Constitutional Law Foundations 10 - Substantive Due Process

Declaration of Independence

• The Declaration of Independence highlights the commitment to protecting the rights of the people from a power-hungry government.

Substantive Due Process

• Definition: Substantive due process ensures the government has an adequate reason for taking away a person's life, liberty, or property.

• Purpose: It promises laws will be reasonable and not arbitrary.

• Fifth Amendment: Applies due process requirements to the federal government.

• Fourteenth Amendment: Extends due process requirements to state and local governments, especially after the Civil War.

• Application: Usually a substantive due process matter if a law limits the liberty of all persons to engage in some activity.

Levels of Scrutiny

• Purpose: Used to determine the appropriateness of government actions that limit liberty.

• Types:

  • Rational Basis Review

  • Strict Scrutiny

Rational Basis Review

• Standard: A government action is upheld unless a challenger shows it's not rationally related to any legitimate purpose.

• Burden of Proof: The challenger bears a heavy burden.

• Outcome: Most laws survive this review.

Strict Scrutiny

• Standard: The government must show its action is necessary to achieve a compelling government purpose.

• Burden of Proof: The government has a hefty burden.

• Requirements: Even with a critical goal, the action fails if there's a less burdensome way to accomplish it.

• Outcome: It's rare for a law to pass this inquiry.

Application of Strict Scrutiny

• Condition: Applies when a fundamental liberty is at stake.

• Rationale: Ensures closer examination of laws that threaten cherished liberties.

Application of Rational Basis Review

• Condition: Applies when no fundamental right is at stake.

Economic Rights

• Level of Scrutiny: Laws affecting economic rights get rational basis review.

• Outcome: The government usually wins challenges based on substantive due process.

• Constitutional Protection: The constitution provides minimal protection for economic liberties.

***Fundamental Rights and Privacy

• Trigger: Fundamental rights trigger strict scrutiny.

Right to Privacy

• Source: The U.S. Supreme Court found the right to be implicitly included.

• Scope: It encompasses specific liberties.

Specific Fundamental Privacy Rights (triggering strict scrutiny):

• The Right to Marry: Strict scrutiny applies if a state tries to dictate whom you can or cannot marry.

  • Example: Laws prohibiting interracial marriage violate substantive due process protections.

  • Example: Laws preventing marriage to an eight-year-old is necessary for compelling reasons.

• The Right to Procreate (making babies).

• The Right to Purchase and Use Contraceptives.

• The Right to Custody of One's Children: It's difficult for the government to take away someone's kids.

• The Right to Keep the Family Together: including the right to live with extended family.

• Other Parental Rights: Mainly the right to control the upbringing of one's children.

  • Example: Deciding not to allow visits from an aunt or bringing a child to religious services weekly.

Rights Under Scrutiny

• The Right to Refuse Medical Treatment: SCOTUS has not stated what level of scrutiny applies.

• The Right to Engage in Consensual Sexual Activity: SCOTUS has said the government has no legitimate interest if the activity isn't commercial; so it needs to pass rational basis at the very least.

Abortion Rights

• SCOTUS Ruling: There is no fundamental right to an abortion.

• State Legislation: States legislate on the matter, and their legislation need only pass the rational basis test.

Other Fundamental Rights

• The Right to Vote: Strict scrutiny applies.

  • Example: A city refusing to let people vote unless they've paid local taxes is subject to strict scrutiny, and the law will probably fail.

• The Right to Interstate Travel: Traveling abroad is not a fundamental right.

• First Amendment Freedoms: Freedom of speech and religious freedoms.

Second Amendment - Right to Bear Arms

• ***Special Standard as a fundamental right: This right is fundamental but has its own special test.

• Test: If a regulation burdens the right to keep and bear arms, the government must show the regulation is “consistent with the country's historical tradition” of firearm regulation.

• SCOTUS Interpretations:

  • People have a right to have handguns in their home for protection.

  • The government can't require people to have a special safety need to carry a concealed weapon.

  • It's okay to restrict guns in sensitive places like courtrooms or churches.

  • Members of a county militia can muster with their muskets in a town square.

Miscellaneous

• The Right to Be a Lawyer: There's no fundamental right to be a lawyer, so having to take the bar exam is all good as far as substantive due process is concerned.