2/19 Study Notes on Due Process and Unenumerated Rights

Revisit class materials during the last week of the semester for final exam prep.
Focus on the two columns of questions within the fact pattern.
- First Column: Scope of constitutional coverage.
- Second Column: Was there a violation of the constitution?
Always consider both questions when analyzing scope issues.

Part Three: Divided between:
- Substantive Due Process: Evaluates if the government has valid reasons to restrict life, liberty, or property.
- Procedural Due Process: Assesses if appropriate procedures were followed when limitations were placed on life, liberty, or property.
Focus for this session is on Substantive Due Process for about 2.5 to 3 weeks.

Substantive Due Process:
- Concentrates on whether the government's reasons for restricting rights are adequate.
- Issues of unenumerated non-fundamental rights, particularly economic rights, were addressed last week.
Procedural Due Process will be discussed in upcoming weeks.

Unenumerated rights are those not explicitly listed in the Constitution and do not receive heightened scrutiny.
- Examples of unenumerated rights:
- Abortion rights have changed in status post-Dobbs decision.
The challenge lies in determining if these rights merit protection under substantive due process.

Enumerated Rights: Rights explicitly stated in the Constitution (e.g., freedom of speech, religion, right to bear arms).
- Entitled to high protection under scrutiny standards.
Unenumerated Rights: Any rights not explicitly in the Constitution (e.g., right to marriage, privacy, contraception, abortion).
- Requires focus on understanding which rights fall into this category.
- Not necessary to memorize every unenumerated right; instead, concentrate on enumerated rights.

Recognition of a fundamental right (enumerated or unenumerated) has significant ramifications:
1. Limits governmental ability to regulate this right.
2. Subjects actions to strict scrutiny review.
3. Removes the right from political processes, making it unconstitutional for the government to infringe upon it directly.
- Example: Equal Protection Clause preventing states from enforcing racist laws.
- If a right is determined to be fundamental, the majority's opinion cannot change its status via political voting.
Acknowledgment of a fundamental right can lead to substantial societal change (e.g., Roe, Obergefell decisions).
The implications on federalism: Acknowledging fundamental rights can unite standards across states rather than allowing laboratories of experimentation, limiting state autonomy.

Arguments for protection of unenumerated rights:
- Unenumerated rights might not have explicit constitutional protections, potentially subject to rational basis review.
- Dominant view: Due Process Clause (Fifth and Fourteenth Amendments) protects fundamental rights.
Another assertion: Unenumerated rights might be safeguarded through the Ninth Amendment. This view, however, has seen limited full acceptance.

Nature of the Right: Identify if it's a fundamental or non-fundamental right.
- Is the right rooted historically in U.S. traditions?
Substantial Infringement: Was there a significant infringement of that right?
Level of Scrutiny:
- Fundamental rights: subject to strict scrutiny.
- Non-fundamental rights: subject to rational basis review.

Framing of the right matters significantly in evaluating its status.
- Must consider how broadly or narrowly a right is considered, fundamentally affecting historical context and traditions attached to it.
Examples of rights to consider:
- Right to marry, custodial rights, privacy rights, etc.

Concentrated discussion on:
- Privacy, procreation, and family autonomy rights.
- Notably the absence of explicit constitutional acknowledgment of rights concerning families, reproduction, or raising children.
Upcoming topics include the right to marry, custody rights, and establishment of family units.

Case about Virginia law prohibiting interracial marriage.
Key Points:
- Anti-miscegenation law aimed to maintain racial purity.
- Violated the Fourteenth Amendment's Due Process Clause by preventing individuals from marrying based on race.
- Court concluded that marriage is a fundamental right essential to the pursuit of happiness.

Defense of Marriage Act (DOMA) limited federal recognition of same-sex marriages.
Justice Kennedy criticized DOMA based on:
- Federal overreach intruding on state marriage laws.
- The law displayed animus or prejudice against the LGBTQ community, failing to meet constitutional requirements.
Highlights implications of animus in discrimination cases.

Examines whether same-sex marriage is a fundamental right.
Justice Kennedy characterized marriage as historically evolving, vital for individuals' autonomy, and capable of supporting personal commitment.
Court maintained that restricting marriage recognition infringed on fundamental rights and thus could not stand.

Examined California evidence code on presumed parentage.
Emphasized the narrow framing of the right regarding paternity of children from extramarital relationships.
The lack of history and tradition for biological parents in these contexts prevented elevating rights to fundamental standing.

Families and personal relationships embody deep constitutional protections.
As the court interprets these rights, it continually shapes the narrative of constitutional law amidst societal norms and evolving traditions.
The ongoing dialogue reflects tensions between historical frameworks and modern interpretations of rights, especially within contexts of autonomy, privacy, and fundamental personhood.