Substantive DP Flashcards
Scrutiny Standards
STRICT SCRUTINY
- Burden on Gov’t
- Applies to Fundamental Rights
- Privacy (Marriage, Obscenity, Parental/Family, Procreation, and Sexual Relations)
- Voting
- Interstate Travel
- 1A Rights
- Right to Refuse Med Treatment
RBT
- Burden on Plaintiff
- Anything that isn’t considered a fundamental right
Substantive DP: Sexual Relations Timeline
Bowers: Analyzed under DP; not fundamental, law passes RBT
Romer: Analyzed under EPC bc law is based on distinction; failed RBT
Lawrence: analyzed under DP; overturned Bowers; fundamental right/liberty interest extends to private adult acts; didn’t pass SS; didn’t analyze under EP
Substantive DP: Abortion Evolution
Griswold: Fundamental Right to Privacy through Penumbras
Griswold extends right to privacy to the use of contraceptives; Roe and Casey come in to extend that right of privacy to obtaining abortions.
Roe: Fundamental Right to Privacy, Subject to SS, use Trimester Framework
Casey: Fundamental Right, use SS and Undue Burden Test
Dobbs: No Fundamental Right, RBT applies
United States v. Carolene Products : Court rejected a due process challenge to a federal prohibition of the interstate shipment of “filled milk” (skim milk mixed with non milk fats) as an adulterated article of food whose sale constituted a fraud upon the public
Stone Majority:
Challenging the rational basis of economic legislation would be a difficult task
The existence of facts supporting the legislative judgment creates a presumption that it rests on some rational basis and is t/f constitutional; unless in the light of facts made known or generally assumed to preclude the assumption and show it does not rest on rational basis
From the record; it is at the very least debatable and reasonable minds can differ on whether commerce of filled milk should be regulated so its up to Congress to decide
But there may be narrower scopes for operation of the presumption when legislation appears on its face to be within a specific prohibition of the constitution, but that’s not our problem right now
Lochner v. New York: NY legislature passed a law limiting the amount of hours bakers could work in a day. Plaintiff challenged his conviction for violating the law twice.
Majority: The freedom to contract in relation to employment contracts is part of the liberty of the individual protected by the 14A.
States can make laws that relate to the health and safety but cannot restrict people’s liberties in doing say
Weighing the scale of justice + balancing competing interests
Harlan’s Dissent: Don’t balance interests, instead, balance whether the state’s law was an appropriate means to an end for their goal
Allow the legislature to decide if there is room for debate
Holmes Dissent: Substantive DP is stupid; this is more of a laissez faire situation
Note: What if there is a big social shift/event that moves away from the courts being allowed to decide which freedoms of contract were protected or not?
This actually happens → With the Great Depression, as Omar can tell us as an eye-witness, contracting laws were passed in the efforts of minimizing the crisis
Kerry v. Din: Din, a U.S. citizen living in the U.S., was married to Berashk, an Afghan citizen. Berashk applied for a visa to live in the U.S., but the United States Department of State denied the request based on the terrorist-activity provision of the I.N.A. Din brought suit alleging that the denial violated her DP of law in that it prevented her from living in the United States with her husband.
Majority: A citizen does not have a DP right to living with their spouse in the United States.
Due Process rights encompass rights to life, liberty, and property.
The Court does not deprive Din of any of the following fundamental rights: the opportunity to marry, the opportunity to live in the United States, or the opportunity to live with her husband.
Rather, the government’s visa denial deprives Din the opportunity to live in the United States with her husband. This is not a fundamental right implicating due process of law.
Dissent: The Court should look at this through the lens of procedural due process rather than substantive due process.
The opportunity to marry, the opportunity to live in the United States, and the opportunity to live with a spouse are fundamental rights. As a result, due process extends to Din’s right to live in the United States with her husband.
The Gov’t did violate Din’s DP
The statute cited by the government contains several subsections with dozens of potential reasons for denial and it failed to specify on which section it relied
The government did not provide any factual basis for its application of the statute
Note: There are boundaries to liberty
Griswold v. Connecticut:
RIGHT OF PRIVACY
Griswold was the Exec Director of PPL of CT. CT had laws that prevented using contraception or assisting someone else in using contraception. Griswold was arrested for giving medical advice to married people about preventing conception. CT argued that their purpose for having the statute was to prevent adulterous relationships.
Majority Holding (Douglas) → YES there is an implied right of privacy that protects the intimate relations of married people.
Reasoning:
Many other amendments discuss various “zones of privacy” that are impliedly created by the fundamental constitutional guarantees in the Bill of Rights.
The protected “zones of privacy” are considered “penumbras” because they are not explicitly written in the Constitution but they naturally/impliedly follow as a result of the guarantees that are explicitly enumerated. (Claus used the analogy of a shadow to describe penumbras as extensions of the express rights, but they still have limitations)
The Connecticut law seeks to prohibit the use of contraceptives in a marriage which violates a protected zone of privacy.
