Substantive Due Process History Flashcards
What is Substantive Due Process
Reading into the constitution unenumerated rights.
Whether the gov’t has an adequate reason for taking away a person’s life, liberty or property.
Shelley v. Kramer U.S. (1948)
Held that a housing covenant which stated the property could be owned only by whites was unconstitutional.
This was justiciable by the SC, because the state was involved in enforcing the covenant.
The most popular state action doctrine.
State Action Doctrine
In order for a plaintiff to have standing to claim that an action is unconstitutional, they must demonstrate that the government (local, state or federal) was responsible for the violation rather than a private actor.
State Action Doctrine Exceptions
- Public Functions Exception
Private entity must comply with Const. if it is performing a task that has been traditionally, exclusively done by the gov’t.
E.g., Google acting like a city. - Entanglement Exception
Private conduct must comply with constitution, if it was authorized, encouraged or facilitated by the government.
E.g., Google getting checks from the treasury dep’t.
Lochner Era
A period of economic substantive due process, where the SC found a lot of economic regulation as unconstitutional.
The SC attempted to ensure that laissez faire would apply throughout the economy.
They applied SS to ALL economic regulation.
No doctrine here.
E.g., they struck down minimum wage laws, maximum amount of hours a worker can work laws, and laws related to public health and safety regulation.
Slaughterhouse Cases
Post-Civil war cases where the SC interpreted the 13th and 14th amendments for the first time.
Specifically, they looked at:
- Privileges & Immunities Clause;
- Equal Protection Clause; and
- Due Process Clause
They interpreted the P&I clause as a virtual nullity.
West Coast Hotel v. Parrish, U.S. (1937)
First time the SC finally started to leave the lochner era.
They held a state law which authorized a minimum wage for women and minors as constitutional.
United States v. Carolene Products Co., U.S. (1938)
Theory Toolbox
Footnote 4 – most famous footnote in con. law
Set forth guidelines for helping determine whether to apply RBT v. SS
If the legislation:
I.R.P. Its Really Pathetic
- Infringes on a specific prohibition of the Constitution, such as the BoR;
- Restricts or infringes upon the political process;
- Prejudices “discrete and insular minorities.”
Helped determine whether an economic regulation should be struck down.
Frontiero v. Richardson, U.S. (1973)
Theory Toolbox
Factors that held determine if a classification should be subject to strict scrutiny.
H.I.P.
- History of purposeful discrimination.
- Immutable trait
- Politically powerless group.
William v. Lee Optical of Oklahoma, Inc. U.S. (1955)
Pivotal cases that held that RBT will ALWAYS be applied to economic regulations.
Further, to survive the RBT the law can be needless, wasteful or even improvident.
RBT End-Mean Analysis
End (purpose) = permissible as long as Ct can conceive ANY goal not prohibited by the Const. Means (law) = permissible as long as "rational relationship" to purpose.
Incorporation
Incorporation is the process of interpreting the word “liberty” in the DPC.
Almost everything in the BoR is incorporated, meaning they are applied to states.
Not incorporated:
5th amendment grand jury indictment clause
7th amendment jury trial in civil cases
3rd amendment quartering of soldiers (UNDECIDED)
Palko v. Connecticut, U.S. (1937)
Theory Toolbox
Selective Incorporation Test
Whether the amendment is a principle of justice so rooted in traditions and conscience of our people as to be ranked as fundamental.
Attorneys should use this test to argue that a non-fundamental right is fundamental.
Duncan v. Lousiana, U.S. (1968)
Held that a right to a jury trial in criminal cases is fundamental and therefore should apply to states via the 14th amendment.
J, Black concurrence
Wanted to just incorporate the entire BoR because they thought selective incorporation was too subjective.
