Due Process

Question 1

Substantive Due Process–Fundamental Rights

Answer 1

• Substantive Due Process pertains to the government’s power to regulate certain activities under the Due Process Clause of the 14th Amendment (applicable to the states) and the 5th Amendment (applicable to the federal government).

• Fundamental Rights Test: When the government attempts to regulate fundamental rights, it must satisfy strict scrutiny (the government must show that the law is necessary to serve a compelling government interest).
o Fundamental rights include: (1) the right to vote; (2) the right to interstate travel; and (3) the right to privacy, which encompasses the right to marry, procreate, use contraceptives, raise one’s children, keep the family together, and maintain custody over one’s children (but a State can create a rebuttable presumption that a married woman’s husband is the father of a child born during wedlock).

Question 2

Substantive Due Process–NON-Fundamental Rights Test

Answer 2

• Substantive Due Process pertains to the government’s power to regulate certain activities under the Due Process Clause of the 14th Amendment (applicable to the states) and the 5th Amendment (applicable to the federal government).

Non-Fundamental Rights Test: The government may regulate activities that DO NOT constitute fundamental rights so long as it meets the rational basis test (plaintiff must show that the law is not rationally related to a legitimate government interest).

Question 3

Procedural Due Process

Answer 3

• The Due Process Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the federal government) guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, certain procedures are required when the government deprives an individual of such rights.
• In analyzing a procedural due process claim, the court first determines whether a person’s life, liberty, or property has been taken from her. Then, the court determines what process, if any, was due before or after depriving such right. To determine what procedures are required, the court will balance the three Matthews v. Eldridge factors:

(1) the importance of the private interests being affected;
(2) the risk of error under current procedures and the value of additional procedures; AND
(3) the importance of state interests and the burdens on the government that would arise from the additional safeguards.

Normally, procedural due process requires notice and a hearing.