Substantive Due Process

Question 1

Substantive Due Process - Basic Concept

Answer 1

• guarantees that laws will be reasonable + not arbitrary

Question 2

Fundamental Rights

Answer 2

Include:
- all 1st Am rights
- right to interstate travel
- privacy-related rights
- voting

• whether an unenumerated right is fundamental depends on whether deeply rooted in the nation’s history + tradition + is essential to the concept of ordered liberty

Question 3

Substantive Due Process - Standards of Review

Answer 3

• strict scrutiny applies when a fundamental right is limited
• otherwise, rational basis review applies

Question 4

Relationship Between Substantive Due Process and Equal Protection

Answer 4

• both substantive due process and equal protection guarantees require the Court to review the substance of a law rather than the procedures employed
• if a law limits the rights of all persons to engage in some activity, on the MBE it usually is a due process question
• if a law treats a person or class of persons different from others, on the MBE it’s usually an equal protection problem
• if gov denies fundamental right to only some people, analyze under both

Question 5

Class of One

Answer 5

• Supreme Court has recognized that an equal protection claim can be brought not only for discrimination against a group, but also for arbitrary treatment of a single individual
• however, Court has held that an at-will gov employee who claims to be a victim of arbitrary discrimination can’t use the class of one theory to make an equal protection claim

Question 6

Privacy-Related Rights

Answer 6

• marriage
• procreation
• use of contraceptives
• rights of parents
• keeping extended family together
• no longer includes abortion

Question 7

Marriage

Answer 7

• law prohibiting class of adults from marrying likely to be invalidated unless gov can demonstrate that the law is narrowly tailored to promote a compelling or, at least, important interest
• ban on interracial marriage triggers and fails strict scrutiny
• same-sex marriage - all states are required to recognize, due to fundamental liberties of 14th Am (Due Process and Equal Protection)
• statutes restricting rights of prison inmates to marry though are upheld if reasonably related to legitimate penological interests
• minimum age reqs - not seen as substantially burdening the right + therefore subject to rational basis review

Question 8

Reproduction

Answer 8

• indivs have fundamental right to reproduce that can’t be limited by the state
• state can’t prohibit distribution of nonmedical contraceptives to adults or minors

Question 9

Parental Rights

Answer 9

• included as fundamental rights
• include companionship, care, custody, + upbringing of children

Question 10

Extended Family

Answer 10

• fundamental right for family members, even extended ones, to live together
• doesn’t extend to unrelated people though

Question 11

Obscene Reading Material

Answer 11

• right to privacy includes freedom to read obscene material in one’s home (except child pornography) but not the right to sell, purchase, or transport such material

Question 12

Collection + Distribution of Personal Data

Answer 12

• NO privacy right involved here
• state may reasonably gather + distribute personal info about its citizens

Question 13

Right to Travel

Answer 13

• individuals have fundamental right to travel from state to state AND to be treated equally after moving into a new state
  -> not every restriction on right to cross state lines is an impairment of the right to travel though
• international travel is NOT a fundamental right, but it is protected from arbitrary federal interference by 5th Am Due Process clause -> rational basis standard applies

Question 14

Right to Equal Treatment in a New State

Answer 14

• problem arises when a state imposes a minimum durational residency requirement for receiving its benefits or otherwise dispenses state benefits based on the length of time a person has resided in the state

Examples to know
INVALID
- 1-yr residency req to receive full welfare benefits
- 1-yr residency to receive state-subsidized medical care
- 1-yr residency to vote in state

VALID
- 30-day residency to vote in state
- 1-yr residency to get divorced

Question 15

Right to Vote

Answer 15

• fundamental right
• restrictions on the right, other than on the basis of residence, age + citizenship, are INVALID unless pass strict scrutiny

Question 16

Restrictions on the Right to Vote

Answer 16

• restrictions based on property ownership usually invalid (except special purpose elections, like water storage districts)
• reasonable time periods are valid
• can require voters to show valid gov ID
• poll taxes are unconstitutional
• can require early registration to vote in primaries, but can’t prohibit political parties from opening their primary elections to anyone, whether or not registered with the party

Question 17

One Person One Vote Principle

Answer 17

• applies whenever any level of gov decides o select representatives to a gov body by popular election from individual districts
• for state and local elections, populations of voting districts must be substantially equal
  -> state must show that deviation from mathematical equality is reasonable + tailored to promote a legitimate state interest (10% is presumptively valid though, + 16% has been upheld)
• need almost exact mathematical equality for congressional districts (although Congress’ methods for apportioning reps among states get deference -> not subject to mathematical equality req)
• districts can be measured using total population

Question 17

Exceptions to the One Person One Vote Principle

Answer 17

• apportionment req doesn’t apply to officials who are appointed or elected at large
• one person, one vote principle doesn’t apply to elections of officials who don’t exercise “normal governmental authority” but rather deal with matters of special interest in the community

Question 18

Gerrymandering

Answer 18

• race (and presumably other suspect classifications) can’t be the predominant factor in drawing boundaries of voting districts unless the district plan can satisfy strict scrutiny
• political gerrymandering though is a non-justiciable political question
• states are allowed to use independent commissions to avoid gerrymandering (rather than having state legislature redistrict)

Question 19

Candidate Qualifications

Answer 19

• states can’t charge candidates a fee that makes it impossible for indigents to hold office
• ballot access regs must be reasonable + nondiscriminatory means of promoting important state interests
  -> state may require candidates to show reasonable support to have their names placed on the ballot

Question 20

Campaign Funding

Answer 20

• gov is allowed to allocate more public funds to the two “major” parties than to “minor” parties for political campaigns

Question 21

Right to Bear Arms

Answer 21

• 2nd Am protects right to bear arms for self-defense, including right to keep handgun at home + right to carry handgun in public

Question 22

Gun Permits

Answer 22

• for gun permit law to be constitutional, criteria must be clear
• a law that gives an official discretion in granting permits is unconstitutional
• also unconstitutional to require someone who is applying for a concealed carry permit to show they need it for safety

Question 23

Standard of Review

Answer 23

• if a regulation burdens an individual’s right to keep and bear arms then gov must justify the reg by demonstrating it’s consistent w/ country’s historical tradition of firearm regulation
• not sufficient to show the regulation promotes an important interest

Question 24

Right to Fair Notice

Answer 24

• laws that regulate people or entities must give fair notice of conduct that is forbidden or required
• a reg that fails to give fair notice violates Due Process

Question 25

Unspecified Rights

Answer 25

• intimate sexual conduct
• right to refuse medical treatment
• in both of these cases, SCOTUS has sort of recognized the right but hasn’t specifically said under what standard it’s reviewed