Substantive Due Process

Question 1

What is substantive due process?

Answer 1

Substantive due process guarantees that laws will be reasonable and not arbitrary, both with respect to rights enumerated in the Constitution (for example, the freedom of speech) and unenumerated rights (for example, privacy). Substantive due process derives from the Due Process Clause of the Fifth Amendment, which applies to the federal government, and the Due Process Clause of the Fourteenth Amendment, which applies to state and local governments. The same tests are applied under each clause

Question 2

What are the applicable standards for substantive due process?

Answer 2

When a fundamental right 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, the right to education, and the right to physician-assisted suicide). Fundamental rights include: 
• All First Amendment rights
• The right to interstate travel
• Privacy-related rights
• Voting

Question 3

What is the relationship between substantive due process and equal protection?

Answer 3

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

Question 4

How does substantive due process appear on the MBE?

Answer 4

If a law limits liberty of all persons to engage in some activity, on the MBE it usually is a due process question.

Question 5

What does equal protection look like?

Answer 5

If a law treats a person or class of persons differently from others, on the MBE it usually is an equal protection problem.                                     a. Class of One 
The Supreme Court has recognized—at least in relation to property regulation—that an equal protection claim can be brought not only for discrimination against a group but also for arbitrary treatment against an individual—a class of one. 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 6

What are privacy-related rights?

Answer 6

Various privacy rights including marriage, procreation, contraception, and childrearing are fundamental rights. Regulations affecting these rights are reviewed under the strict scrutiny standard.

Question 7

How is the privacy right of marriage protected?

Answer 7

A law prohibiting a class of adults from marrying is likely to be invalidated unless the government can demonstrate that the law is narrowly tailored to promote a compelling or overriding or, at least, important interest.
a. Ban on Interracial Marriage
A ban on interracial marriage has been held to trigger and fail strict scrutiny.
b. Same-Sex Marriage
The fundamental liberties guaranteed by the Fourteenth Amendment (both the Due Process and Equal Protection Clauses) require every state to issue marriage licenses to two people of the same sex and recognize same-sex marriages
performed elsewhere. c. Special Test in Prisoners’ Rights Cases
A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.

Question 8

How is procreation protected?

Answer 8

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

Question 9

How is the use of contraceptives protected?

Answer 9

A state cannot prohibit the distribution of nonmedical contraceptives to adults or minors.

Question 10

What are the rights of parents?

Answer 10

Parental rights are fundamental rights. They include the companionship, care, custody, and upbringing of children. (For example, a parent has a fundamental right to send a child to private school or to forbid visitation with grandparents.)

Question 11

What is the right to keep family together?

Answer 11

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

Question 12

What is the right to abortion?

Answer 12

The right to privacy includes the fundamental right of a woman to terminate her pregnancy at least until viability. However, strict scrutiny isn’t applied. Instead, the Supreme Court has adopted two basic rules: a pre-viability rule and a post-viability rule.
a. Pre-Viability Rule—No Undue Burdens
Before viability (a realistic possibility that the fetus could survive outside the womb), a state can regulate (but it cannot prohibit) abortion to protect the woman’s health or the life of the fetus. However, the regulation must not place an “undue burden” on (that is, a substantial obstacle to) the woman’s right to obtain an abortion. b. Post-Viability Rule—May Prohibit Abortion Unless Woman’s Health Threatened
Once the fetus is viable, the state can prohibit abortions, unless an abortion is necessary to protect the woman’s health or safety.
c. Financing Abortions
The government has no obligation to pay for abortions—that is, it’s not an undue burden for the government to prohibit public funding of abortions.

Question 13

What is the right to obscene material?

Answer 13

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

Question 14

Is there a right to the collection and distribution of personal data?

Answer 14

The state 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 15

What is the right to interstate travel?

Answer 15

An individual has a fundamental right (1) to travel from state to state, and (2) to be treated equally after moving into a new state. Note though that not every restriction on the right to
cross state lines are an impairment of the right to travel.

Question 16

What does the right to equal treatment in a new state look like?

Answer 16

A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits or otherwise dispenses 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. It may be best for you to just recall the following examples: one-year residency to receive full wellfare benefits, one-year to receive state-subsidized medical care, and one year to vote in the state are all invalid. Thirty-day residency to vote in state and one-year residency to get divorced are all valid.

Question 17

What is the right to international travel?

Answer 17

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.

Question 18

What is the right to vote?

Answer 18

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

Question 19

What are the restrictions on the right to vote?

Answer 19

a. Residency Requirements
Reasonable time periods for residency (for example, 30 days) are valid. Note that Congress can override state residency requirements in federal elections and substitute its own.
b. Identification
A state may require voters to show a government-issued voter ID.
c. Property Ownership
Conditioning the right to vote or hold office on ownership of property is usually invalid. Exception: Special purpose elections (for example, water storage districts); see infra.
d. Poll Taxes
Poll taxes are unconstitutional.
e. Primary Elections
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 registered
with the party.

Question 20

What is the dilution of the right to vote?

Answer 20

a. One Person, One Vote Principle
The “one person, one vote” principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.
State and Local Elections
For state and local elections, the populations of voting districts must be substantially equal. That is, the variance in the number of persons included within districts 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 a legitimate state interest (for example, preserving political subdivisions),
although a 10% variance is presumptively valid. z Congressional Elections
States must use almost exact mathematical equality when creating congressional districts within the state. Example: A 0.7% variance was invalidated. This isn’t true of Congress, however, when it apportions representatives among the states; Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathematical formula, as state plans.
Districts Can Be Measured Using Total Population
States don’t need to measure the equality of their districts by counting only persons eligible to vote. It’s sufficient to count the total population; this best serves the “one person, one vote” principle .

Question 21

What are the exceptions when it comes to the dilution of voting?

Answer 21

Exception—Appointed Officials and Officials Elected “At Large”
The apportionment requirement is inapplicable to officials who are appointed or elected at large.
Exception—Special Purpose Election
The one person, one vote principle 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 22

What is gerrymandering?

Answer 22

Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny. Compare that to political gerrymandering (that is, drawing district lines to achieve certain political results which sometimes results in districts with the contours of a mythical salamander); political gerrymandering is non-justiciable as a political question.
c. States May Use Independent Commissions to Draw Districts
To avoid gerrymandering, states can use independent commissions to adopt congressional districts, rather than allowing the state legislature to redistrict.

Question 23

What is the process for candidates and campaigns?

Answer 23

a. Candidate Qualifications
Fee Must Not Preclude Indigents
States can’t charge candidates a fee that results in making 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.
b. Campaign Funding
The government can allocate more public funds to the two “major” parties than to “minor” parties for political campaigns.

Question 24

Is intimate sexual conduct protected?

Answer 24

The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct (for example, sodomy) 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 of the lack of a legitimate state interest.

Question 25

Is the right to refuse medical treatment protected?

Answer 25

The right of mentally competent adult to refuse medical treatment treatment is a part of an individual’s “liberty” under the Fifth
and Fourteenth 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.
a. Compare—No Right to Assisted Suicide
There is no fundamental right to physician-assisted suicide.
b. Compare—Compelled Vaccinations
States can compel vaccination against contagious diseases.

Question 26

Is the right to bear arms a protected right?

Answer 26

The Supreme Court has held that the Second Amendment right to bear arms protects the right of individuals to keep handguns in their homes for self-defense. While the Court has not specified what level of scrutiny applies to restrictions on this right, it appears to be more than rational basis review.

Question 27

What is the right to fair notice?

Answer 27

A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause.