Substantive Due Process

Question 1

What is Substantive Due Process

Answer 1

Substantive due process is the principle that the government cannot encroach upon fundamental rights guaranteed by the Due Process Clauses of the 5th and 14th Amendments without meeting strict scrutiny. The framework for substantive due process is:

Question 2

Framework for Substantive Due Process

Answer 2

Part 1: Is the right a fundamental right?
(a) Is it deeply rooted in the nation’s history and traditions and “implicit in the concept of ordered liberty”

(b)Traditionally/Historically recognized + failing to recognize the right would contravene liberty and justice (Washington v. Glucksberg)
IF yes&raquo_space; strict scrutiny applies
IF no&raquo_space; rational basis review applies

Part 2: If it is a fundamental right:
(1) Is the constitutional right infringed?
(a) Prohibitions are an infringement.
(b) Partial restrictions - courts should consider the directness and substantiality of the interference
(2) Is there a sufficient justification for the gov.’s infringement of a right
(a) Does the gov have a compelling interest to survive strict scrutiny
(3) Is the means sufficiently related to the purpose?
(a) Is the government’s restriction sufficiently narrowly tailored to survive strict scrutiny

Question 3

Lochner v. New York (1905) → IS a fundamental right

Answer 3

Facts: A NY State law provides a max hour requirement for bakers. They cannot work more than 10 hours per day or 60 hours per week. Joseph Lochner, a baker owner, is convicted of violating the statute. He challenges the law as a violation of the 14th Amendment due process clause.
Holding/Rule: The law infringes on protected economic liberties and therefore unconstitutional. Economic liberties like the freedom to engage freely in contract are fundamental rights protected by the 5th and 14th Amendment Due Process Claus

Question 4

Washington v Glucksberg (1997) → is NOT a fundamental right

Answer 4

Facts: WA state makes it a crime to assist someone else in committing suicide. Three patients and three doctors sue, arguing that the law infringes on the fundamental right to a physician-assisted suicide.
Holding/Rule: There is not a fundamental right to physician assisted suicide. The state law also survives rational basis review. A fundamental right exists if it is (i) deeply rooted in this nation’s history and tradition and (ii) implicit in the concept of ordered liberty. Since no fundamental right, RBR applies. Washington has several legitimate interests in the ban: the preservation of human life; the protection of vulnerable groups, including the poor, elderly, and disabled from abuse, neglect, and mistakes; and the discouragement of state policy from following a path that might eventually lead to involuntary euthanasia.

Question 5

Loving v. Virginia (1967) → is a fundamental right

Answer 5

Rule: Law prohibiting interracial marriage violates fundamental rights

Question 6

Zablocki v. Redhail (1978) → is a fundamental right

Answer 6

Rule: Law prohibiting individuals who are behind on child support payments from marrying violates fundamental right to marriage.

Question 7

United States v Windsor (2013) → is a fundamental right

Answer 7

Facts: Windsor and Speyer are married. Speyer leaves her estate to Windsor when she dies, but Windsor cannot claim the marital exemption for federal estate taxes because DOMA defines marriage as between man and a woman. She challenges law.
Holding/Rule: DOMA violates equal protection and due process. But it’s unclear what the standard of review is being applied, the court does not follow the usual fundamental rights/classifications analysis.

Question 8

Obergefell v. Hodges (2013) → is a fundamental right

Answer 8

Facts: A number of states prohibit same -sex marriage and refuse to recognize out of state same-sex marriages. These laws are challenged on equal protection grounds.
Holding/Rule: The state laws are unconstitutional. The right to same-sex marriage is protected by the Due Process and Equal Protection Clauses.

Question 9

List of fundamental rights in the Constitution:

Answer 9

Freedom of speech
Trial by Jury
Protection against Self Incrimination
Unreasonable searches and seizures
Equal protection

Question 10

List of fundamental rights not in the Constitution:

Answer 10

Vote, Marriage, Privacy; Contraception, Interstate Travel, Procreation, Custody of One’s Children

Question 11

Vote

Answer 11

Fifteenth Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.
Nineteenth Amendment: Right to vote shall not be denied or abridged on account of sex
Twenty Fourth Amendment: The right of citizens of the United States to vote in any primary or other election for POTUS or VP, for electors for POTUS or VP, or Senator or Representative in Congress, shall not be denied by the US or any state by reason of failure to pay any poll tax or other tax
Twenty Sixth Amendment: The right of citizens of the United States, who are eighteen years of age or older to vote shall not be denied by the United States or by any state on account of age
Protecting Right to Vote:
Poll Taxes: prohibited by the 24th Amendment and EPC (Harper v. VA)
Property Ownership Requirements: Mostly not permitted, with a few narrow exceptions
Literacy Tests: Constitutionally permitted but outlawed by statue.
Incarcerated and formerly incarcerated individuals: States may permanently disenfranchise those convicted of a felony
Photo ID Requirements: Permitted w some limitations

Question 12

Marry

Answer 12

Obergefell, Redhail?

