Introduction
Standards of Review
· Strict Scrutiny:
o Use when suspect class or fundamental right is involved
o Law will be upheld only if it is necessary to achieve a compelling government interest.
o Court will always consider if there are less burdensome ways for achieving the goals.
o Government will have the burden of proving the law is necessary. Law should not be over-inclusive or under-inclusive.
· Intermediate Scrutiny:
o Use when classification is based on gender or legitimacy is involved.
o Law will be upheld if it is substantially related to an important government interest.
o Most of the time government will have the burden of proof.
· Rational Basis (Minimal Scrutiny)
o Use whenever the other two standards are not applicable
o Law will be upheld if it is rationally related to a legitimate interest.
o Difficult to fail this test, so most of the time the law is upheld unless it is arbitrary or irrational.
o Laws are presumed valid, so the burden of proof falls on the challenger of the law. Really hard for challenger because this is most deferential to the legislature.
o Law doesn’t need to be the best way for achieving the governmental goal.
Substantive Due Process
No person shall be deprived of “life, liberty, or property without due process of law”
Constitutional Source
· Due Process Clause of the 5th Amendment (applies to the federal government)
· Due Process Clause of the 14th Amendment (applies to state and local government)
Substantive Due Process and Privacy
· Substantive Due Process is a constitutional safeguard limiting the power of the state, irrespective of how fair its procedures may be; substantive limits placed on power of the state.
· The SC has maintained and expanded a line of cases protecting certain rights to privacy under heightened judicial scrutiny.
· Griswald and Roe were not sudden revivals of substantive due process: in one sense they were built on an aspect of Lochner tradition that never wholly died.
Individual Liberty
14th Amendment
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Relationship Between
· Both guarantee fairness of law
· Both require court to review the substance of the law rather than the procedures employed
· Note that since both protect against unfairness, both may be appropriate challenges to the same governmental act, and a discussion of both may be appropriate.
· Substantive due process
o guarantees that laws will be reasonable and not arbitrary
o generally, where a law limits the liberty of all persons to engage in some activity, it is a due process question
· Equal protection
o guarantees that similarly situated persons will be treated alike
o where a law treats a person or class of persons differently form others, it is a equal protection question
Do you think there is such a thing as natural law?
· Positive law is the law of the sovereign
· Are there principles that are just/unjust notwithstanding positive law?
· Why not invest in the SC the powers to invest the natural law
· Mark Twain: laws of nature should be ignored
· Thomas: takes position for natural law
Lochner v. NY
1905
Facts: State of NY passed a law prohibiting bakery employees from working more than 10 hours a day or 60 hours a week (health and welfare law). Lochner was convicted and fined for permitting a baker to work in excess of the allowed hours. He challenged the law that having restriction on hours operated to violate the liberty and the employers to contract as they saw fit. The SC reviewed the case and analyzed the constitutionality of NY’s law.
Rule: A law that infringes on freedom in the market place and freedom of contract is unconstitutional if it does not bear a reasonable relation to a legitimate government purpose.
Holding: Undermining substantive due process, SC ruled that NY law was unconstitutional b/c interferes with freedom to contract. The general right to make a contract in relation to one’s business is part of the liberty of the individual protected by the 14th amendment. The right to purchase or sell labor is part of the liberty protected by this amendment. Status quo was to allow employer/ee to bargain as they saw fit, and not state’s place to interfere.
Right of Privacy
Griswold v. Connecticut
1965
Facts: Griswold the Executive Director of the Planned Parenthood League of Connecticut, and Dr. Buxton were convicted under Connecticut law which made counseling of married persons to take contraceptives a criminal offense.
Rule: The right to mental privacy, although not explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees. As such, it is protected against state regulation which sweeps unnecessarily broad.
Holding: The Connecticut law, by forbidding the use of contraceptives rather than regulating their manner or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Although the theory of substantive due process has declined as a means to review state economic regulation – at least since 1937 – the court, as here, has freely applied strict scrutiny of state laws affecting social areas.
Substantive Due Process in Abortion
Roe v. Wade
1973
Facts: TX abortion laws challenged here were typical of these adopted by most states. Single woman wished to have her pregnancy terminated by abortion.
Rule: The right to privacy found in the 14th Amendment’s concept of personal liberty and restrictions upon state action is broad enough to encompass a woman’s decision whether or no to terminate her pregnancy.
