Substantive Due Process & Rights Incorporation

Overview

  • The session focuses on a comprehensive examination of Substantive Due Process and Rights Incorporation, which are foundational concepts in American constitutional law. These principles are elucidated through major Supreme Court cases and constitutional amendments, primarily the Fifth and Fourteenth Amendments, shaping the scope and application of individual rights against both federal and state governments.

Review Session Plans

  • Date of Session: The review session is scheduled for October 20, 2025. This specific date allows for timely preparation and discussion of advanced constitutional topics.

  • Format: The structure of the class schedule and assigned readings for the latter half of the semester will be dynamically revised. This revision will be informed directly by constructive feedback received from students regarding the first half of the semester, ensuring the curriculum remains adaptable and effective.

  • Required Attendance: The Professor has emphasized, and even labeled, attendance as genuinely mandatory. This stems from a firm belief that students will recognize and internalize the inherent value and critical insights offered during these discussions, which are integral to understanding complex legal doctrines.

  • Use of Recent Case: A contemporary legal case involving the prominent law firm Jenner and Block is integrated into the review. This case specifically highlights the societal and professional pressures on legal practitioners to provide essential pro bono or free legal services, offering a practical lens through which to view legal ethics and public service within the broader legal framework.

Discussion Points

  • Due Process Clause: A central point of discussion revolves around the Due Process Clauses found in two pivotal amendments: the Fifth Amendment and the Fourteenth Amendment. While both clauses serve to safeguard individual liberties, they differ significantly in their jurisdictional application, determining the scope of protection against federal versus state governmental actions.

  • Incorporation of Rights: This refers to the jurisprudential process by which rights enumerated in the Bill of Rights (initially only applicable to the federal government) are made applicable to the individual states through the Due Process Clause of the Fourteenth Amendment. This has been a gradual and selective process, fundamentally altering the relationship between state governments and their citizens' constitutional rights.

    • Fundamental Rights Test: While not the sole focus, the understanding of what constitutes a "fundamental right" is critical. This test involves assessing whether a right is "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition," which directly impacts discussions surrounding the incorporation of individual rights.

Fifth and Fourteenth Amendments

  • Differences Between Amendments: Understanding the distinction between these two amendments is crucial:

    • Fifth Amendment: This amendment's Due Process Clause imposes limitations exclusively on the federal government. It ensures that no person shall be "deprived of life, liberty, or property, without due process of law" by federal action.

    • Fourteenth Amendment: Ratified post-Civil War, this amendment explicitly applies to state governments. Its Due Process Clause dramatically expanded federal oversight by stating: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This clause became the primary vehicle for applying most of the Bill of Rights to the states.

Procedural vs. Substantive Due Process

  • Procedural Due Process: This aspect of due process concerns the fairness of the procedures that must be followed when the government seeks to deprive an individual of life, liberty, or property. It ensures that individuals are afforded proper notice, an opportunity to be heard, and a fair hearing before such deprivations occur. Examples include requiring a hearing before termination of welfare benefits or before imposing disciplinary action in public employment.

  • Substantive Due Process: In contrast, Substantive Due Process questions whether the government has a sufficient and legitimate reason for depriving individuals of certain fundamental rights, regardless of the fairness of the procedures used. It protects unenumerated fundamental rights deemed essential to liberty, such as privacy, marriage, and procreation, even if laws infringing these rights are applied with fair procedures.

Key Cases and Concepts

  • Palko v. Connecticut (302 U.S. 319 (1937)):

    • The case involved Frank Palko, who was charged with first-degree murder, convicted of second-degree murder, and sentenced to life imprisonment. Connecticut appealed and secured a new trial, where Palko was found guilty of first-degree murder and sentenced to death. Palko argued that this second trial violated his Fifth Amendment protection against double jeopardy, which he contended should be incorporated against the states via the Fourteenth Amendment's Due Process Clause.

    • The Supreme Court, in an opinion by Justice Cardozo, rejected Palko's argument for incorporation of the double jeopardy clause. It established a test for determining if a right should apply against the states, asking whether the right was "of the very essence of a scheme of ordered liberty" and whether it was "so rooted in the traditions and conscience of our people as to be ranked as fundamental."

