Constitutional Law - Due Process

14th Amendment - Due Process

14th Amendment, Section 1

  • Citizenship: All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and of the state wherein they reside. This clause defines who is considered a citizen of the U.S., including birthright citizens (those born in the U.S.) and naturalized citizens (those who have gone through the process of becoming a citizen).

  • Privileges and Immunities Clause: No state shall make or enforce any law that abridges the privileges or immunities of citizens of the United States. This clause was originally intended to protect the rights of newly freed slaves, but its interpretation has been narrow. It prevents states from interfering with the fundamental rights of U.S. citizens.

  • Due Process Clause: No state shall deprive any person of life, liberty, or property without due process of law. This clause requires states to provide fair legal procedures when depriving individuals of their rights or property. It has both procedural and substantive components.

  • Equal Protection Clause: Nor deny to any person within its jurisdiction the equal protection of the laws. This clause prohibits states from discriminating against individuals or groups. It requires states to apply laws fairly and equally to everyone within their jurisdiction.

  • Section 5: Grants Congress the power to enforce the provisions of the 14th Amendment through appropriate legislation. This section empowers Congress to pass laws to ensure that states comply with the 14th Amendment.

Privileges and Immunities

  • Historical Meaning: Discussed in the Slaughterhouse Cases. The Supreme Court narrowly interpreted this clause in the Slaughterhouse Cases (1873), holding that it primarily protects rights of national citizenship, not state citizenship.

  • Modern Meaning: Primarily related to the right to travel. This right is considered a fundamental aspect of interstate movement.

    • Applies to both public and private actions related to interstate movement. The right to travel is protected against both governmental and private interference.

    • Welcome visitor concept.

  • Article IV, Section 2: Addresses non-discrimination. This section ensures that citizens of each state are entitled to all privileges and immunities of citizens in the several states.

  • Equal Treatment: Ensures employment, medical services, access to courts, and property rights for permanent residents. States must provide these essential services and rights without discrimination to permanent residents.

Incorporation

  • 5th Amendment and Bill of Rights: Originally applied to the federal government. The Bill of Rights initially limited the powers of the federal government.

  • Bill of Rights Examples:

    • Free Speech (1st Amendment)

    • Bear Arms (2nd Amendment)

    • Search and Seizure (4th Amendment)

    • Double Jeopardy (5th Amendment)

    • Cruel and Unusual Punishment (8th Amendment)

  • 5th Amendment Due Process Clause: "No person shall be deprived of life, liberty, or property, without due process…" This clause is a parallel protection at the federal level.

  • 14th Amendment: Extends similar protections to the state governments.

    • Due Process Clause: "No state shall deprive any person of life, liberty, or property, without due process of law." This extends due process rights to actions by state governments.

    • Equal Protection Clause: "Nor deny to any person within its jurisdiction equal protection of the laws." This ensures equal treatment under state laws.

Substantive Due Process

  • Define Regulated Conduct: Identify the specific government action being challenged. Clearly articulate the action by the government that is being disputed.

  • Define Asserted Right: Clarify the right claimed to challenge the regulated activity. Determine the specific right that the individual or entity claims is being violated.

  • Is the Right Fundamental?

    • Determined by whether the right is "deeply rooted in American history and tradition." Rights considered fundamental are those that have long been recognized as essential to individual liberty.

  • Not a Fundamental Right:

    • Rational Basis (RB) Test is applied. This test requires that the government action is rationally related to a legitimate government interest.

    • Examples:

    • Economic rights (West Coast Hotel). The Supreme Court gives significant deference to government regulation of economic matters.

    • Physician-assisted suicide (Glucksberg). The Court has held that there is no fundamental right to assisted suicide.

    • Anything not considered fundamental. Any right not explicitly recognized as fundamental falls under this category.

  • Fundamental Right:

    • Strict Scrutiny Test is applied. This test requires that the government action is narrowly tailored to serve a compelling government interest.

    • Examples:

    • Contraception (Griswold). The right to privacy includes the right to use contraception.

    • Family (Moore). The right to live with extended family is protected.

    • Marriage (Obergefell). The right to same-sex marriage is a fundamental right.

    • Refusing medical treatment (Cruzan). Individuals have the right to refuse medical treatment.

    • Abortion rights (Refer to specific abortion jurisprudence).

The Court's Abortion Jurisprudence

  • Key Cases:

    • Roe v. Wade (1973)

    • Dobbs v. Jackson Women's Health Organization (2022)

  • Roe v. Wade:

    • First Trimester: No restrictions on abortion. The state could not prohibit abortions during the first trimester.

    • Viability: States can regulate but must allow exceptions for maternal health. After viability, states could regulate abortions, but must allow exceptions to protect the mother's health.

  • Dobbs v. Jackson Women's Health Org.:

    • Overturned Roe v. Wade. The Supreme Court eliminated the constitutional right to abortion.

    • Allows states to impose any restrictions on abortion, including bans, throughout the entire pregnancy.

      • Exception may be health/life

  • Post-Dobbs:

    • Any restrictions are permissible. States have broad authority to regulate or prohibit abortion.

    • Rational Basis Test is applied. Regulations are reviewed under the rational basis test.

    • Fetal life is considered throughout the pregnancy. States can consider the interests of fetal life throughout the pregnancy.

  • Viability Considerations:

    • Rational Basis Test. Regulations related to viability are reviewed under the rational basis test.

    • Maternal Health Exception.

Fundamental Rights - Examples

  • Yes (Fundamental):

    • Contraception (Griswold)

    • Live with extended family (Moore)

    • Refuse medical treatment (Cruzan)

  • No (Not Fundamental):

    • Contract / economic rights (Lochner)

    • Abortion (Dobbs)

    • Physician-assisted suicide (Glucksberg)

Tests for Substantive Due Process

Rational Basis Test (Not Fundamental Right)

  • Conditions:

    • Legitimate government interest.

    • The means (regulated activity) are rationally related to that interest. The government action must be a reasonable way to achieve the government's goal.

Strict Scrutiny Test (Fundamental Right)

  • Conditions:

    • Compelling government interest.

    • The means (regulated activity) are narrowly tailored to that interest. The government