Substantive Due Process

Due Process Clause

14th Amendment; “Nor shall any state deprive any person of life, liberty, or property, without due process of law”

Substantive Due Process refers to WHAT

“Liberty”

SDP focuses on _____

EPC focuses on _____

SDP focuses on WHAT

EPC focuses on WHO

Fundamental Rights Scrutiny Level

Strict Scrutiny

The burden of proof at strict scrutiny or intermediate scrutiny is on who?

Once Plaintiff has alleged a violation deserving heightened scrutiny, the burden shifts to the government to justify it.

Government must prove it had a compelling interest and the means were necessary

Strict Scrutiny buzzwords

Ends: Compelling

Means: Lease restrictive/ necessary

What is SDP?

 Use of the due process clause to challenge regulation in areas of personal rights or interests

Who has the burden of proof at Rational Basis or Rational Basis with Bite?

Plaintiff challenges a statute presumed to be constitutional. Has to prove

• the end was not legitimate; OR

• the means were irrational

What are the three levels of scrutiny a court might use in an SDP case?

Strict Scrutiny, Rational Basis with Bite, Low Level Rational Basis

fundamental right, liberty interest/quasi-fundamental right

Liberty interests buzzwords

Ends: legitimate/lawful

Means: rational/reasonable

Autonomy interest buzzwords

Ends: legitimate/lawful

Means: rational/reasonable

Analysis of ends/means fit for Liberty Interest

AD HOC; Rational in fact

Analysis of ends/means fit for Autonomy Interest

Categorical; Feeble in fact

Analysis of ends/means fit for Fundamental Right

The ends/means fit must be TIGHT;

CATEGORICAL; Fatal in fact

The incorporated Bill of Rights scrutiny level

SS; fundamental right

Courts will protect super-majoritarian rights against simple legislative majorities. What is a super-majoritarian right?

Requires ¾ of the states to invoke an amendment

FN4 in Carolene Products (1938)

Following Lochner-era, Warren Court began to recognize a two-tiered scrutiny approach (latched on to FN 4 of Carolene Products)

1. All economic claims received rational basis, however the court expanded the use of the DPC in areas of personal rights/interests (judicial activism)

2. The Warren Court was halted by Nixon, and the Burger/Rehnquist/Roberts courts: (1) noted that no new fundamental rights exist and (2) narrowed existing “fundamental rights” decided by the Warren Court