Modern Substantive Due Process

Question 1

What does the 9th amendment do?

Answer 1

The enumeration in the Constitution of certain right, shall not be construed to disparage other rights retained by the people (supreme rarely invokes)

a. Generally not seen as a source of rights (there are no 9th amend. rights)
b. Provides textual justification for court to protect nonenumerated rights (ex. right to privacy)

Question 2

Framework for Analyzing fundamental right!!!

STEP 1

Answer 2

1. Is there a fundamental right?
   a. If a right is deemed fundamental=strict scrutiny if not=rational basis
   b. Fundamental rights are those that are rooted in our nation’s traditions and the collective consciousness of our people OR those that are essential to the pursuit of happiness by a freeeman
   c. Look to prior cases to see what has been deemed fundamental→how much is credibly encompassed within the scope of the prior decisions (specific or abstract→very few will be specifically on point)
   d. Supreme Court has expressed a preference to articulate something under a more specific right if it is available

Question 3

Framework for Analyzing fundamental right!!!

STEP 2

Answer 3

Is the Constitutional Right Infringed?

a. If there is a fundamental right, has the government infringed it?
b. In evaluating whether is a violation of the right look to the directness and the substantiality of the interference (little has been said about what is substantial and direct)
c. Interference can be on the face or in application

Question 4

Framework for Analyzing fundamental right!!!

STEP 3

Answer 4

Is there a sufficient justification for the government’s infringement of a right?

a. If a right is deemed fundamental, the gov. must present a compelling interest to justify an infringement (strict scrutiny)
b. If the right is not fundamental (rational basis)

Question 5

Framework for Analyzing fundamental right!!!

STEP 4

Answer 5

Is the means sufficiently related to the purpose?

a. For strict scrutiny it is not enough for the gov. to prove a compelling purpose behind the law, the gov. must also show that the law is necessary to achieve the objective→no less restrictive means
b. for rational basis review, the means only has to be a reasonable way to achieve the goal and the gov. is not required to use the least restrictive alternative

Question 6

West Coast Hotel

Answer 6

Signals end of Lochnerism

• Fixed minimum wage for women and minors
• Does wage regulation violate women’s freedom of contract where Constitution does not speak of freedom of contract?
• Court says: regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.
• Court NOW ACCEPTS that state has interest in preventing the exploitation of workers
• New policy of judicial deference to government economic regulation. State gov. not limited to regulating only to advance explicit police powers.
• No freedom to contract

Question 7

Carolene Products

Answer 7

-Filled Milk Act→prohibits substance obtained by mixing milk and vegetable oil.

• Economic regulation should be upheld so long as they are supported by a conceivable rational basis, even if it cannot be proved it was the legislatures actual intent.
• Deference to legislature regarding laws that govern ordinary commercial transaction. Courts indulge a presumption of Constitutionality.
• Applies Rational Basis
• FOOTNOTE 4→ courts generally will defer to leg. And presume that laws are constitutional. If law interferes w/ individual rights or restricts the ability of the political process to repeal undesirable leg. Or discriminates against “discrete and insulate minority” the deference will be replaced by more searching judicial inquiry.

Question 8

Lee Optical

Answer 8

• Law requires prescription from optometrist to get new frames. Optician can’t just put them in.
• Court says: Leg. Might have a number of conceivable reasons for this law. This is enough. Indulging leg.
• CURRENT STATUS OF COURT EVAL. OF DUE PROCESS: “Law need not be in every respect logically consistent w/ its aims to be constitutional. It Is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”