Topic: Substantive and Procedural Due Process Flashcards
What do the Constitution and Bill of Rights generally protect individuals from?
Government action.
Note: Does NOT Include:
- Actions not committed by government
- Acts that qualify as government INaction
What are the 4 Constitutional Standards for PH actions established in Jacobsen (1905)?
- PH Necessity
- Reasonable Means - “real or substantial relation” to the problem
- Proportionality - burden v. benefit
- Harm Avoidance - no undue risk
How can you use Jacobsen (1905) on the exam?
Jacobsen’s standard is no longer “current precedent” because it has been replaced by substantive DP analysis. However, it is considered “persuasive” authority, in that you can use it to help explain why a PH act does or does not meet the requirements of the scrutiny standard.
According to Jaconbsen (1905), when do private rights over come PH power?
- When there will be harm to the individual
- If common knowledge doesn’t support the PH action
- When you can’t otherwise uphold the rule under the Jacobsen standard
- When the law is arbitrary or capricious
What is the importance of Lochner v. NY (1095)?
Lochner has been overturned. However, it is important because:
- It created the “Lochner Era” in which SCOTUS struck down important health and social legislation
- It demonstrates unwarranted judicial interference with democratic control over the economy
- It upheld individual liberties over the government’s ability to make laws for the public good.
From which amendments do we get Due Process?
- The 5th amendment - applies to FEDERAL Government
- The 14th amendment - extends the 5th amendment to the STATES
What is Procedural Due Process (PDP)?
The principle that prior to depriving an individual of life, liberty, or certain property rights, the govt must provide procedures to ensure that the decision is fair
What are the procedures that may be required under PDP?
Notice Hearing Neutral fact-finder Counsel Cross-examination “Clear & Convincing” evidentiary standard Right to appeal Verbatim transcript for appellate purposes
How much PDP is due?
It depends.
General Rule: The greater the deprivation of liberty, the greater process required.
Matthews v. Eldrigde (1976)
- What area does this case deal with?
- What are the 3 factors courts balance?
- PDP
1. Nature of interests involved
2. Risk of erroneous deprivation of liberty (incorrect decision avoidance)
3. Fiscal or administrative burdens of adding PDP
Define Substantive Due Process (SDP)
The constitutional principle that focuses on the justification for government action by saying the government regulation must bear some relationship to the legitimate ends of government.
What are some critiques of SDP?
- Too much discretion for non-elected judges
- Overly outcome-determinative (the level of scrutiny assigned often determines the outcome of the case)
- Does not work well for PH regulation
- Sliding scale may be a better format (especially for PH purposes)
What is the Equal Protection Clause (EPC)?
The clause in the 14th amendment that focuses on government classifications of persons. Laws which treat different classes of citizens differently must bear some relation to a government purpose and must treat similarly situated individuals similarly.
SDP Standards
Which rights fall under Rational Basis?
Everything that is not under Strict Scrutiny or otherwise stated (like abortion).
Specific ones: - Right to contract - Economic activity
SDP Standards
Which rights merit strict scrutiny?
“Fundamental” rights, including: Right to marry Right to procreate Right to purchase/use contraceptives
