Substantive Due Process Flashcards
What does substantive due process guarantee?
Laws re enumerated & unenumerated rights will be reasonable/not arbitrary. - i.e. fundamental rights will not be limited.
What are the fundamental rights?
- 1A
- right to travel
- right to vote
- privacy
When to apply substantive due process vs. equal protection?
limiting certain liberty at issue for all ppl – SDP
treating group different from those situated similarly - EPC
limits liberty for group of people - both
What is the right to travel?
(a) right to travel from state to state and (b) to be treated equally after moving into a new state
Note: tolls for entering/leaving state are invalid, but toll roads legit
What restrictions on the right to vote are valid?
(a) restrictions re age, citizenship, residence, and (b) other restrictions as long as they pass strict scrutiny
Note: reasonable time periods req’s for residency are ok (e..g 30 days)
What does one person, one vote require?
When elections are run by individual districts, the population of voting district must be substantially equal. A 10% variance is presumptively valid.
When states make congressional districts, what mathematical precision is required?
Almost exact. (e.g. 0.7% difference invalidated)
Standard for challenging gerrymandering?
Gerrymandering based on race/suspect classification needs to pass strict scrutiny. Political gerrymandering (i.e. by political party) is a political question which will not be reviewed by courts.
What are the unenumerated rights the court has made law in – but not subject to strict scrutiny, i.e., not fundamental?
- intimate sexual contact (that is not commercial)
- right to refuse medical treatment (but states can compel vaccination)
- 2A right to bear arms
Note: no right to physician-assisted suicide
Note: rational basis review applies to laws in these areas; 2A likely gets more
