Substantive Due Process

Question 1

Approach to Fundamental Rights

Answer 1

1) Describe the right
2) Determine whether the right is fundamental (or an ordinary liberty interest)
3) Determine if there has been substantial infringement of the right (if not, just rational basis)
4) Attack with substantive due process, equal protection or both

*If substantive due process, separately consider a facial attack vs. an as-applied attack if appropriate, and the need to provide a remedy

Question 2

Approach to Fundamental Rights: Element 4(a) – Substantive Due Process

Answer 2

• Rational basis test
• Intermediate or moderately heightened scrutiny
• Strict scrutiny

*Applicable when a restriction applies to ALL individuals equally (e.g., a ban on possession of marijuana)
*If substantive due process, separately consider a facial attack vs. an as-applied attack if appropriate, and the need to provide a remedy

Question 3

Approach to Fundamental Rights:
Element 4(b) – Equal Protection

Answer 3

• State the classification
• Identify the level of protection (rational basis test or strict scrutiny)
• Compelling interest?
• Alternative means?

*Applicable when a restriction improperly undercuts the enjoyment of a right for SOME GROUP
*No equal protection for important rights

Question 4

Rational Basis Test

Answer 4

The State must identify a legitimate State purpose and show a relationship between the means chosen and the State’s purpose

*Applies to ordinary liberty interests
*No fundamental/recognized rights

Question 5

Intermediate or Moderately Heightened Scrutiny

Answer 5

Analyze State interests that justify regulation of the right. Is the restriction on the right appropriate given the importance of the right? Unduly burden?

*Applies to important rights (something less than fundamental but clearly more than an ordinary liberty interest)
*Morality is insufficient as a State interest

Question 6

Strict Scrutiny

Answer 6

The State’s interest must be very important/compelling. Analyze whether the regulation is necessary to achieve the State’s interest and whether the State could have achieved its goal in other ways

*Applies to fundamental rights

Question 7

Fundamental Rights (examples)

Answer 7

• Marriage
• Living together as a family
• To have children and control their upbringing
• Contraception
• To refuse medical treatment
• Travel
• To vote
• Access to the courts to protect a fundamental right

*Apply strict scrutiny test

Question 8

Important Rights (examples)

Answer 8

• Abortion (overruled by Dobbs)
• Sodomy (including gay sodomy)
• To take pain medication for terminal suffering

*Apply intermediate scrutiny

Question 9

Facial vs. As-Applied Challenges

Answer 9

In a facial (on-its-face) challenge, P is claiming that a statute is unconstitutional at all times and under all circumstances. The goal is usually to have a court declare the law “facially invalid”

An as-applied challenge alleges that a statute or regulation is unconstitutional in a specific context. P in an as-applied challenge is not arguing that the entire statute is unconstitutional, but instead that it is being applied in an unconstitutional manner. The results of as-applied challenges tend to be narrower in scope

*Plainly legitimate sweep: Are there a significant number of situations where the statute CAN be found to be constitutional?
*No facial attack argument under equal protection because the entire statute would get thrown out

Question 10

Ordinary Liberty Interests (examples)

Answer 10

• Education
• Terminally ill patient receiving assistance in committing suicide

*Apply rational basis test