    • The Court's reasoning derived a framework indicating that not all rights in the Bill of Rights are automatically incorporated. It distinguished between rights that are merely "formalities" and those truly "fundamental to fair trial" or "essential to a scheme of ordered liberty." Double jeopardy, at that time, was not deemed fundamental enough for incorporation, although this precedent was later overturned in Benton v. Maryland (1969).

  • Importance of Rights: The ruling in Palko underscored that rights specified in the Bill of Rights must be examined independently and on a case-by-case basis. The Court evaluates each right to assess its particular importance to the concept of "ordered liberty" and its historical context, rather than providing blanket incorporation of the entire Bill of Rights.

Justice Black and Incorporation

  • Justice Black's View: Justice Hugo Black was a staunch advocate for total incorporation. He argued that the Fourteenth Amendment's Privileges or Immunities Clause, or alternatively its Due Process Clause, was intended to incorporate all of the rights enumerated in the Bill of Rights, making them fully applicable to the states. He famously feared that "selective incorporation," where judges picked and chose which rights to incorporate based on their own subjective interpretation of "fundamental justice," would lead to undesirable "judicial overreach" and an erosion of clear constitutional standards. He believed total incorporation would ensure uniform protection for all citizens across all states and limit judicial discretion.

Evolution of Rights Interpretation

  • Over time, judicial philosophy has evolved, leading to significant shifts in how rights are interpreted and applied. Cases like McDonald v. City of Chicago (561 U.S. 742 (2010)) illustrate this evolution, where the Supreme Court ruled that the Second Amendment right to keep and bear arms for self-defense is fundamental and thus incorporated against the states through the Fourteenth Amendment's Due Process Clause. This demonstrates how shifts in judicial membership and jurisprudential thought can redefine what is considered essential to a scheme of ordered liberty and what rights are deemed fundamental to be protected against state infringement.

Unenumerated Rights Discussion

  • The landmark decision of Dobbs v. Jackson Women's Health Organization (597 U.S. ___ (2022)) centered on the contentious issue of abortion rights. This case explicitly distinguished between rights that are enumerated (explicitly stated in the Constitution) and those that are unenumerated (implied or inferred from constitutional text or history). The Dobbs majority held that the Constitution does not confer a right to abortion, overturning Roe v. Wade and Planned Parenthood v. Casey. This ruling reignited intense debate about the legal basis for unenumerated fundamental rights, particularly those related to personal autonomy and privacy, and how they should be identified and protected, often relying heavily on historical analysis.

  • Rights as Protection against Majority Rule: A fundamental principle underpinning constitutional rights is their role as shields against the potential tyranny of the majority. These rights ensure that even if a majority wishes to impose its will, certain individual liberties, especially those of minority groups, remain protected and beyond the reach of popular sentiment or transient legislative majorities. This concept is crucial for maintaining a just and equitable society where minority voices and rights are safeguarded.

Transition to Unenumerated Rights Concerns

  • The exploration of unenumerated fundamental rights presents a complex constitutional challenge. It highlights the difficulty and ongoing debate surrounding how the judiciary can legitimately identify and protect additional rights not explicitly stated in the text of the Constitution, without merely imposing judges' personal preferences. This area involves careful consideration of historical practice, evolving societal values, and the principles underlying the constitutional framework.

Four-Step Framework for Evaluating Rights Violations

When a constitutional right violation is asserted, courts typically apply a structured four-step framework:

  1. Violation Inquiry: The initial step involves determining if there is a credible assertion that a specific constitutional right has indeed been violated by a governmental action or law. This requires identifying the specific right at stake and the nature of the alleged infringement.

  2. Fundamental Protection Analysis: The second, and often most critical, step is to determine whether the asserted right is protected under the Fifth Amendment (against federal action) or the Fourteenth Amendment (against state action). This determination is crucial because it sets the appropriate standard of review for subsequent judicial scrutiny. If the right is deemed "fundamental," courts apply strict scrutiny. If it is not fundamental, the less rigorous rational basis review is applied.

    • This step establishes the level of deference the court will give to the government's action. Fundamental rights typically include those explicitly stated in the Bill of Rights (when incorporated) and certain unenumerated rights like privacy, marriage, and family decisions.

  3. Justification Examination: Assuming a right (fundamental or non-fundamental) is implicated, the next step is to examine whether the government has presented a sufficient justification for the law or action taken. The demanded level of justification varies dramatically with the standard of review: a "compelling interest" for fundamental rights under strict scrutiny, versus a "legitimate interest" for non-fundamental rights under rational basis review.

