Procedural and Substantive Due Process

Question 1

Procedural Due Process - Basic Principle

Answer 1

The due process clause of the fifth amendment, applicable to the federal government, and the 14th amendment, applicable to the states, provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property. Government negligence is insufficient to state a federal due process claim. Instead, there generally must be an intentional or reckless government action.

Question 2

Procedural Due Process - Life Liberty or property - Liberty

Answer 2

The term liberty is not specifically defined in the constitution. However, it has been held to include more than just physical freedom. For example, it includes the right to contract into engage and gainful employment.

A deprivation of liberty occurs if a person: loses significant freedom of action or is denied a freedom provided by the constitution or a statute.

However, injury to reputation itself is not a deprivation of liberty or property.

Question 3

Procedural Due Process - Life Liberty or property - property

Answer 3

Property includes not only personal and real property, whether it’s intangible or tangible, but also government benefits to which there is an entitlement (meaning, a reasonable expectation of continued receipt) understate, or federal law. An abstract need or desire for, or a unilateral expectation of, a benefit is not enough.

At one time, due process protected a right, but not a privilege, but this distinction has been rejected by the court. The proper terminology is entitlement.

Question 4

Procedural Due Process - What type of process is required? - basic requirements

Answer 4

Notice

An opportunity to be heard

And

A neutral decision-maker

Question 5

Procedural Due Process - What type of process is required? - notice

Answer 5

The notice must be reasonably calculated to inform the person of deprivation

Question 6

Procedural Due Process - What type of process is required? - hearing

Answer 6

The type and extent of the hearing are determined by a balancing test that weighs:

The importance of the interest to the individual and the value of specific procedural safeguards to that interest (meaning, the risk of error from the current procedures used and the benefits of additional procedures)

Against

The government interest in fiscal and administrative efficiency (meaning, the burden on the government from using additional procedures).

(Typically, the claimant should be given a pre-deprivation hearing, unless that would be impracticable. For example, if an American citizen is detained for war purposes, only a post deprivation hearing is required)

Question 7

Procedural Due Process - What type of process is required? - neutral decisionmaker

Answer 7

The decision-maker cannot have any actual bias (for example, having a financial interest in the decision or a relative that is a party to the case) or a serious risk of actual bias (like a large contribution to their campaign.)

Question 8

Procedural Due Process - Due process rights are subject to waiver

Answer 8

As a general rule, due process rights are presumably subject to waiver if the waiver is voluntary and made knowingly. 

Question 9

Substantive Due Process - basic principle

Answer 9

Substantive due process guarantees that laws will be reasonable and not arbitrary. Substantive due process derives from the due process clause of the fifth amendment and the due process clause of the 14th amendment, which apply to federal and state respectively. The same tests apply under each clause.

Question 10

Substantive Due Process - applicable standards

Answer 10

When a fundamental rate is limited, the law or action is evaluated under the strict scrutiny standard. In all other cases, the rational basis standard generally applies. For example, in cases involving economic rights, right education, the right to physician assisted suicide all apply rational basis.

Fundamental rights include: all First Amendment rights, the right to interstate travel, privacy related rights, and voting.

Fundamental rights can be a numerator or unenumerated in the constitution. Whether an unenumerated right is fundamental depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty. 

Question 11

Substantive Due Process - relationship between substantive due process and equal protection

Answer 11

Both substantive due process and equal protection guarantees require the court to review the substance of a law rather than the procedures employed.

Substantive to process: if a law limits the rights of all persons to engage in some activity, on the exam it is usually a due process question.

Equal protection: if a law treats a person or class of persons differently from others, on the MBE it is usually an equal protection problem, but on the MEE analyze under both equal protection and substantive due process.

Question 12

Substantive Due Process - relationship between substantive due process and equal protection - class of one

Answer 12

The Supreme Court has recognized, at least in relation to property regulation, then an equal protection claim can be brought not only for discrimination against the group, but also for arbitrary treatment of a single individual. However, the court has held that an at-will government employee who claims to be a victim of arbitrary discrimination, cannot use the class of one theory to make an equal protection claim.

Question 13

Substantive Due Process - privacy-related rights - generally

Answer 13

Various privacy rights, including marriage, procreation, contraception, and child rearing are fundamental rights. Regulations substantially burdening these rights are reviewed under the strict scrutiny standard. 

Question 14

Substantive Due Process - privacy-related rights - marriage - generally

Answer 14

A law prohibiting a class of adults from marrying is likely to be invalidated unless the government can demonstrate that the law is nearly tailored to promote a compelling, or at least important interest.

Question 15

Substantive Due Process - privacy-related rights - marriage - ban on interracial marriage

Answer 15

A ban on interracial marriage triggers, and fails, strict scrutiny.

