Substantive due process Flashcards
Due process versus equal protection
If a law denies a fundamental right to everyone, it violates due process.
If a law denies a fundamental right to only some, it violates equal protection.
Fundamental rights: travel
There is a fundamental right of interstate travel and settlement, although there is no fundamental right to travel internationally.
States can impose reasonable residency requirements for political participation and for government benefits:
- Most are 30–90 days. One year is too long for everything except in-state tuition and jurisdiction to issue a divorce;
- A state cannot have a tax scheme that favors long-term residents over recently arrived residents.
Fundamental rights: voting
Voting rights are a fundamental right for all citizens age 18 and over.
The level of scrutiny applicable to a government restriction of voting rights depends on the degree to which the restriction impacts the exercise of this right: more significant impacts require higher levels of scrutiny.
Poll taxes are unconstitutional because they burden the fundamental right to vote.
Fundamental rights: ballot access
There is no fundamental right to have one’s name on an election ballot or to hold office through election or appointment.
States can impose requirements for candidates to be listed on a ballot, such as longer residency, filing fees, and nomination petitions, so long as serious candidates can reasonably comply.
If the requirements become so onerous that they effectively bar access to the ballot, then they are unconstitutional.
Privacy: marriage
An individual’s decision to marry is a fundamental right under the right to privacy, and laws that unduly burden a decision to marry trigger strict scrutiny.
Although there are all sorts of requirements for marriage—e.g., age or restriction on marrying close relatives—substantial interference with the marriage, including same-sex marriage, is unconstitutional.
Privacy: contraception
It is a fundamental right for everyone, whether married or not, to purchase contraceptives.
Privacy: cf. sexual intimacy
The Supreme Court has ruled that the government has no legitimate interest in regulating non-commercial sexual intimacy between consenting adults, including between same-sex couples.
Granted, the Court appears to have stopped short of ruling that it is a fundamental right.
Privacy: abortion
A woman has a right to terminate her pregnancy until viability of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve the life and health of the mother.
States regulate abortion in a variety of ways, but they cannot impose an undue burden on the woman’s right to terminate her pregnancy.
Allowed under the undue burden standard:
- “Informed-consent” requirements;
- 24-hour waiting periods;
- Parental notification requirements for minors.
Not allowed under the undue burden standard:
- Parental consent requirements, with a narrow exception for requirements for consent of a parent or judge that require a judge to give consent if the underage person understands the nature of an abortion;
- Spousal requirements.
The government need not finance abortions.
Privacy: parental rights
Parents have a fundamental right to raise their children as they see fit, including with respect to choice of religion or private schools.
They can, however, lose their rights through abandonment, abuse, or neglect.
tTe right to privately educate one’s child outside the public school system is subject to reasonable educational standards imposed by the state.
Privacy: family relations
The right includes the right to live together with close relatives.
Privacy: obscene material
There is a fundamental right to read obscene material in the privacy of one’s home—except for child pornography.
There is not a fundamental right to purchase, sell, import, or distribute such material.
Privacy: refusal of medical treatment
It is unclear whether there is a fundamental right to refuse medical treatment.
But there is a liberty interest in refusing medical treatment.
There is no right to commit suicide.
Abortion: public facilities and employees
A state may prohibit all use of public facilities and public employees in performing abortions, a person’s constitutional right to have an abortion notwithstanding.
Voting: residency requirements
A restriction on the right to participate in the political process of a governmental unit to those who reside within its borders is typically upheld as justified on a rational basis.
Short-term residency requirements, e.g., 30 days, are permitted.
By contrast, excessive residency requirements—e.g., six months residency—may draw strict scrutiny.
Congress controls the residency requirements for presidential elections, whereas states control residency requirements for all other elections.
