lesson 23

due process

5th amendment

no person shall be deprived of life, liberty, or property w/out due process

due process

14th amendment

nor shall any state deprive any person of life, liberty, or property w/out due process of law

what classifications of rights does the SC protect under through the Due process Clause of the 14th amendment

1. procedural due process
2. “the individual rights listed in the Bill of Rights” incorporated against the states
3. substantive due process

procedural due process

the government must follow certain procedures bf it may any person of

* life, liberty, property

procedural due process

elements of a claim

who does the depriving

what interests are protected

what process is required

“incorporation“ of the Bill of Rights

Barron v Baltimore (1833): originally understood as bill of rights only applied to the federal gov → states had to rely on their state constitutions and laws

Slaughter House Cases (1873): foreclosed the Privileges and Immunities clause to extend to the Bill of Rights

Due Process Clause: allows the incorporation of some not all individual protections

substantive due process

government may never deprive pp of fundamental substantive liberties regardless of process

these liberties are unenumerated by arise from (they are so important they can not be infringed w/out compelling reason no matter the amount of process)

* life, **liberty**, property

9th amendment

the enumeration in the Constitution of certain rights, shall not be constructed to deny or disparage others retained by the people

origins of substantive due process

dred scott v. sandford (1857)

* strikes down the Missouri compromise bc the act of congress deprives a citizen of his liberty and property bc he brought his slave into a particular territory lacks due process of law

Lochner v New York (1905)

facts

NY law set a maximum hr for bakers for more than 60 hrs a week

* Lochner violated the law and was fined, he challenged on due process grounds

Lochner v New York (1905)

issue

the SC weighed the state’s police power to regulate heath and safety against the baker’s liberty interest in freedom to contract

Lochner v New York (1905)

holding 5/4

Peckman opinion

* the general right to make a contract in relation to his business is part of the liberty protected by 14th amendment
* “meddlesome interference w/ rights of the individual“

Lochner v New York (1905)

Holmes Dissent

the court decides the case on an economic theory which the large part of the country does not entertain

* the court lacks judicial restrain, states may regulate life whether one likes it or not
* the 14ths does not enact herbert spencer social statics

herbert spencer social statics

what does it advocate for

social darwinism, the survival of the fittest

pre-new deal court vibe

struck down many progressive laws bc they violated the worker’s substantive liberty interest in freedom of contract then reversal

* Morehead v NY: struck down minimum wage for women
* West Coast Hotel v Parrish: reversal allowed Washington minimum wage law for women

Justice Owen Roberts

switch to save nine repudiated “freedom of contract“

* switches sides from horseman (conservative) to musketeers (liberal)

Pierce v Society of Sisters (1925)

established

right to parents to educate children

Pierce v Society of Sisters (1925)

what law was challenged

Oregon law that required children to attend public school until 16

* caused Sisters to have decline in enrollment rates

Pierce v Society of Sisters (1925)

why did McReynolds strike down the law

9/9

the law deprived the school owners of their property w/out due process

interfered w/ the liberty of parents to chose schools for their children

legal test of identifying protected rights

“implicit in the concept of ordered liberty“

“fundamental rights and liberties which are deeply rooted in this Nation’s history and tradition“

bowers v. hardwick (1986)

road to same-sex marriage

upheld Georgia’s anti-sodomy law

* 14th does not protect the right engage in homosexual activity

(5/4)

Lawerence v Texas (2003)

road to same-sex marriage

overruled Bowers

* criminal prohibitions on homosexual activity violated Substantive due process

6/3

Lawerence v Texas (2003)

kennedy v scalia

kennedy: there is a realm of personal liberty which the gov may not enter

scalia: texas police power has an interest in stopping what they see as “immoral and unacceptable“

obergefell v hodges (2015)

facts

various state laws defined marriage as union between one man and one women on both equal protection/ due process grounds

what reason did Obergefell give for removing the issue of same-sex marriage from the democratic process

no individual has to rely solely on the democratic process to exercise a fundamental right

obergefell v hodges (2015)

holding - Justice Kennedy

the constitution prohibits gov from infringing same-sex couple’s fundamental liberty to marry

what 2 clauses of the 14 did Obergefell hold were violated by same-sex marriage bans

due process clause and equal protection cause under the 14th

what case for the 1960s did the SC use to affirm the 14th extends to intimate choices that define personal identity and beliefs

Griswold v Connecticut

the court affirmed the fundamental right found in the due process clause of the 14th to

* extend to certain personal choices central to individual dignity and autonomy including intimate choices that define a personal identity and beliefs

obergefell v hodges (2015)

dissent Chief Roberts

due process: no prior decision had changed the definition of marriage, same-sex marriage bans did not violate due process clause

* rejected that the bans infringed on right to privacy bc they did not involve any punishment or intrusion

equal protection clause: bans were rationally related to the gov interest in preserving the traditional def of marriage

obergefell v hodges (2015)

dissent Justice Alito

he believes that due process clause only protects interests that are deeply rooted in this nation’s history and tradition

obergefell v hodges (2015)

dissent Thomas

why does her reject entire concept of substantive due process

it allows judges to roam at large in the constitutional field guided by their personal views as to the fundamental rights protected by the constitution