Question 16

Substantive Due Process - privacy-related rights - marriage - same-sex marriage

Answer 16

The fundamental liberties guaranteed by the 14th amendment, both the due process and equal protection clauses, require every state to issue marriage licenses for two people of the same sex and recognize same-sex marriages performed elsewhere. Bans on same-sex marriage are not based on any legitimate interest related to protecting or promoting marriage.

Question 17

Substantive Due Process - privacy-related rights - marriage - special test in prisoners’ rights cases

Answer 17

A statute restricting the rights of prison and maids to marry will be appealed if reasonably related to a legitimate penological interest 

Question 18

Substantive Due Process - privacy-related rights - marriage - minimum age requirements

Answer 18

Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.

Question 19

Substantive Due Process - privacy-related rights - procreation - generally

Answer 19

Individuals have a fundamental right to reproduce that cannot be limited by the state.

For example, the Supreme Court has held at a state may not force sterilization on repeat offenders of crimes of moral turpitude.

Question 20

Substantive Due Process - privacy-related rights - procreation - use of contraceptives

Answer 20

A state cannot prohibit the distribution of non-medical contraceptives to adults or minors.

Question 21

Substantive Due Process - privacy-related rights - procreation - rights of parents

Answer 21

Parental rights are fundamental rights. They include the companionship, care, custody, and upbringing of children.

Examples: states cannot require public school education or education in English, and parents have a fundamental right to forbid visitation by a child grandparents.

Question 22

Substantive Due Process - privacy-related rights - procreation - keeping extended family together

Answer 22

There is a fundamental right for family members, even extended ones, to live together. However, this right does not extend to unrelated people.

Question 23

Substantive Due Process - privacy-related rights - procreation - abortion

Answer 23

The Supreme Court recently overruled the line of cases that held that the constitution protects a woman’s right to obtain an abortion. As there is no longer a fundamental right to an abortion under the federal constitution, the matter is left to the states to legislate. The court has stated that laws restricting abortions are entitled to a strong presumption of validity under rational basis review.

Further, the court has identified several legitimate state interest that can support a restriction, namely, respecting and preserving prenatal life at all stages of development, protecting maternal health and safety, eliminating particularly gruesome or barbaric medical procedures, preserving the integrity of the medical profession, mitigating fetal pain, preventing discrimination based on race, gender or disability.

Question 24

Substantive Due Process - privacy-related rights - procreation - obscene reading material

Answer 24

The right to privacy includes freedom to read obscene materials in one’s home, except for child pornography, but not the right to sell purchase or transport such material.

Question 25

Substantive Due Process - privacy-related rights - procreation - collection and distribution of personal data

Answer 25

The states may reasonably gather and distribute information about its citizens. Thus, there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed.

Question 26

Substantive Due Process - Right to travel - interstate travel - generally

Answer 26

An individual has a fundamental right to travel from state to state and to be treated equally after moving into a new state.

Note though that not every restriction on the right to cross state lines is an impairment of the right to travel.

Example, tolls for entering or leaving a state would be invalid, but tolls for using a state roads are fine. Compare: increased penalties for a parent and abandoning their child and leaving the state are valid.

Question 27

Substantive Due Process - Right to travel - interstate travel - right to equal treatment in a new state

Answer 27

A problem arises when a state imposes, a minimum durational residency requirement for receiving its benefits or otherwise dispenses of state benefits based on the length of time a person has resided in the state. It isn’t clear whether the court always reviews these regulations under the strict scrutiny standard. Just follow the examples provided in the other cards. 

Question 28

Substantive Due Process - Right to travel - right to international travel

Answer 28

International travel is not a fundamental right. It is, however, protected from arbitrary federal interference by the fifth amendment due process clause. The rational basis standard applies. For example, barring travel to pandemic hotspots is okay.

Question 29

Substantive Due Process - right to vote - generally

Answer 29

The right to vote is a fundamental right. As a result, restrictions on that right, other than on the basis of resident, age, and citizenship, are invalid unless they can pass strict scrutiny. 

Question 30

Substantive Due Process - right to vote - restrictions - property ownership

Answer 30

Conditioning the right to vote or hold office on ownership of property is usually invalid.

Exception: special purpose, elections, like water storage districts. 

Question 31

Substantive Due Process - right to vote - restrictions - residency requirements

Answer 31

Reasonable time periods for residency, for example, 30 days, our valid. Note that Congress can override state residency requirements in federal elections, and substitute its own.

Question 32

Substantive Due Process - right to vote - restrictions - identification

Answer 32

A state may require voters to show a government issued voter ID.

Question 33

Substantive Due Process - right to vote - restrictions - poll taxes

Answer 33

Poll taxes are unconstitutional

Question 34

Substantive Due Process - right to vote - restrictions - primary elections

Answer 34

States can require early registration to vote in primaries. However, states can’t prohibit political parties from opening their primary elections to anyone, whether or not with the party.

