Constitutional Law II:
Professor Bhagwat
I. Historical Background: Substantive Due Process
A. Incorporation: most rights in the BOR are incorporated into the 14th Am’s DP Clause, thus making them applicable to states in the same form as they apply to the federal government.
B. Substantive due process cases involve unenumerated rights guaranteed by the Constitution
1. fundamental rights: strict scrutiny. If a claimed interest is fundamental, strict scrutiny applies. To satisfy strict scrutiny, the gov’t must prove that:
i. the infringement is narrowly tailored to achieve a
ii. compelling state interest
what is fundamental? A claimed interest is fundamental if it is “implicit in the concept of ordered liberty,” or is deeply rooted in this Nation’s history and tradition.”
changing fashions in fundamental rights: from 19th century until 1930s, econ rights—liberty to contract—were regarded as fundamental rights protected by SDP. FDR’s new justices rejected that view and ever since, econ rights have not been regarded as fundamental. Today, econ regulations are only subject to rational basis review.
2. non-fundamental rights: are subject to rational basis test. Infringement is valid is rationally related to a legitimate state interest.
C. Lochner Era / Meyer-Pierce Analysis
1. Meyer v Nebraska: S.Ct. invalidated a state law barring the teaching of any modern language other than English in any public or private grammar school. Court says that the liberty guaranteed by the dpc of the 14th Am includes freedom to establish home and bring up children.
2. Pierce v Society of Sisters: S.Ct. invalidated a state statute requiring students to attend public rather than private schools. Court held that the statute unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control.
3. Significance of Meyer-Pierce: read in the 14th Am’s “liberty” guaranteed under by the due process clause rights not enumerated in the Const.
II. Modern Substantive Due Process: Privacy, Personhood, and Family
A. Generally: If a right is found to be fundamental, then strict scrutiny applies.
1. Strict scrutiny involves:
a. The state’s interest must be compelling and
b. The statute must be narrowly tailored to meet that interest.
2. Not a fundamental right: Law must only survive rational basis review.
3. List of rights recognized under substantive due process:
a. Right to birth control (Griswold, Eisenstadt)
b. Abortion (although probably is not strict scrutiny, but is an intermediate “undue burden” standard)
c. Family rights to live together
d. Marriage and divorce
e. Some parental rights
d. Right to refuse unwanted medical procedures
e. Right to physician-assisted suicide?
B. Right to Privacy in the Context of Birth Control:
1. General right to Birth Control: there is a fundamental right to use contraceptives, regardless of whether person is married or single. The state cannot impair that interest without satisfying strict scrutiny.
2. Examples:
a. Griswol
st. of certain rights shall not be construed to deny or disparage others retained by the people.” Goldberg: 9th Am’s guarantee of rights not specifically enumerated supports the result.
i. In determining w/c right is fundamental, judges must look at the traditions and collective conscience of our people.”
ii. critique: legislators are the best decision makers on matters re traditions and collective conscience
iii. counter-argument: legislators are subject to partisan politics and base decisions on will of constituents, not necessarily the collective conscience of the people.
c. 14th Amendment: Harlan and White suggest that 14th Am’s Due Process Clause should be the provision where the right to privacy is located.
d. Dissent: Justice Black. Government has right to invade privacy unless the Constitution says otherwise. There is no constitutional right to privacy nor a constitutional provision forbidding any law to be passed w/c abridge privacy.
i. Counter-argument: 9th Am protects unenumerated rights.
~ counter-argument: 9th Am was meant to limit power of the fed gov. 9th Am was not meant to limit the power of states. Also, 9th Am has not been incorporated to apply to states.
