*Substantive Due Process

Question 1

Substantive Due Process

Answer 1

14A § 1:….No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Question 2

1) Background/ Incorporation

Answer 2

a) Priv/Immunity Clause NOT the portal for BoR/fundamental rights incorporation upon states
i) Slaughterhouse cases: Court interpreted P/I clause narrowly (and still does) as protecting the P/I of U.S. citizenship, not citizenship of a st, therefore P/I Clause does restrict police power of states
(1) F: upheld LA laws granting a monopoly to slaughterhouse in NOLA

Question 3

b) Incorporation (via DP Clause)-i) Interpretations:

Answer 3

(1) Solely intended to deal with the formerly enslaved
(2) total incorporation of BoR through due process clause
(3) Selective incorporation (won): is right fundamental to scheme of ordered liberty and system of justice?
(a) Only 2 rights from BoR not incorporated: right to jury trial in civil cases; right to indictment by grand jury before criminal trialso total incorporationist’s practical hopes were realized (everyone won)

Question 4

c) Procedural DP:

Answer 4

Must have sufficient notice and hearing for deprivation of life, liberty, or property

i) Eldridge: degree of procedural DP dependent on gravity of deprivation
(1) balance: extent of deprivation (priv interest) and public interest
ii) Due process, taken literally, relates to procedural DPsubstantive due process created from “liberty” right