INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION Flashcards
1
Q
RELATIONSHIP BETWEEN SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
A
- DPCs & EPC guarantee fairness of law
- Substantive due process guarantees laws will be reasonable & not arbitrary, & equal protection guarantees that similarly situated persons will be treated alike.
- Both guarantees require Ct to review substance of the law rather than procedures employed.
2
Q
Substantive Due Process
A
- Where a law limits liberty of all persons to engage in some activity, it is a due process question.
3
Q
Equal Protection
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- Where a law treats a person/class differently from others, it is an equal protection question
- Ex. equal protection claims may be brought by a class w/ as few as one member
- However, an at-will gov employee who claims to be a vic of arbitrary discrimination cannot use “class of one” theory to make an equal protection claim.
4
Q
Examples
A
- If a law prohibits all persons from purchasing contraceptive devices, there is a due process issue;
- If law prohibits only purchases by unmarried persons, there is an equal protection issue.
- A state’s refusal to have any publicly funded schools raises a due process issue;
- State law that establishes separate schools for children of different races raises an equal protection issue
5
Q
Note—Clauses Not Necessarily Mutually Exclusive
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- Since both clauses protect against unfairness, both may be appropriate challenges to the same governmental act, & a discussion of both may be appropriate in an essay answer.
- On MBE, however, examiners will probably not include both as alternatives in same question.
- The above approaches can be used as a rough guideline of when each clause applies.
6
Q
WHAT STANDARD OF REVIEW WILL THE COURT APPLY?
A
- Ct employs 1 of 3 tests in reviewing laws under these clauses, depending on circumstances.
7
Q
Strict Scrutiny (Maximum Scrutiny)
A
- Strict scrutiny standard: a suspect classification/ fundamental right is involved.
- Law will be upheld only if it is NECESSARY to achieve a COMPELLING GOV purpose.
- Always consider whether less burdensome means for accomplishing legislative goal are available.
- Most governmental action examined under this test fails.
8
Q
Burden of Proof on Government
A
- Strict scrutiny standard: gov has burden of proving law is necessary.
- Ct will not allow a loose fitting law (if law reaches more people/conduct than necessary (overinclusive) or does not reach all the people/conduct sought to be regulated (underinclusive), it will likely be struck down).
9
Q
Alternative Strict Scrutiny Language
A
- SC’s language sometimes varies when expressing strict scrutiny standard.
- It commonly uses language such as “narrowly tailored to achieve a compelling government purpose”/“necessary to achieve an overriding government purpose” in addition to “necessary to achieve a compelling government purpose.”
- For bar exam purposes, these varying iterations all have the same meaning.
10
Q
Intermediate Scrutiny
A
- Intermediate scrutiny: classification based on gender/legitimacy is involved.
- Law will be upheld if it is SUBSTANTIALLY RELATED to an IMPORTANT GOV purpose.
- Unclear who has burden of proof, but in most cases, seems to be gov
11
Q
Rational Basis (Minimal Scrutiny)
A
- Rational basis: used whenever other 2 standards are not applicable (i.e., most legislation).
- Law will be upheld if RATIONALLY RELATED to LEGIT INTEREST.
- It is difficult to fail this test, so most governmental action examined under this standard is upheld unless it is arbitrary/irrational.
12
Q
Burden of Proof on Challenger
A
- Rational basis standard: laws are presumed valid.
- Therefore, challenger has burden of proof.
- This is a very difficult burden to meet, given deference Ct gives to legislatures under rational basis standard. (See below.)
13
Q
Deference to Legislature
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- Rational basis standard: Ct will usually defer to a legislature’s decision that a law is rational.
- Loose fitting laws are permissible here:
- The law need not be the best law that could have been written to achieve legislative goal.
- Indeed, it need not go far at all toward a conceivable legislative goal
- Ct will uphold a law taking a “first step” toward any legit goal, even if Ct thinks law is unwise.