Substantive Due Process Flashcards
Substantive Due Process Generally
The doctrine of substantive due process holds that the due process clauses (5th and 14th) protect a form or liberty that the government cannot impair even after providing procedural protections.
Under substantive due process, the government cannot interfere with an individual’s fundamental right unless
1) the government has a compelling interest; and
2) the regulation is narrowly tailored to achieve this compelling interests
Fundamental rights are one which are deeply rooted in our nation’s history and traditions, and implicit in the concept of ordered liberty.
Applicable Standards Under Substantive Due Process
When a fundamental right is limited, the law is reviewed under strict scrutiny. All other cases are reviewed under rational basis.
Fundamental Rights include
– All First Amendment rights
– The right to interstate travel
– privacy related rights
– voting
Whether an unenumerated right is fundamental depends on whether it is deeply rooted in our nation’s history and tradition and essential to the concept of ordered liberty
Relationship between Substantive due process and equal protection
If a law limited the rights of all persons to engage in some activity, on the MBE it usually is a due process question
If the law treats a person or class of persons differently from other, on the MBE it is usually an equal protection question (on essay analyze under both substantive due process and equal protection)
Privacy Related Rights
The privacy related fundamental rights include marriage, procreation, contraception, and childrearing. Regulations substantially burdening these rights are reviewed under the strict scrutiny standard.
Marriage Fundamental Right
A law prohibiting a class of adults from marrying is likely to be invalidated unless the government can demonstrate that the law is narrowly tailored to promote a compelling or at least important governmental interest.
A ban in interracial marriage triggers and fails strict scrutiny.
The fundamental liberties by the Fourteenth Amendment (due process and equal protection) require every state to issue marriage licenses to two people of the same sex and recognize same sex marriages performed elsewhere.
Bans on same sex marriage are not based on any legitimate interest related to protecting or promoting marriage.
Restrictions on Marriage
A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate prison management purpose
Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review
Procreation Fundamental Right
Individuals have a fundamental right to reproduce that cannot be limited by the state
May not sterilize repeat offenders
Contraceptives Fundamental Right
A state cannot prohibit the distribution of nonmedical contraceptives to adults or minors
Parental Rights
Parental rights are fundamental rights. Parents have a fundamental right to control and direct their child’s education. Parents have a fundamental right to make decisions concerning the care, custody, and control of their children.
Extended Family Fundamental Right
There is a fundamental right for family members - even extended - to live together. However, this right does not extend to unrelated people.
Abortion
The Supreme Court overruled the right for a woman to obtain an abortion. This matter is now left to the states.
The court has stated that laws restricting abortions are entitled to a strong presumption of validity under ration basis review.
The court has identified several legitimate interests that can support a restriction - respecting and preserving prenatal life at all stages of development; protecting maternal health and safety; eliminating particularly gruesome or barbaric medical procedure; preserving the integrity of the medical profession; mitigating fetal pain; preventing discrimination based on race, gender, or disability
Right to Obscene Reading Material
The right to privacy include freedom to read obscene material in one’s home (except for child porn), but not the right to sell, purchase, or transport such material
Collection and Distribution of Personal Data
The state may reasonably gather and distribute information about its citizens (no privacy right)
Thus, there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed
Interstate Travel
An individual has a fundamental right to (1) travel from state to state and (2) to be treated equally after moving to a new state
Durational Residency Requirements
It is not clear whether these are reviewed under strict scrutiny, so know the following
1) one year residency to receive welfare benefits = invalid
2) one year residency to receive state subsidized medical care = invalid
3) one year residency to vote = invalid
4) Thirty day residency to vote = valid
5) one year residency to get divorced = valid
Right to International Travel
International travel is not a fundamental right. However, it is protected from arbitrary federal interference by the Fifth Amendment Due Process Clause
Rational Basis applies
Right to Vote
The right to vote is a fundamental right. As a result, restrictions on that right, other than those based on residency, age, and citizenship, are invalid unless they can pass strict scrutiny.
Restrictions on Right to Vote
– Condition the right to vote or hold office on ownership of property is usually invalid
– reasonable time periods for residency (30 days) are valid. Congress can override state residency requirements in federal elections and substitute their own.
– A state may require voters to show a government issued ID
– Poll taxes are unconstitutional
One Person One Vote Principle
this applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts
State and Local Election - the populations of voting districts must be substantially equal. The variance can’t be unjustifiably large (16% has been held valid, and 10% is presumptively valid. The state must show that a deviation from mathematical equality of reasonable and tailored to promote a legitimate interest (preserving political subdivisions)
Congressional Elections - States must use almost exact mathematical equality when creating congressional districts within the state - even a variance of 0.7% was invalidated.
Gerrymandering
Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries for voting districts unless the district plan can satisfy struct scrutiny
Political gerrymandering (drawing district lines to achieve certain political results) is a nonjusticiable political question
Right to Bear Arms
The Second Amendment protects the right of individuals to bear arms for self-defense. This includes the right to keep a handgun at home and the right to carry a handgun in public.
Gun Permits
For a gun permit law to be valid, the criteria must be clear - a law that gives an official discretion in granting permits is unconstitutional
Neither may a state require someone who is applying for a concealed carry permit show they need it for safety - such a requirement is unconstitutional
Second Amendment Standard of Review
If a regulation burdens an individual’s right to keep and bear arms then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation.
Simply posting that a regulation promotes an important interest is not sufficient.
Intimate Sexual Conduct
The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature.
The court has not stated a standard of review, but it has indicated that they can’t even pass rational basis test because of the lack of a legitimate state interest