Question 13

Contraception

Answer 13

Griswold, Einstadt, Roe, Casey, Dobbs

Question 14

Griswold v. Connecticut (1965) → privacy and therefore contraceptive care is a fundamental right

Answer 14

Holding/Rule: There is an implied constitutional right of privacy in 1st, 3rd, 4th, 5th,9th,amendments. It prohibits the government from restricting access to contraceptives by married couples.

Question 15

Eisenstadt v. Baird (1972) → is a fundamental right

Answer 15

Holding/Rule: The court extends the right to use contraceptives to unmarried ppl as well. But it does so on the grounds that the 14th Amendment offers substantive due process and equal protection against privacy infringements. It largely abandons the “penumbra” approach to the constitutional right to privacy.

Question 16

Roe v. Wade (1973) → is a fundamental right (overturned now)

Answer 16

Facts: TX law criminalizes abortions except to save the life of the mother. Jane Roe lives in TX and is denied an abortion. She argues that the law violates her fundamental right to an abortion.
Holding/Rule: There is a fundamental right to an abortion and the TX law infringes upon it. However, the right is not absolute. States also have a countervailing interest in protecting the potential life of the fetus.Comes out with a 3 trimester rule:
During the first trimester the abortion decision is “left to the medical judgment of the pregnant women’s attending physician”.
Between the start of the second trimester and viability, the state may regulate the abortion procedure in ways that are reasonably related to maternal health.
After viability, the state may outlaw abortion except when necessary to preserve the life or health of the mother.

Question 17

Planned Parenthood v. Casey (1992) → is a fundamental right

Answer 17

Facts: PA adopts a law requiring informed consent about an abortion; a 24 hour waiting period prior to an abortion; parental consent or judicial approval prior to a juvenile having an abortion; and spousal notification before a married woman could have an abortion.
Holding/Rule: The spousal notification provision represents an undue burden on the right to an abortion and is struck down. The informed consent, waiting period, and parental consent provisions are upheld. The constitutional right to an abortion is upheld. However, the trimester scheme outlined in Roe is overturned. Instead, abortion regulations even in the first trimester will be upheld unless they create an “undue burden” on the constitutional right to an abortion. An undue burden exists if the purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.

Question 18

Dobbs v. Jackson Women’s Health Org (2022) → is not a fundamental right

Answer 18

Facts: MS passes law prohibiting all abortions after 15 wks except in the case of severe fetal abnormality or a medical emergency
Holding/Rule: The law is constitutional. There is NO fundamental right to an abortion. Roe and Casey are overruled. The government may prohibit abortions at all stages of pregnancy

Question 19

Interstate travel

Answer 19

The EPC and Privileges and Immunities Clause in both Article IV, Section 2 and the 14th Amendment protects the fundamental constitutional right to interstate travel. These provisions protect (i) citizens free movement between states (ii) equal treatment in each state when visiting and (iii) equal treatment between both new and longstanding residents of the state (14th A. P& I Clause) (Saenz v. Roe).

Question 20

Saenz v. Roe (1999) → is a fundamental right

Answer 20

Facts: CA restricts the maximum welfare benefits provided to newly arrived residents in their first 12 months in the state to the amount payable in their previous state. A new resident of CA challenges the law as an impermissible infringement on the Constitutional Right to travel.
Holding/Rule: The EPC and Privileges and Immunities Clause in both Article IV, Section 2 and the 14th Amendment protects the fundamental constitutional right to interstate travel. These provisions protect (i) citizens free movement between states (ii) equal treatment in each state when visiting and (iii) equal treatment between both new and longstanding residents of the state (14th A. P& I Clause)

Question 21

Procreation

Answer 21

Buck v. Bell (1927) → is not a fundamental right
Holding/Rule: A VA law permitting involuntary sterilization of people with mental illness or disability is upheld. The right to procreate is not a fundamental right.
Skinner v. Oklahoma (1942) → is a fundamental right
Holding/Rule: An OK law permitting the voluntary sterilization of individuals convicted of certain crimes is struck down as unconstitional. The right to marriage and to procreate is a fundamental right. Buck v. Bell overturned.