17. Substantive Due Process (5A/14A)

Question 1

What is required for substantive due process?

Answer 1

1) Not limit everyone’s rights

2) Notice

Question 2

Which constitutional amendment applies to substantive due process?

Answer 2

5A Due Process Clause - Federal government

14A Due Process Clause - State government

Question 3

What standard of review applies in substantive due process?

Answer 3

Fundamental rights
- Strict scrutiny

Other rights
- Rational basis

Question 4

What are the types of standards of review?

Answer 4

Strict scrutiny

1) Narrowly tailored/Necessary to achieve
2) Compelling government interest
3) Burden of proof: Government

Intermediate scrutiny

1) Substantially related
2) Important government interest
3) Burden of proof: Government

Rational basis

1) Rationally related
2) Legitimate government interest
3) Burden of proof: Challenger

Question 5

What rights of privacy cannot be limited?

Answer 5

Marriage

Parental rights

• Child custody
• Child support

Procreation

Contraceptives

Sex (non-commercial)

Obscenity
- Not child porn sale

NOT individual data collection

Question 6

What basis can rights of voting be limited?

Answer 6

Age

Residency (reasonable period)

Citizenship

Gerrymandering (division of voting districts)
- NO unjustifiably large variance between no. voters per district

Question 7

What basis can rights of voting not be limited?

Answer 7

Political parties’ primary election

Poll taxes

Conditional property ownership

Question 8

What rights of interstate travel can be limited?

Answer 8

Voting (must be resident after 1 month)

Divorce (must be resident after 1 year)

Tuition reduction

Question 9

What rights of interstate travel cannot be limited?

Answer 9

Voting (no need to be resident after 1 year)

Welfare benefits (no need to be resident after 1 year)

Medical care (no need to be resident after 1 year)

Question 10

What rights of privacy can be limited?

Answer 10

Abortion (rational basis)

• Pre-viability (fetus not likely to survive): Prevent abortion with NO undue burden on mother
• Post-viability (fetus likely to survive): Prevent abortion if not necessary to mother’s health

Question 11

When may a law not be rationally related to a legitimate government purpose?

Answer 11

Completely arbitrary

Motivated by animus towards citizens