Substantive Due Process

Substantive Due Process vs Procedural Due Process

a)      Substantive Due Process vs Procedural Due Process

i)        Procedural Due Process:

(1)   procedural regularity and adequacy

(2)   right to process before govt can deprive of life, liberty, or property

(3)   NOT a guarantee of outcome or result

ii)      Substantive Due Process:

(1)   Protection against arbitrary, irrational, fundamentally unfair govt action.

(2)   Identifying and securing fundamental rights not specifically enumerated in the Constitution.

Substantive Due Process: Economic Liberty Interests

i)        Lochner era: Court applies many subjective and reasonableness decisions that struggle to self-reconcile holdings. Covers things like hours worked, minimum wages, price fixing and employment rights and laws. Unsustainable and arbitrary.

(1)   Lochner (1905)

(a)   Trying to balance freedom of economic activity/contract under the 14A DPC with state police powers.

(b)   Holmes, dissent: what are we doing – we are arbitrarily substituting our judgment for that of the legislatures.

(2)   Nebbia (1934) (moving away from Lochner)

(a)   States CAN regulate economic activity within their borders based on legitimate state interests (public good) as long as not arbitrary or unreasonable.

ii)      Post-Lochner – the Modern Approach:

(1)   Rational Basis: extremely deferential to upholding state laws regulating economic, commercial, and business interests as long as:

(a)   Rational basis for the regulation

(b)   Legitimate state police power interest (state interest)

(c)   Exception: State Farm and limitation on punitive damages and state tort laws.

(i)     Punitive damages that are grossly excessive (rule of thumb is 4:1, no more than single digits) or they violate the 14A DPC.

(ii)   Gore factors for grossly excessive:

1.      degree of reprehensibility (disregard, malice, deceit, repetition, abuse of positions, OR simply accident)

2.      ratio of punitive to compensatory damages

3.      alternative sanctions for the D.

Substantive Due Process: Personal liberties/fundamental rights

a)      Liberty interests 2: personal liberties (Family, marriage, personal autonomy, parental right, privacy interests)

i)        Step 1: define specifically the interest at stake.

ii)      Step 2: Either deeply rooted interest in history AND tradition OR

iii)    Step 2a: Interest sufficiently important and fundamental that it should be protected today (even if not history/tradition).

iv)    ALTERNATIVE (Glucksberg)

(1)   Importance of individual interest balanced against

(2)   Interest of the state in regulating

Liberty Interest: Parental Rights

(1)   Direct upbringing and education of children learning foreign language (Meyer)

(2)   Send kids to parochial school (Pierce)

(3)   What relative child will visit and when (Troxel)

(4)   NOT a liberty interest: bio father right to challenge paternity of child born within someone else’s marriage outside procedure of state law (Michael H.)

Liberty Interest: Marriage Rights

i)        Marriage rights:

(1)   Marry someone of different race (Loving)

(2)   Without regard to financial status (Zablocki)

(3)   Without permission of prison warden (Turner)

(4)   Same sex (Obergefell)

Dobbs

i)        Abortion rights (Dobbs)

(1)   Overturns Casey’s undue burden test pre-viability (law invalid if it has purpose or effect of substantial obstacle to women seeking abortion)

(2)   Abortion-restriction laws:

(a)   Strong presumption of validity

(b)   Must be sustained if rational basis (rationally based on serving a legitimate state interest)

(c)   Legit state interests: respect for prenatal life at all stages, maternal safety, eliminating certain procedures, integrity of medical profession, mitigating fetal pain, preventing discrimination on race/sex/disability.

Liberty interest: Right to die

(1)   Can refuse care if competent (Cruzan)

(2)   NOT liberty interest doctor-assisted ending of life. (Glucksberg) No general right to die.

Liberty Interest: Right to keep and bear arms

i)        Right to bear arms (Bruen test -> refined in Rahimi)

(1)   Textualist step: Does the 2A by its terms apply (“keep” OR “bear” arms?) IF  IF yes ->

(2)   Historical step: Are there historical analogues for the type of law at issue? If NO -> law invalid against 2A liberty interest.

(a)   Doesn’t need to be a twin, but needs to be close (Rahimi)

(b)   Unusual weapons (sawed off shotguns, machine guns, etc) may not fall under Bruen.

Standards of review for liberty interests

• Fundamental rights: parental, marriage, family situation, denial of care = strict scrutiny

  • Burden of proof on the government/enactor of policy

  • Compelling state interest

  • Narrowly tailored (or in case of P&I, the only way the necessity shown by the state can be met)

• Economic rights and all other non-fundamental liberty interests = rational basis

  • Presumptive and deferential - burden to disprove on the challenger/petitioner

  • Legitimate govt purpose

  • Using a method rationally connected to further that purpose