MODERN SUBSTANTIVE DUE PROCESS: PRIVACY, PERSONHOOD & FAMILY

Question 1

Strict Scrutiny Framework for Analysis

Answer 1

1) Is there a fundamental right?
2) Is the constitutional right infringed?
3) Is the justification sufficient for government infringement?
4) Is the means sufficiently related to the purpose?

Question 2

Is there a fundamental right?

Answer 2

A fundamental right is an unemuerated substantive constitutional right. To determine if there is a fundamental right, the Court has looked to the text and intent of the framers, history and tradition (is this right traditionally protected by our society), deeply rooted moral consensus, effects on the political process. If the Court finds a fundamental right, it will apply strict scrutiny. If it finds that the right is not fundamental, it will apply rational basis review.

Question 3

Is the constitutional right infringed?

Answer 3

A fundamental right is infringed by the government when exercising that right is prohibited, or if there is a direct and substantial interference with the right.

Question 4

Is the justification sufficient for government infringement?

Answer 4

If a right is deemed fundamental, the government must present a compelling interest to justify the infringement. If a right is not fundamental, only a legitimate purpose is required for the law to be sustained. The government has the burden of persuading the court that a truly vital interest is served by the law in question.

Question 5

Is the means sufficiently related to the purpose?

Answer 5

If a right is deemed fundamental, the government must show that the law is necessary to achieve that objective – requires that the government prove it could not attain its objective through any less restrictive means. If the right is not fundamental, the government need only prove that the method of achieving its objective is reasonable.