Substantive Due Process Flashcards
What are the two common standard of review in substantive due process cases?
A governmental action that infringes upon a fundamental right is generally subject to STRICT SCRUTINY.
If the interest infringed upon is not fundamental, then there need be only a RATIONAL BASIS for the regulation.
What determination about the law must be found for it to survive strict scrutiny?
The law must be least restrictive means to achieve compelling government interest.
What does “least restrictive” and “compelling interest” mean?
Least restrictive
-> there cannot be a less restrictive way to achieve the interest and the law should be neither over nor under inclusive.
Compelling interest
-> generally understood to mean necessary or crucial
Who has the burden of proof with regards to a strict scrutiny case?
The government has the burden of proof.
What determination about the law must be found for it to survive rational basis?
Law must be rationally related to a legitimate state interest (minimal scrutiny).
By what means does a law survive the rational basis standard of review?
The government’s stated interest in enacting the law need not be one that is offered when the law was passed; any legitimate reason will suffice.
In practice, what laws are commonly reviewed under the rational basis standard?
Laws related to
-> lifestyle
-> taxation
-> zoning
AND
-> punitive damages
Who has the burden of proof with regards to a rational basis standard of review case?
The burden of proof is on the challenger
What are the four most common types of fundamental rights?
Travel
Voting and ballot access
Privacy
Second Amendment
What are the principles under the fundamental right linked to travel?
Travel means from state to state.
Reasonable residence requirements or waiting periods may be imposed on the receipt of some government benefits.
Once a person qualifies as a resident, she must be treated equally.
What are the principles under the fundamental right linked to voting and ballot access?
Right to vote
-> applies to all federal, state, and local elections, including primary elections
-> despite being a fundamental right, strict scrutiny does not apply to all laws that restrict this right
-> the more significant the government restriction, the greater the degree of scrutiny
Public office and ballot access
-> no fundamental right to hold office through election or appointment, BUT all persons do have a constitutional right to be considered for office without the burden of invidious discrimination
What are the principles under the fundamental right linked to privacy?
Includes
-> marriage
-> contraception
-> intimate sexual behavior
-> parental rights
-> family relations
-> obscene material
-> right to refuse medical treatment
AND
-> right to avoid disclosure of personal medical information
What are the principles under the fundamental right linked to Second Amendment?
Guarantees an individual’s right to possess a firearm, subject to lawful regulations.
