Substantive Due Process

Question 1

Substantive Due Process

Answer 1

Guarantees that laws will be reasonable and not arbitrary
-Applies to federal government (Fifth Amendment) and state government (Fourteenth Amendment)

Apply strict scrutiny to fundamental rights, rational basis to everything else

Question 2

Fundamental Rights

Answer 2

1. All First Amendment Rights
2. Right to Interstate travel (but not international)
3. Privacy-related rights (no longer abortion)
4. Voting

Deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty

Question 3

Substantive Due Process vs. Equal Protection Questions

Answer 3

Substantive due process –> rights of all persons to engage in some activity is limited

Equal Protection –> a person or class of persons is treated differently by a law
-On MEE only, analyze this under both SDP and EP

Question 4

Privacy-Related Rights

Answer 4

Marriage: a law prohibiting a class of adults from marrying is subject to strict scrutiny
-Interracial marriage (fails strict scrutiny)
-Same-sex marriage (fails strict scrutiny)
-Prison inmates (allowed if reasonably related to legitimate penological interests)
-Minimum age requirements (subject to rational basis review)

Procreation: individuals have fundamental right to reproduce that cannot be limited by the state

Use of Contraceptives: a state cannot prohibit the distribution of non-medical contraceptives to adults or minors

Rights of Parents: the right of companionship, care, custody, and upbringing children, and keeping extended family together are fundamental rights

Abortion: NO FUNDAMENTAL RIGHT TO ABORTION AT ANY STAGE (left to states)

No privacy right against collection and distribution of personal data by the state

Question 5

Right to Travel

Answer 5

An individual has a fundamental right to:
-Travel from state to state; and
-Be treated equally after moving into a new state

No right to international travel!

Durational Residency Requirements:
-1 year to receive full welfare benefits (invalid)
-1 year to receive state-subsidized medical care (invalid)
-1 year to vote in state (invalid)
-30 days to vote in state (valid) - 30 days reasonable
-1 year to get divorced (valid) - didn’t want to become divorce mill

Question 6

Right to Vote

Answer 6

Restrictions to vote other than the basis of residence, age, and citizenship are invalid unless they can pass strict scrutiny
-Reasonable time periods for residency (30 days) are valid
-Voter ID requirements are valid
-Early registration requirements to vote in primaries are valid
——————————–
-Poll taxes are invalid
-Conditioning the right to vote or hold office on property ownership is invalid

Question 7

Dilution of Right to Vote

Answer 7

One person, one vote principle applies at any level of government selecting representatives by popular election (not at large) from individual districts:

-State and local elections: substantially equivalent (up to 16% variance if deviation is reasonable and tailored to promote legitimate state interest such as preserving political subdivisions (counties))

-Congressional elections: states must use almost exact mathematical equality (0.7% variance was invalidated)

Total population, not persons eligible to vote

Question 8

Gerrymandering

Answer 8

Political gerrymandering allowed (non-justiciable political question)

Gerrymandering based PREDOMINATELY on suspect classification is invalid unless it can pass strict scrutiny

Question 9

Right to Bear Arms

Answer 9

Second Amendment protects the right of individuals to bear arms for self-defense
-Includes right to carry handgun in public or at home
-Regulation on firearms must be justified by country’s historic tradition of firearm regulation