  4. Means-End Relationship Analysis: The final step involves evaluating if the means employed by the government align sufficiently with the ends sought by the legislation or governmental action. Under strict scrutiny, the means must be "narrowly tailored" to achieve the compelling interest and be the "least restrictive means" available. Under rational basis review, the means only need to be "rationally related" to a legitimate government interest, giving considerable deference to legislative choices.

Standards of Review

  • Strict Scrutiny: This is the highest and most demanding level of judicial review.

    • It is triggered when a governmental action infringes upon a fundamental constitutional right (e.g., freedom of speech, religion, interstate travel, privacy, the right to marry, or most incorporated Bill of Rights freedoms) or involves a suspect classification (e.g., race, national origin).

    • For a law to withstand strict scrutiny, the government bears the heavy burden of demonstrating two things:

    • That it has a compelling governmental interest justifying the infringement (e.g., national security, public safety, protecting the integrity of the electoral process).

    • That the means chosen to achieve that interest are narrowly tailored and constitute the least restrictive means available to achieve that compelling purpose. This means the law must not be overbroad, affecting more people or activities than necessary, nor underinclusive, failing to effectively achieve its goal.

  • Rational Basis Review: This is the lowest and most deferential level of judicial review.

    • It is applied when a law does not involve a fundamental right or a suspect classification. It is the default standard for most economic regulations and social welfare legislation.

    • Under this standard, courts show considerable deference to legislative judgment. For a law to survive rational basis review, the challenger must prove that the law:

    • Lacks a legitimate governmental interest (e.g., public health, safety, welfare, economic prosperity).

    • Is not rationally related to that legitimate interest. The government's asserted reason does not even have to be the actual reason for the law, as long as a conceivable rational basis exists. The law need not be perfect or the best means, only rational.

Judicial Activism in Context

  • Lochner Era: This refers to a controversial period in American constitutional law, roughly from the turn of the 20^{th} century until the late 1930s, named after the Supreme Court case Lochner v. New York (198 U.S. 45 (1905)). During this era, the Supreme Court aggressively used Substantive Due Process to strike down a wide array of state and federal economic regulations (e.g., minimum wage laws, child labor laws, maximum working hour statutes). The Court then created a "freedom of contract" as an unenumerated fundamental right under the Fourteenth Amendment, viewing economic regulations as infringements on this liberty. This period is often cited as a prime example of judicial activism, where critics argue the Court substituted its economic philosophy for that of the legislature. This era ended with the "switch in time that saved nine" during the New Deal, as the Court began to defer to legislative economic policies.

  • Impact of Judicial Composition: Changes in the composition of the Supreme Court, through retirements and new appointments by different presidents, profoundly influence judicial opinions and legal approaches. The philosophical leanings of new justices (e.g., originalist, textualist, living constitutionalist) can lead to significant shifts in how the Constitution is interpreted, what rights are protected, and the standards of review applied in future rulings. This dynamic interplay showcases how the political process can directly shape constitutional law.

Meyer v. Nebraska Analysis

  • The case of Meyer v. Nebraska (262 U.S. 390 (1923)) is a seminal Substantive Due Process case. It involved a Nebraska state law enacted during World War I that prohibited the teaching of any modern foreign language to students who had not yet successfully completed the eighth grade. The law was challenged by a teacher, Robert Meyer, who was convicted for teaching German.

    • The Supreme Court struck down the Nebraska law, finding it violated the Due Process Clause of the Fourteenth Amendment. The Court held that the "liberty" protected by the Fourteenth Amendment extended beyond freedom from bodily restraint to include a broad range of personal choices, including "the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."

    • Specifically, the Court evaluated the rights of teachers to practice their profession alongside the rights of parents to direct the education and upbringing of their children. The state's stated interest in promoting assimilation and discouraging foreign influences was deemed insufficient to justify such an infringement on the liberty interests of both teachers and parents under the Fourteenth Amendment, thus affirming a broader protection for unenumerated liberties.

Conclusion

  • This session will serve to bridge theoretical discussions on substantive due process and rights incorporation with practical considerations of political processes and historical context. By understanding the evolution of these legal doctrines, students will gain a deeper appreciation for how rights are applied, interpreted, and contested in the American constitutional landscape, forming the bedrock of individual liberties and governmental limitations.