III. Fundamental Rights

fundamental rights

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

Substantive Due Process vs Equal Protection

SDP	Focuses on what right the law infringes for everyone
EPC	Focuses on whom the law excludes or harms (classifications)

Substantive vs. Procedural Due Process

Substantive	Limits what the government is allowed to do. Focuses on why the government acts; it limits the substance of what the government can do by protecting certain fundamental rights from interference, regardless of the procedures used
Procedural	Regulates how (the procedures used) the government deprives someone of life, liberty, or property. Focuses on how the government acts; it requires fair procedures (notice and a hearing) before the government deprives an individual of life, liberty, or property

SDP Framework

Step 1: Identification (Is the Right "Fundamental"?)

The Court determines the level of protection based on the nature of the right

Step 2: Infringement

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

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

Step 1: Identification (Is the Right "Fundamental"?)

The Court determines the level of protection based on the nature of the right

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).

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

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

strict scrutiny or rational basis.

Strict Scrutiny (Fundamental Rights)

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

Rational Basis (Non-Fundamental)

The law must be rationally related to any legitimate conceivable purpose

Fundamental Enumerated Rights

Voting

Fundamental unenumerated rights

a. Marriage

b. Family and reproductive autonomy / privacy

c. Right to purchase and use contraceptives

d. Right to refuse medical treatment

e. Medical refusal (but No right to physician-assisted suicide)

f. Personal autonomy

Rights Recognized as Fundamental (Strict Scrutiny)

• Marriage: Includes interracial marriage (Loving) and same-sex marriage (Obergefell).

• Family Autonomy: The right to the care, custody, and management of one's children.

• Reproductive Autonomy: Specifically the right to purchase and use contraceptives.

• Interstate Travel: The right to move freely between states; durational residency requirements for benefits are prohibited.

• Voting: Essential to democracy; severe burdens receive strict scrutiny.

Medical Refusal: The right to refuse unwanted medical treatment (Cruzan)

Interests Subject to Rational Basis Review

• Abortion: Post-Dobbs, it is no longer a fundamental right.

• Physician-Assisted Suicide: Not recognized as a fundamental right (Glucksberg).

• Education: Not a fundamental right under the U.S. Constitution (Rodriguez), though absolute denial to undocumented children is scrutinized under EPC.

• Foreign Travel: Can be restricted for national security.

Economic Rights: General business regulations and freedom of contract

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

Marriage

Key Cases: Loving / Obergefell

Takeaway: SDP: Marriage is a fundamental right (liberty) essential to dignity and 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: Cruzan / Glucksberg

Takeaway: SDP: Competent persons have a right to refuse treatment (Cruzan), but there is no fundamental right to assisted suicide (Glucksberg)

Travel

Key Cases: Saenz v. Roe

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

Voting

Key Cases: Reynolds v. Sims

Takeaway: SDP: Voting is a fundamental right essential to democracy; severe burdens trigger Strict Scrutiny

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

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

Step 1: Is there a Protected Interest?

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. Eldridge Test)

Step 1: Is there a Protected Interest?

Liberty	Freedom from restraint, right to work, "Stigma-Plus" (reputation harm + loss of a legal status like a job) (Paul v. Davis).
Property	Not just physical items, but "legitimate claims of entitlement" created by state law, such as 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

Factor 1: The private interest affected by the official action.

Factor 2: The risk of an erroneous deprivation and the probable value of additional procedural safeguards.

Factor 3: The government’s interest, including fiscal and administrative burdens

Standard Procedures Required: Notice, Opportunity to be Heard, and a Neutral Decision-maker

Employment

Key Cases: Roth / Perry

Takeaway: PDP: Public employees only have a property interest if state law creates a legitimate entitlement to the job

Benefits

Key Cases: Goldberg / Mathews

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

Reputation

Key Cases: Paul v. Davis

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