Substantive Due Process

Question 1

What is the focus of substantive due process?

Answer 1

Justification for government action

Question 2

Explain government regulation under substantive due process

Answer 2

Government regulation must bear some relationship to the legitimate ends of government

Evidence based

Question 3

What was the holding in Jacobson v. Massachusetts?

Answer 3

Held, power to order vaccination = legitimate
exercise of police power

Question 4

What is the modern constitutional approach for substantive due process?

Answer 4

Laws which infringe on individual liberties of citizens must be grounded on some appropriate state interest and must bear some relation that interest

Question 5

What are the 3 levels of review for Substantive due process and equal protection?

Answer 5

1. Rational Basis Test
2. Intermediate Review
3. Strict Scrutiny

Question 6

Explain the Rational Basis Test

Answer 6

Law must be rationally related to a legitimate government interest

It is applied when no fundamental right or suspect class is involved

Question 7

Explain Intermediate Review under Equal Protection

Answer 7

Law must be substantially related to important government objectives

This is applied when law classifies according to sex or (il)legitimacy of birth

Question 8

Explain Strict Scrutiny

Answer 8

Law must be necessary to achieve a compelling state interest and must be the least restrictive alternative to achieve that goal

Applied when law infringes on fundamental right or liberty or uses a suspect classification

Question 9

Define a “fundamental right”

Answer 9

enumerated in the Bill of Rights, or, like the right to procreate, both an intimate personal choice AND “deeply rooted in the Nation’s
history and tradition”

Question 10

What is a suspect class?

Answer 10

1. race, national origin, alienage; based on immutable characteristics
2. political powerlessness
3. a history of discrimination
4. stereotypes

Question 11

What are some concerns that lead to the inclusion of the least restrictive alternative in strict scrutiny?

Answer 11

over-breadth/overinclusive

and

under-inclusiveness

Question 12

What are some critiques of substantive due process?

Answer 12

• Gives too wide latitude to judges
• Outcome determinative
• Not well-suited to public health regulation
• Possible alternative format for review

– “sliding scale”

Question 13

What are the 4 criteria for substantive due process
review from Jacobson?

Answer 13

1. Public health necessity
2. Reasonable means
3. Proportionality
4. Harm avoidance

Question 14

What does Equal Protection focus on?

Answer 14

Focuses on government classification of persons

Classification must not unfairly burden specific groups or deprive them of important rights

Question 15

Explain Equal Protection

Answer 15

Laws which treat different classes of citizens
differently must bear some relation to a
government purpose and must treat similarly
situated individuals similarly