Question 35

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - generally

Answer 35

The one person one vote principal applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.

Question 36

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - state and local elections

Answer 36

For state and local elections, the population of voting districts must be substantially equal. That is, the variance in the number of persons included within the district can’t be unjustifiably large, but the districts don’t need to be within a few percentage points of each other. A state must show that a deviation from mathematical equality is reasonable and tailored to promote State interest. For example, preserving political subdivisions. However, a 10% variance is presumptively valid.


Question 37

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - congressional elections

Answer 37

States must use almost exact mathematical equality when creating congressional district within the state, even a 0.7% variance was invalidated. This isn’t true, however, when Congress abortions representatives among the states. Congress is good. Faith method for portioning representatives gets more difference and is not subject to precise mathematical formula, as are state plans. 

Question 38

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - districts can be measured using total population

Answer 38

When states measure the equality of their districts, they don’t have to count only person eligible to vote. Counting the total population is sufficient and the best serves the one person one vote principal.

Question 39

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - exception - appointed officials and officials elected ‘at large’

Answer 39

The apportionment requirement is inapplicable to officials who are appointed or elected at large.

Question 40

Substantive Due Process - right to vote - dilution of right to vote - one person, one vote principle - exception - special purpose election

Answer 40

The one person, one vote principal doesn’t apply to elections of officials who do not exercise, normal governmental authority, but rather deal with matters of special interest in the community. For example, water storage districts. 

Question 41

Substantive Due Process - right to vote - dilution of right to vote - gerrymandering

Answer 41

Race, and presumably other suspect classifications, cannot be the predominant factor and drawing the boundaries of voting district unless the district plan can satisfy strict scrutiny.

Compare that to political gerrymandering. Meaning, drawing district lines to achieve certain political results, which sometimes results in districts with the contour of a mythical salamander. Political gerrymandering is a non-justable political question. 

Question 42

Substantive Due Process - right to vote - dilution of right to vote - states may use independent commissions to draw districts

Answer 42

To avoid gerrymandering, states can use independent commissions to adopt congressional districts, rather than allowing the state legislature to redistrict. 

Question 43

Substantive Due Process - right to vote - candidates and campaigns - candidate qualifications

Answer 43

Fee must not preclude indigence: states can’t charge candidates a fee that makes it impossible for indigents to run for office 

Restrictions on ability to be a candidate: a ballot access regulation must be a reasonable, nondiscriminatory means of promoting important state interests. A state may require candidates to show reasonable support to have their names placed on the ballot.

Question 44

Substantive Due Process - right to vote - candidates and campaigns - campaign funding

Answer 44

The government can allocate more public funds to the two major parties than to minor parties for political campaign.

Question 45

Substantive Due Process - Right to Bear Arms - right to self-defense

Answer 45

The second amendment protects the rights of individuals to bear arms for self defense. This includes the right to keep a handgun at home and the right to carry a handgun in public.

Question 46

Substantive Due Process - Right to Bear Arms - right to self-defense - gun permits

Answer 46

For a gun permit law to be constitutional, the criteria must be clear. A lot that gives an official discretion and granting permits is unconstitutional. Neither may a state require someone who is applying for a concealed carry permit to show that they need it for safety, such a requirement is unconstitutional.

Question 47

Substantive Due Process - Right to Bear Arms - standard of review

Answer 47

If a regulation burdens and individuals right to keep and bare arms, then the government must justify the regulation by demonstrating it is consistent with the countries historical tradition of firearm regulation. Simply positing at the regulation promotes an important interest is not sufficient.

Question 48

Substantive Due Process - Right to fair notice

Answer 48

The fundamental principle of our legal system is that laws that regulate people or entered his massive fair notice of conduct that is forbidden or required. A regulation that fails to get fair notice violates the due process clause.

Question 49

Substantive Due Process - unspecified rights - intimate sexual conduct

Answer 49

The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature. While the court has not stated what standard of review should be applied to such laws, it has indicated that they can’t even pass the rational basis test because they lack legitimate state interest. 

Question 50

Substantive Due Process - unspecified rights - right to refuse medical treatment

Answer 50

The right of a mentally confident adult to refuse medical treatment is part of the individuals liberty under the fifth and 14th amendment due process clauses. Again, however, the Supreme Court has not ruled that this aspect of liberty is a fundamental right and has not explained which standard of review should be used.

Compare: no fundamental right to physician assisted suicide

Compare: states can compel vaccination against contagious diseases

Question 51

Procedural due process- access to courts: indigent plaintiffs

Answer 51

Government fees, for example, court, filing fees, must be waived when imposition of a fee would deny a fundamental right to the indigent. Thus, for example, a marriage license or divorce court, filing fee or filing fee for candidates for electoral vote, must be waived. However, fees can be imposed when non-fundamental rights are involved, for example, fees for a bankruptcy discharge or review of welfare termination.