Justice Goldberg Concurrence:
The 9th amendment says that there are other rights that the Constitution acknowledges deserves protection so it follows that the enumeration of SOME rights should not be the reason we don’t protect others.
The right of privacy in marriage is rooted in the traditions and collective conscious of people and is therefore a fundamental right.
CT offers a legitimate purpose as justification for its statute (preventing adulterous relationships), but fails to consider less-intrusive means for accomplishing this purpose.
Harlan Concurrence:
The right to use contraception in marriage is supported by the Due Process Clause, therefore the majority is taking part in inappropriate judicial activism by inferring a new right of privacy from the Constitution.
White Concurrence:
CT does not disagree with the use of contraceptives as a whole, but rather with their use in adultery and fornication. However, the prevention of these relationships is the stated purpose of the CT statute, making the statute sweepingly broad and over-inclusive as to be rendered unconstitutional.
Black Dissent:
There is no basis in the Constitution for the right of privacy
Stewart Dissent:
The CT law is silly and unenforceable BUT it is not unconstitutional. It is not the duty of the Court to strike down legislation with which it simply disagrees.
KEY TAKEAWAY → There are protected zones of privacy (such as a right to privacy in a marriage) that are considered penumbras because they are not explicitly written in the Constitution but they naturally/impliedly follow as extensions of the rights that are enumerated in the Constitution.
Roe v. Wade
RIGHT OF PRIVACY
TX law made it illegal to obtain an abortion unless it was medically necessary to save the Mother’s life. Roe sued under right to privacy.
Issue: Does the right to privacy protect abortions?
Holding: The Constitutional right to privacy protects a woman’s right to choose to have an abortion.
Court reasoning:
Court recognized the right of privacy as a fundamental right that called for strict scrutiny that calls for narrow tailoring and compelling state interest.
Abortion was legal through the 1st trimester of pregnancy; the state interest to protect potential life is not compelling until the point of viability.
Class notes: the court is striking a balance between the individual interest and the life of the fetus
Also, the Court used substantive DP to connect to the text of the Const.
Dissent (White): Nothing in the language or history of the Constitution supports the Majority.
Dissent (Rehnquist): The right to privacy is not implicated→should be the rational basis test. Also regulation powers over abortion should be left to the states.
KEY TAKEAWAY: Abortion = right to privacy→strict scrutiny: compelling interest and narrow tailoring
Planned Parenthood v. Casey
RIGHT OF PRIVACY
PA had 3 key regulations: (1) informed consent with 24 hour delay; (2) Minor’s required to have parental consent with an exception for judicial bypass; (3) required Husband’s signature of consent.
Holding: (1) and (2) are constitutional because the state has a compelling interest for informed consent and parental autonomy but (3) is unconstitutional because it put an undue burden on the wife/mother.
Court Reasoning (O’Connor):
The Court reaffirmed Roe and emphasized a reliance interest despite acknowledging that it might not have used Roe reasoning
The Court recognized that the state has a legitimate interest to protect Mother and potential life;
The Court ditched the trimester framework as too rigid and created the undue burden test. The court chooses to analyze using undue burden and strict scrutiny.
The question becomes whether the regulation puts a substantial obstacle on obtaining an abortion→balance test: whether the regulation is more burdensome than beneficial.
Concurrence/Dissent (Stevens): should not overturn the trimester framework.
Concurrence/Dissent (Blackmun): right to abortion should be established as a fundamental right unable to be overturned by future decisions or voter initiatives.
Concurrence/Dissent(Rehnquist): Should be the rational relationship test.
Concurrence/Dissent(Scalia): Abortion decisions should be left to state legislatures.
KEY TAKEAWAY: It is important to be consistent otherwise a lot of change would be unsettling to society and undermine confidence in the court. ALSO, undue burden test replaces trimester framework.
Dobbs v. Jackson Women’s Health Organization:
The law being challenged = a Mississippi law banning abortions for pregnancies beyond 15 weeks.
State argued that their state interest was in protecting unborn life.
Jackson Women’s Health Org. argued that the law unconstitutionally limited the right to abortion.
Majority Holding (Alito) → NO the right to abortion is neither explicitly written in the constitution nor is it implied by the language of the constitution. Overruled Roe and Casey.
Reasoning:
In determining what the 14th A means by liberty, substantive due process requires the Court to examine whether the right is deeply rooted in American history and tradition and essential to the American scheme of ordered liberty.
Abortion is not deeply rooted in American history and tradition because it was criminalized prior to Roe v. Wade.
Abortion is distinct from other rights that are supposedly rooted in privacy and autonomy because of the moral questions raised by ending fetal life.
You don’t need to use Equal Protection to decide this case because the Mississippi law is not intentionally targeting women just because they are women, it is banning a particular thing that is more likely to affect women → this doesn’t violate Equal Protection because the reasons for enacting the statute aren’t to be mean to a certain group of people (women) and, instead, the purpose of the statute is the state’s interest in protecting fetal life.
