Substantive Due Process

Question 1

Substantive Due Process Generally

Answer 1

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.

Question 2

Applicable Standards Under Substantive Due Process

Answer 2

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

Question 3

Relationship between Substantive due process and equal protection

Answer 3

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)

Question 4

Privacy Related Rights

Answer 4

The privacy related fundamental rights include marriage, procreation, contraception, and childrearing. Regulations substantially burdening these rights are reviewed under the strict scrutiny standard.

Question 5

Marriage Fundamental Right

Answer 5

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.

Question 6

Restrictions on Marriage

Answer 6

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

Question 7

Procreation Fundamental Right

Answer 7

Individuals have a fundamental right to reproduce that cannot be limited by the state

May not sterilize repeat offenders

Question 8

Contraceptives Fundamental Right

Answer 8

A state cannot prohibit the distribution of nonmedical contraceptives to adults or minors

Question 9

Parental Rights

Answer 9

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.

Question 10

Extended Family Fundamental Right

Answer 10

There is a fundamental right for family members - even extended - to live together. However, this right does not extend to unrelated people.

Question 11

Abortion

Answer 11

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

Question 12

Right to Obscene Reading Material

Answer 12

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

Question 13

Collection and Distribution of Personal Data

Answer 13

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

Question 14

Interstate Travel

Answer 14

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

Question 15

Durational Residency Requirements

Answer 15

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

Question 16

Right to International Travel

Answer 16

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

Question 17

Right to Vote

Answer 17

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.

Question 18

Restrictions on Right to Vote

Answer 18

– 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

Question 19

One Person One Vote Principle

Answer 19

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.

Question 20

Gerrymandering

Answer 20

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

Question 21

Right to Bear Arms

Answer 21

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.

Question 22

Gun Permits

Answer 22

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

Question 23

Second Amendment Standard of Review

Answer 23

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.

Question 24

Intimate Sexual Conduct

Answer 24

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

Question 25

Right to Refuse Medical Treatment

Answer 25

The right of a mentally competent adult to refuse medical treatment is part of an individual’s liberty under the Fifth and Fourteenth Amendment Due Process Clauses

However, the court has not declared it a fundamental right nor provided a standard of review

NOTE - there is no fundamental right to physician assisted suicide

NOTE - States can compel vaccination against contagious diseases