Substantive Due Process Flashcards
Fifth Amendment
-Applies against the federal government when they are trying to mess with your rights
-Provides that “[n]o person shall be … deprived of life, liberty, or property, without due process of law.”
Fourteenth Amendment
-Applies against the states
-Provides that “no state shall make or enforce any law which shall … deprive any person of life, liberty, or property, without due process of the law.”
If a non-fundamental right is being taken away…
there need be only a rational basis for the regulation
-A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld
If a fundamental right is being taken away…
the government action is subject to strict scrutiny
Must prove:
-They have a compelling interest that needs to be furthered (also known as an over whelming interest) and
-Narrowly tailored to that interest
(If it’s more strict (intrusive) than necessary, it is not narrowly tailored)
Fundamental rights can be…
express in the bill or rights or implied by the Supreme Court
Implied rights
Use of contraceptives by consenting adults (unmarried or married), the right to engage in consensual adult private sexual intimacy (hetero or homo), marry someone (can be regulated since those don’t substantially intrude but you cant subt. intrude, ban or punish), right to retain physical ability to procreate (aka sterilization), right to raise and educate children as you choose (not all biological fathers have this interest but those who have an established rel with their biological child do have that interest), blood related family to live together (extent of this has not been fully decided but it goes beyond nuclear family but not beyond not blood related), right to refuse medical assistance (even if it would be fatal)
Is it a fundamental right/interest not yet established?
Is it protected by history/deeply rooted in American history
AND
Is it so basic/implicit that there is no liberty or justice for the person without it