States should be able to choose what laws they have regarding abortions & constitutional challenges to state abortion rules must be evaluated under a rational-basis review.
Roberts Concurrence:
The Court could have decided the constitutionality of the MS statute simply by discarding the viability rules from Roe and Casey instead of overruling them completely because this action violates the principles of judicial restraint that caution against deciding more than is necessary to resolve a case.
Thomas Concurrence:
We need to get rid of substantive due process all together and due process should be exclusively about procedure and not freedoms.
This means that we should also get rid of all cases that were decided using substantive due process.
Kavanaugh Concurrence:
Don’t listen to Thomas, we need to keep substantive due process.
This decision simply means that the Supreme Court is no longer the decision maker about when abortion should be legal; it is the state’s choice.
This decision doesn’t necessarily allow states to bar residents from traveling to other states to get an abortion or to retroactively punish someone who previously obtained an abortion.
Breyer Dissent:
In overruling Roe and Casey, the Court has deprived women of their rights and subjected them to government control over their pregnancies.
The Court’s conclusion that abortion regulations need only survive rational bases = states will enact more and further restrictions → these restrictions will impact poor women the most because they lack the resources to travel to states where abortions are still legal
The rights recognized in Roe and Casey are linked to other rights involving bodily integrity, family relationships, and procreation → these rights are all rooted in the American tradition of allowing individuals the freedom to make private choices for their lives
Constitutional protections must evolve other time as the world evolves
Overruling Roe and Casey shows no respect for precedent, is not grounded in new legal or factual developments that cast doubt on those cases, will alter people’s lives in drastic ways, will undermine the Court’s legitimacy, and will break public trust in the rule of law
KEY TAKEAWAY → We need to look to history and tradition when deciding if a law violates
Lawrence v. Texas: Texas officers entered a private residence in response to a reported weapons disturbances. There they saw Lawrence and another guy having sex. They were arrested, charged, and convicted of “deviate sexual intercourse, namely anal sex, with a member of the same sex.” under Tex Penal Code §21.06
The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship.
Holding (Kennedy): Liberty protects the person from unwarranted gov intrusions in private places- the State is not omnipresent in the home.
O’ Connor Concurrence: I don’t join the court in overruling Bowers. But texas statute is unconstitutional based on the equal protection clause. It criminalize gay anal sex but not straight anal sex. Whether a sodomy law that is neutral both in effect and application would violated DP is an issue that need not be decided today.
Scalia Dissent: Substantive dp prohibits states from infringing fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest. We have held repeatedly that only fundamental rights qualify - rights that are deeply rooted in this nation’s history and tradition. Homosexual sodomy is not that. The law would survive rational basis because we always outlaw things that are immoral like “fornication, bigamy, adultery, incest, bestiality, and obscenity” Also I dont care what foreign countries think.
Thomas Dissent: This is a silly law. I would repeal it. Not a worthy way to expend valuable law enforcement resources. But not my job. It’s anti-democratic. There is no right of privacy in the constitution.
Obergefell v. Hodges: State refused to recognize same sex marriage that was okay in another state
Rule of Law: Under the DP and EP Clauses of the 14 Am, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples. (liberty limit)
Holding (Kennedy): Right to marry = fundamental right inherent in liberty of the person, and under DP and EP couples of same-sex may not be deprived of that right and that liberty.
History: of marriage has changed over time (used to have arranged)
Safeguards children and families and draw meaning from related rights of child rearing, procreation, and education
Laws harm and humiliate children of same sex couples
These couple lose out on state benefits and become 2nd class citizens
Washington v. Glucksberg:
ASSISTED SUICIDE
WA law said it was a crime to knowingly cause or aid another person to attempt suicide. Glucksberg was a physician in WA and brought suit alleging that he treated terminally-ill patients and would have assisted those patients in ending their lives if not for the WA law.
Majority Holding (Rehnquist) → NO the right to physician-assisted suicide is not a constitutionally-protected liberty interest under the Due Process Clause.
Reasoning:
2-step analysis for deciding whether a fundamental right exists under the Due Process Clause:
1. Whether the right is objectively, deeply rooted in US history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if the right was sacrificed; and
2. Whether a careful description exists of the fundamental liberty interest.
O’Connor Concurrence:
There is no generalized right to commit suicide, therefore there is no reason for the Court to consider the narrower question of whether a mentally competent person experiencing great suffering has a constitutionally cognizable interest in obtaining a physician assisted suicide.
Breyer Concurrence:
The majority should not have considered whether physician-assisted suicide was a fundamental right.
Souter Concurrence:
Glucksberg improperly asks the Court to treat the DPC as a vague and indefinable protection of a broad range of interests; state legislatures are better suited than courts to determine whether certain rights are “fundamental” and protected by the DPC.
KEY TAKEAWAY: There is no constitutionally-protected right to physician-assisted suicide because there is a deeply rooted rejection of the practice in US history and WA’s ban on physician-assisted suicide survived the rational basis test.
