substantive due process Flashcards
fundamental rights include
all first amendment rights
right to interstate travel
privacy-related rights
voting
right to bear arms for self defense in the home and in public
whether an unenumerated right is fundamental depends on:
whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.
when is it a DP case vs. EP
if the government is denying everyone a fundamental right – DP issue
if government is denying a group a fundamental right – EP and DP problem
privacy related rights that are fundamental
(1) marriage
(2) procreation
(3) use of contraceptives
(4) parental rights
(5) keeping extended family together
(7) NOT ABORTION
(8) freedom to read obscene material in one’s home
what does it mean when a law burdens a fundamental right?
it triggers strict scrutiny
(laws that do not burden fundamental rights are subject to rational basis review)
standard of review for restrictions on marriage in prisoner’s rights cases
A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
categorical ban on prison marriage is illegal
scope of fundamental right to marriage
laws that burden right to marriage:
- ban on interracial marriage
- ban on same sex marriage
laws that do not substantially burden right to marriage:
- minimum age requirements
scope of fundamental right to procreation
Individuals have a fundamental right to reproduce that cannot be limited by the state.
no forced sterilizations of repeat offenders of crimes
scope of fundamental right to use contraceptives
A state cannot prohibit the distribution of nonmedical contraceptives to adults or minors
scope of fundamental parental rights
They include the companion- ship, care, custody, and upbringing of children
Ex:
state cannot require public school education
state cannot require education in English
parents can forbid visitation by grandparents
scope of fundamental right to keep extended family together
There’s a fundamental right for family members—even extended ones—to live together. However, this right does not extend to unrelated people.
how do court look at state abortion regulations
laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review.
the Court has identified several legitimate state interests that can support a restriction, namely,
— respecting and preserving prenatal life at all stages of development
—- protecting maternal health and safety
—– eliminating “particularly gruesome or barbaric medical procedures”
—– preserving the integrity of the medical profession; mitigating fetal pain
—- preventing discrimination based on race, gender, or disability
fundamental rights relating to right to travel
interstate travel
NOT international travel
scope of fundamental interstate right to travel
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
tolls for entering or leaving a state are invalid
penalties for parents leaving their kid in one state are valid
RESIDENCY REQUIREMENTS ARE SOMETIMES INVALID
to what extent do residency requirements violate substantive due process right to interstate travel?
one year residency to receive welfare benefits – invalid
one year residence to receive state-subsidized medical care — invalid
one year residency to vote in state – invalid
thirty day residency to vote in state — valid
one year residency to get divorced - valid
restrictions on right to vote that are valid and invalid
INVALID
- poll taxes
- conditioning voting or holding office on ownership of property (unless special election)
VALID
- reasonable time periods for residency
- ID requirements
- early registration for primary elections
one person one vote principle — voter dilution as grounds for due process challenge
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.
requirement of one person one vote for state and local elections
Fo state and local elections, the populations of voting districts must be substantially equal. a 10% variance is presumptively valid. Otherwise, A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest.
Ex: of legit state interest includes maintaining the integrity of local political subdivision lines, as long as final apportionment is substantially based on population
requirement of one person one vote for federal elections
States must use almost exact mathematical equality when creating congressional districts within the state—even a 0.7% variance was invalidated.
This isn’t true, however, when Congress apportions representatives among the states; Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathemat- ical formula, as are state plans.
how can states measure voting districts?
total population, not just eligible population
racial gerrymanering vs partisan gerrymandering
if race is predominant factor in drawing a voting district, the map must satisfy strict scrutiny
partisan gerrymandering is nonjusticiable
test for whether firearm regulation burdens second amendment rights
whether regulation is consistent with historical tradition of firearm regulation
sensitive places restrictions are constitutional
no general bans on handguns in the home or in public for self-defense
unspecified rights – that court has not yet said are fundamental … has stopped short of calling them fundamental but seems to treat them as special
(1) same sex intimate conduct in private setting
(2) right of competent adults to refuse medical treatment
– state can compel vaccination
— no fundamental right to assisted suicide
what test applies to laws prohibiting nonresidents from voting
apparently it is a rational basis standard
when does “one person one vote” not apply?
when there is an at-large system of election such districts do not select one representative a-piece
