Substantive Due Process

Question 1

What is the source of “substantive due process”?

Answer 1

There are TWO DP clauses:

1. 5th amendment, applies to fed gov
2. 14th amendment, applies to state/local gov

The same standards apply to both

Question 2

What are the applicable standards for “substantive due process” claims?

Answer 2

1. If FUNDAMENTAL RIGHT –> Strict Scrutiny (gov has burden of proof)
2. All other cases –> rational basis (challenger has burden of proof)

Question 3

What is the rule re: “rebuttable presumptions” and “substantive due process”?

Answer 3

If facts are presumed against a person so that she cannot demonstrate that she is qualified for an important benefit/right, the “irrebutable presumption” may violate DP.

NOTE: it won’t be invalid merely bc it’s an irrebutable presumption. The regular test applies.

Question 4

What is the rule re: “fair notice” and “substantive due process”?

Answer 4

Laws that regulate people or entities MUST give FAIR NOTICE of conduct that is forbidden or required.

A regulation that fails to give fair notice violates DP.

Question 5

What is the relationship btwn “substantive due process” and “equal protection” ?

Answer 5

Both substantive DP and equal protection require court to review substance of a law rather than procedures employed

If limits liberty of all persons ---> usually DP question
If limits person or class of persons --> usually EP claim

Question 6

What are “fundamental rights” for the purpose of substantive DP (and equal protection)?

Answer 6

1. Right to interstate travel
2. privacy
3. right to vote
4. 1st amendment