Substantive Due Process

What does substantive due process ask?

Whether the government has an adequate reason to deprive a person of life, liberty, or property.

What is the central promise of substantive due process?

Government action must be reasonable, not arbitrary.

How does substantive due process differ from procedural due process?

Substantive due process asks whether the government may impose the restriction; procedural due process asks what procedures it must follow.

Which Due Process Clause applies to the federal government?

The Due Process Clause of the Fifth Amendment.

Which Due Process Clause applies to state and local governments?

The Due Process Clause of the Fourteenth Amendment.

What is the first step in a substantive due process question?

Identify the liberty or right restricted by the government.

What level of scrutiny generally applies when a fundamental right is restricted?

Strict scrutiny.

What level of scrutiny generally applies when no fundamental right is restricted?

Rational basis review.

What must the challenger prove under rational basis review?

That the government action is not rationally related to any legitimate government purpose.

Who bears the burden under rational basis review?

The challenger.

Do most laws survive rational basis review?

Yes. The challenger bears a heavy burden.

What must the government prove under strict scrutiny?

That its action is necessary to achieve a compelling government purpose.

Who bears the burden under strict scrutiny?

The government.

Why might a law fail strict scrutiny even if its goal is compelling?

Because a less restrictive way to achieve that goal is available.

Does strict scrutiny automatically invalidate a law?

No, but it is difficult for the government to satisfy.

What level of scrutiny generally applies to economic liberties under substantive due process?

Rational basis review.

Is the right to privacy expressly written in the Constitution?

No. The Supreme Court has recognized specific privacy rights implicitly.

Is the right to marry fundamental?

Yes. A restriction on marriage generally triggers strict scrutiny.

Is the right to procreate fundamental?

Yes.

Is the right to purchase and use contraceptives fundamental?

Yes.

Is the right to custody of one’s children fundamental?

Yes.

Does the fundamental right to keep the family together include living with extended family?

Yes.

What parental decisions receive fundamental-right protection?

Decisions concerning the upbringing of one’s children, such as religious upbringing.

Has the Supreme Court clearly specified a level of scrutiny for refusing medical treatment?

No, according to the video.

Has the Supreme Court clearly specified a level of scrutiny for consensual same-sex sexual activity?

No, according to the video.

What does the video say about a ban on private, consensual, noncommercial sexual activity between adults?

It lacks a legitimate government interest and fails even rational basis review.

Is abortion a fundamental right under the substantive due process doctrine described in the video?

No.

What level of scrutiny does the video apply to state abortion regulations under substantive due process?

Rational basis review.

Is the right to vote fundamental?

Yes.

What scrutiny applies to a policy that allows only people who have paid local taxes to vote?

Strict scrutiny, because it burdens the fundamental right to vote.

Is interstate travel a fundamental right?

Yes.

Is international travel a fundamental right under the rule described in the video?

No.

What level of scrutiny applies to the right to keep and bear arms?

It has a distinct historical-tradition test, rather than the ordinary strict-scrutiny test described in the video.

What must the government show when a firearm regulation burdens the Second Amendment right?

That the regulation is consistent with the nation’s historical tradition of firearm regulation.

Is there a fundamental right to work as a lawyer?

No.

What level of scrutiny generally applies to a substantive due process challenge to the bar exam requirement?

Rational basis review.