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Constitutional Law Review

Substantive Due Process

Substantive Due Process Some liberties (i.e., rights rather than privileges) not mentioned in the Constitution but 1 identified by the court are considered so fundamental to the idea of liberty that their invasion by government is presumed to be void and can be sustained only if the government justifies the invasion under heightened scrutiny. The current era of Substantive Due Process is one in which some government regulations of intimate relationships or decisions have been invalidated. The core of substantive due process is the idea that some laws unreasonably (or substantially) interfere with a persons enjoyment of life, liberty, or property in such a fashion that the law cannot be considered valid law. More simply, sometimes the government goes too far!

! Tvctuboujwf!Evf!Qspdftt Bobmztjt;! 1. Determination as to whether the right is fundamental 2.

Fundamental rights are either (1) deeply rooted in history and tradition, or (2) deeply connected with another recognized fundamental right (i.e., you cannot have a fair trial without having a fair opportunity to be heard penumbra theory).

Determine whether (and to what extent) the right was infringed upon
Is the government action a mere inconvenience that poses no direct legal obstacle to a persons ability to enjoy the liberty interest at issue, or does the government action substantially interfere with a persons ability to enjoy their liberty interest? Once you answer question 2, you have found your answer to question 3.


Determine what level of scrutiny should apply

Analyze the government action under either: (1) rational basis review, (2) intermediate scrutiny, (3) strict scrutiny, or (4) something in-between the three clearly defined categories. See Chart below and the Equal Protection Review Sheet.

4. !

Determine whether (i) the plaintiff can prove that the law/regulation is arbitrary or unreasonable, or (ii) whether the government can carry the burden of proving that the government action that infringes upon the claimants rights is sufficiently related to that constitutionally-sufficient purpose. See back for the specific language.

Jobst Test First ask whether

the regulation is a direct or indirect infringement on the claimed right, then consider whether it is an insubstantial or substantial interference on the asserted right?

Is there a fundamental right at issue?

Indirect and/or insubstantial interference with a fundamental
right. No direct bar.
Example: the consequences of marriage on a persons eligibility for social security benefits)

Substantial (i.e., significant) and direct interference legal obstacle to the enjoyment of a fundamental right.
Example: banning interracial marriages.

Rational Basis Review

Unless you attack the government action under some other constitutional provision or legal theory.

Rational Basis Review

Intermediate or strict scrutiny

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

buy and use contraceptives (note: you also have a right to procreate or to simply practice how to procreate!) travel (from state to state) abortion (without substantial interference during the first trimester) marry (with qualifications) (note: think freedom of association) live w/ members of ones extended family (note: no fundamental right to live w/ unrelated persons) view Obscene stuff in your home (note: think privacy and freedom from unreasonable search & seizure) when indigent, obtain a divorce w/out the necessity of a filing fee engage in sodomy (particular sexual conduct, so long as it is between two (or more) consenting adults custody of your child & a right to control (or make decisions for) your minor child etc . . .

Although the U.S. Supreme Court has identified certain liberties as fundamental rights, State Constitutions may provide additional protections. Therefore, what may not be a fundamental right under the federal constitution may be a fundamental right under a particular state constitution. Always check the law of your jurisdiction.

Constitutional Law Review

No state shall [. . .] deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const., Amend. XIV.

1. Is there a GROUP BASED classification/distinction in the statute or ordinance? 2. What is the CLASSIFICATION?
How is the government drawing a distiction amongst people

3. What is the appropriate LEVEL OF SCRUTINY?

The applicable standard of review depends on the type of discrimination


Does the Government Action Meet the Level of Scrutiny?

Is the government action justified by a sufficient purpose

Under the rational basis standard, a law will be upheld if it is rationally related to a legitimate interest. o Great deference given to the government o o Burden on the to prove no rational/legitimate purpose o o Almost any conceivable legitimate purpose will suffice o Most governmental action examined under this standard is upheld unless it is; 1. Arbitrary, 2. Irrational/Unreasonable, or 3. Animus: Designed to harm a politically unpopular group
There may be a more stringent test in some situations known as the rational test with bite where the government bears the burden of proof. (ex., mental disability; sexual orientation)

Under the intermediate scrutiny standard, a law will be upheld if it is substantially related to achieving an important government objective. o The government carries the burden of showing an exceedingly pursuasive justification for the classification o o Unconstitutional: gender classfication(s) based on role stereotypes o o Constitutional: classifications designed to remedy (i) past discrimination, and (ii) differences in opportunity
(i.e., societal discrimination)

o Legitimacy: illegitimacy does not carry an obvious badge o

Under Strict Scrutiny, a law will be upheld if it is necessary to achieving a compelling government interest. o Remedial Purpose o Judicial Remedy:Injunctive Relief o Diversity in Education o Affirmative Action o To survive Strict Scrutiny, government action must be; 1. Necessary no less restrictive alternative(s) exist 2. Justification may require a documented pattern of wide spread discrimination 3. Narrowly tailored (i) neither overinclusive or underinclusive, (ii) (3rd Party) undue burden analysis, (iii) congruent & proportional to address the identified evil or harm. What makes a classification, inherently suspect ? 1. History: severe & pervasive discrimination, 2. insular & discrete minority, 3. immutable traits, and 4. inability to represent themselves or secure rights. Strict Scrutiny 1. Race (Loving v. Virginia) 2. National Origin 3. Alienage 4. Fundamental Right(s) 5. Marriage is not a full on fundamental right conduct the Jobst Analysis Intermediate Scrutiny! Rational Basis Review 1. Age 2. Sexual Orientation 3. Disability 4. Wealth/The Poor (Zablocki) 5. etc.,
rational basis w/a bite

1. Gender 2. Legitimacy