Substantive Due Process Flashcards
Substantive Due Process Generally
Substantive due process is a source of fundamental individual rights not spelled elsewhere in the constitution. The government MAY NOT infringe on these fundamental rights.
Two (2) Categories of Liberty Interests
Liberty interests can be split in to two (2) categories, non-fundamental interests, and fundamental interests.
Fundamental Rights
Include the right to privacy and personal autonomy. The right to make decisions about personal matters.
Right to Privacy
- Abortion
- Right to contraception
- Right to marry
Abortion Rights
Prior to viability, the state may regulate abortion any way it wants as long as the regulation does not place an undue burden on the woman’s right to choose. (An undue burden is a substantial obstacle.) After viability, the state may absolutely prohibit abortions, unless it is necessary to preserve the health or life of the mother. Requiring parental consent without judicial bypass is not an undue burden, as well as a 24-hour waiting period. THERE MUST ALWAYS BE AN EXCEPTION TO PROTECT THE MOTHER’S LIFE OR HEALTH
Right to Contraceptives
State cannot prohibit distribution of contraceptives, whether single or married
Right to Marry
state cannot prohibit anyone from marrying even same sex. RIGHT TO DIVORCE AS WELL.
Parentage & Procreation: the state cannot limit an individual of reporduction we have the right to produce
Right to Travel
individuals have a fundamental right to interstate travel from state to state which encompasses the right to leave and enter another state and to be treated equally as if they were permanent residents of the state.
Right to Vote
anyone over 18 has the right to vote and it is deemed to be a fundamental right.
15Amendment (no race discrimination in voting)
19Amendment (no sex discrimination in voting)
24Amendment (no poll taxes)
1st Amendment
Right of Association – right to belong to political groups, freedom of speech
Non-Fundamental Rights Under Substantive Due Process
Economic rights, such as the right to contract and the right to practice a profession.
Standard For Review For Non-Fundamental Right - Minimal Level of Review
when a law or the government infringes on a non-fundamental right the court will apply a minimal level of review using the RATIONAL BASIS TEST. Under the rational basis test, a law that infringes on a non-fundamental right will be upheld if it related to any legitimate government purpose. Under this easy test, any law that infringes upon an economic regulation will be upheld under the due process clause.
What About When State Is Acting Pursuant to 14th Amend?
When a state acts pursuant to its police power, and passes a law to protect the health, safety, or welfare of its citizens, this will always be considered a legitimate state objective. therefore, in addition to economic regulations most social welfare regulations will also be upheld under the rational basis test. (EX: law making insurance companies’ charge less for life insurance or more for life insurance)
What Are The Requirements For Due Process Rights To Be Waived?
If it is waived voluntarily and knowingly
