III. Fundamental Rights

fundamental rights

Fundamental rights are important liberties that require a high degree of protection against government encroachment

SDP vs. EPC

Substantive Due Process (SDP) → protects liberty interests from government interference

Equal Protection (EPC) → protects against discriminatory classifications

Exam tip: Same issue can arise under both

• e.g., same-sex marriage → SDP (Obergefell v. Hodges) AND EPC

SDP v. PDP

substantive:

• Limits what government can do

• Protects fundamental rights from interference

procedural:

• Limits how government acts

• Requires fair procedures before deprivation of life, liberty, property

SDP Framework

1. identify the right

2. infringement

   1. The Court asks if the government has "directly and substantially" interfered with the right

3. level of scrutiny

right identification

Enumerated → automatically fundamental

Unenumerated → apply test

Enumerated Rights

Explicitly written in the Constitution (e.g., Voting, Second Amendment, Free Speech). These receive SS.

Unenumerated rights

Not written in the text but recognized by the Court (e.g., Marriage, Family Autonomy).

• Deeply rooted in history and tradition

• Implicit in ordered liberty

• Carefully described

• (From Glucksberg + reaffirmed in Dobbs v. Jackson Women's Health Organization)

The Identification Test (Glucksberg and Dobbs)

1. Is the right "deeply rooted in this Nation’s history and tradition"?.

2. Is it "implicit in the concept of ordered liberty"?

Step 2: Infringement

The Court asks if the government has "directly and substantially" interfered with the right. cannot be incidental.

Step 3: Level of Scrutiny (Means-Ends Analysis)

Fundamental? → SS

Non-fundamental? → RB

Rational Basis (Non-Fundamental)

The law must be rationally related to any legitimate conceivable purpose.

Examples:

• Abortion (Dobbs)

• Assisted suicide (Glucksberg)

• Education (Rodrigues)

• Economic rights

Abortion

Key Cases: Roe/Casey/Dobbs

Takeaway: SDP: Abortion is no longer a fundamental right; Dobbs shifted the standard from "Undue Burden" to Rational Basis

Assisted suicide

Key Case: Glucksberg

Takeaway: SDP: There is no fundamental right to assisted suicide (Glucksberg)

education

Key Cases: Rodriguez

Takeaway: SDP: Education is not a fundamental right under the U.S. Constitution, wealth not a suspect class; use Rational Basis

strict scrutiny (fundamental)

The law must be necessary (narrowly tailored / least restrictive means) to achieve a compelling government interest.

Voting only real one here.

Not all enumerated rights = automatic SDP analysis. Some are incorporated via the 14th Amendment, but tested under their own doctrines (e.g., speech)

the fundamental rights

Enumerated: Voting

Unenumerated:

• Marriage

• Family autonomy

• Contraception

• Medical decision making

• Interstate travel

voting

Voting is fundamental, but often analyzed under EPC

Severe burdens → strict scrutiny

Lesser burdens → balancing (Anderson-Burdick)

Marriage

Key Cases: Loving / Obergefell

Takeaway: SDP: Marriage is a fundamental right (liberty) essential to dignity, association, autonomy. Triggers Strict Scrutiny

Family

Key Cases: Meyer / Pierce

Takeaway: SDP: Parents have a fundamental right to control the upbringing and education of their children

Medical

Key cases: Griswold (contraception); Cruzan (decision-making) 

Cruzan takeaway: There is a fundamental right to refuse life-sustaining treatment.

Griswold 

Law challenged: State ban on the use of contraceptives by married couples.

Takeaway: The Court recognized a fundamental right to marital privacy under Substantive Due Process, finding that “penumbras” of the Bill of Rights create a protected zone of privacy that includes the use of contraception.

Travel

Key Cases: Saenz v. Roe

Takeaway: SDP: There is a fundamental right to interstate travel and migration; states cannot create "tiers" of citizenship

special topic: access to courts

On an exam, primarily analyze it under PDP.

Boddie v. Connecticut: Fundamental when tied to basic rights (e.g., marriage dissolution)

United States v. Kras: Not fundamental for economic interests

PDP

PDP requires fair procedures before the government intentionally deprives a person of life, liberty, or property

The gov’t must follow certain procedures [(i) notice, (ii) the opportunity to be heard, and (iii) decision by a neutral decisionmaker] before it can take away your life, liberty, and property rights

PDP framework

1. Is there a Protected Interest?

   1. life, liberty, property

2. Was there a "Deprivation"?

   1. The government action must be intentional or reckless; mere negligence (an accident) does not trigger PDP

3. How Much Procedure is Due? (Mathews v. Eldridge Test)

liberty

Freedom from restraint, right to work 

"Stigma-Plus" (reputation harm + loss of a legal status like a job) (Paul v. Davis).

Paul v. Davis

Takeaway: PDP: Reputation alone is not "liberty" unless accompanied by the loss of a legal status (Stigma-Plus)

property

Must be a legitimate claim of entitlement (not expectation) created by state law. Not just physical items. 

Examples: welfare benefits (Goldberg) or public jobs that aren't "at-will" (Roth/Perry).

Step 2: Was there a "Deprivation"?

The government action must be intentional or reckless; mere negligence (an accident) does not trigger PDP

Step 3: How Much Procedure is Due?

Mathews v. Elridge balancing test

The Mathews v. Eldridge Balancing Test

If there is a protected interest and deprivation, the court applies the Mathews balancing test to determine what procedures are required, such as notice, hearing, and opportunity to present evidence.

1. Private interest

   1. The private interest affected by the official action

2. Risk of error + value of additional safeguards

   1. Risk of erroneous deprivation and probable value of additional procedural safeguards

3. Government burden

   1. Govt’s interest, including fiscal and administrative burdens

After applying Mathews, conclude what procedures were due.

“standard procedures”

Courts look at:

• Type of notice (what kind?)

• Type of hearing (before or after deprivation?)

• Ability to present evidence

• Cross-examination

• Burden of proof

• Neutral decisionmaker

mathews test outcome examples

Goldberg:

• Private interest very high (welfare = survival)

• Risk of error = high

• Government burden = moderate

RESULT: Pre-termination hearing required with testimony + cross-examination

Mathews:

• Private interest = lower (disability, not immediate survival)

• Risk of error = lower (medical records)

• Gov burden = high

RESULT: No pre-termination hearing required. Paper review is enough

Public Employment

Key Cases: Roth / Perry

Takeaway: PDP: Public employees do not have a property interest unless state law creates a legitimate entitlement to the job

Benefits

Key Cases: Goldberg / Mathews

Takeaway: PDP: Welfare benefits require a pre-termination hearing (Goldberg); disability benefits do not (Mathews)

RECAP

“If the right is fundamental, the law is subject to strict scrutiny and will be upheld only if it is narrowly tailored to serve a compelling government interest.”

the flow: Identify → Infringement → Level of Scrutiny → Apply