Con Law Flashcards
Substantive Due Process
Guarantees fairness of laws by requiring that government action be reasonable and not arbitrary. Under the SDP, the government has a limited ability to regulate certain areas of human life, such as the substantive interests in life, liberty, or property
Due Process
The due process clauses provide the basis for recognizing enumerated rights. Binds the states through the Fourteenth Amendment, and the federal government through the Fifth Amendment. There are two types: substantive due process and procedural due process.
SDP- Fundamental rights & Level of Scrunity
Under SDP this refers to rights relating to marriage, living with one’s family, child bearing, child rearing, domestic travel, voting, and other First Amendment rights.
Strict scrutiny applies to fundamental rights under SDP –> The government action must be necessary to achieve a compelling government objective.
Note: There are special rules pertaining to abortion. They are MBE tested, but they have not yet been essay tested so they are not included in this outline.
SDP - Non Fundamental rights & Level of Scrunity
Under SDP this applies typically to social and economic regulations (e.g., education, employment).
Level of Scrutiny
Rational Basis Test: The challenger/plaintiff has the burden of proof that the government action is NOT rationally related to a legitimate governmental interest.
The Equal Protection Clause (EPC)
The EPC prohibits any state from denying any person within its jurisdiction the equal protection of the laws. The EPC is at issue when similary situated individuals are treated differently based on their classifications.
