fundamental rights in their essence.

The influence of the American model in Brazil is evident, particularly regarding the scrutiny of the reasonableness and proportionality of state actions. However, it is important to note that due process in Brazil has its own specificity, derived from its constitutional context and legal tradition, while constantly engaging in dialogue with foreign doctrinal and jurisprudential developments.

References

CHEMERINSKY, Erwin. Substantive Due Process. [PDF]. 2023.

Constituição da República Federativa do Brasil de 1988. Available at: https://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm.

Author: Fábio Medina Osório