Holding: Constitution does not explicitly mention any right of privacy but SC has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. A statute regulating a fundamental right, such as a right to privacy, may be justified only by a compelling state interest and such statutes must be narrowly drawn. The unborn have never been recognized in the law as persons in the whole sense. TX, may not, by adopting one theory of life, override the rights of the pregnant woman that are t stake. However, neither are the woman’s rights to privacy absolute. The state does have a legitimate interest in preserving the health of the pregnant woman and in protecting the potentiality of life. Each of these interests grows in substantiality as the woman approaches term, and at a point each becomes compelling. Mother’s right to privacy is more compelling in the first trimester, after that, state may regulate the abortion procedure in ways related to maternal health.
Rust v. Sullivan
1991
Facts: Regulations permitted doctors to provide pregnant women with information about childbirth and prenatal care, but advised them to tell any pregnant woman who inquired about abortion that the project does not consider abortion an “appropriate method of family planning.” Doctors can’t even raise abortion as an alternative to a woman making decisions in this regard, government won’t pay.
Holding: Court extended the reasoning of Maher and McRae to a restriction on abortion counseling by any project receiving federal family planning funds. Majority rejected a substantive due process challenge under the 5th amendment, reiterating that the Due Process Clauses confer no affirmative right to governmental aid, even with respect to a liberty with which government may not otherwise confer.
· Government interest – discrimination against women? Moral judgment with the taint of intentional (can’t simply by a disparate impact) discrimination. (refer to Washington v. Davis). If there is a finding that government is making this choice intentionally and discriminating intentionally, that’s problematic. Right of reproduction choice was a liberty not equality though. Two distinct analysis that tend to be separate. But one could argue when you get to Casey, it talks a lot about equality. Post Casey, the equal protection argument is better argument.
o Now Post 1992 Casey, liberty and equality is more of a combination argument.
· Another argument-Empirical question as to whether indigent women are not worse off if the government wants to get out of this type of funding. Point à like in Lochner, the court said status quo is such that employers ought to be able to negotiate with employers but missed that the reality of the situation was a part of the governmental decisions which created strong capital, so in fact, Peckham was wrong. Capital and labor was not balanced, the market is itself a product of governmental decisions and therefore they sometimes must step in. Therefore the status quo is not fair. Same here. Government got involved with healthcare industry and fifty years later, the healthcare industry looks the way it does because of the government. Then to say that they were going to pull out of this area is “blind and stupid” to macroeconomics. The analysis should have taken into account the realities of economics, and the analysis is disingenuous (not the result, just the analysis).
Planned Parenthood of Southeastern Pa. v. Casey
1992
Facts: Penn Abortion Control Act required: (a) a doctor to provide a woman seeking an abortion with information designed to persuade her against abortion and imposed a waiting period of at least 24 hours between provision of the information and the abortion; (b) a minor to obtain consent of one parent or a judge’s order before having an abortion; (c) a married woman to sign a statement averring that her husband had been notified, her husband was not the father, her husband forcibly had impregnated her, or that she would be physical harmed if she notified her husband; and (d) a public report on every abortion, detailing information on the facility, physician, patient, and steps taken to comply with the Act.
Holding: Court upheld central holding of Roe, that state may not prohibit abortion pre-viability. Viability is still the dividing line. Viability is the point at which a fetus can be said to be an independent life, so that the state’s interest in protecting it when then outweighs the mother’s decision making interest. Court fractures into 5 different camps. Joint opinion abolishes trimester framework but keeps intact viability framework and also introduces undue burden test. The husband-notification requirement is unconstitutional, and the rest of the statute is valid.
· O’Connor’s understanding of undue burden was different prior to Casey. It was a 2 part test. If undue burden, answer yes, then court will do analysis. Here, it’s a single part. It asks if legislation creates a substantial obstacle to the exercise of the right.
· Integrity of court, stare decisis, and substantive due process require Roe to be affirmed – big question is how precedence should be treated in Con law cases. It gives legitimacy, stability (continuity, it’s settled law, people have come to rely on it). People have fashioned their lives around this knowledge in light of prevailing law and that should not be quickly overturned unless there is good reason. But if court was wrong, how can society change it, amend the constitution? But as a practical matter, it never really
ntal right, then the court will apply strict scrutiny. The court has to review this legislation to determine whether the means chosen are narrowly tailored to achieved a compelling government interest.
o If it’s not fundamental, then the court will apply rational basis review. Here, the government has to have a rational basis in the means to achieve a legitimate end. Rational basis with teeth: Lawrence and Cruzan.
Substantive Due Process and Rights Over Death (Death and Dying)
Does the due process clause confer a substantive right to die?
Even if there is such a right, does it extend to a right to a physician’s assistance in terminating life more quickly and with less suffering?
Cruzan v. Director, Missouri Department of Health
1990
Facts: Suit regarding a 17-year coma patient’s parent’s right to have the hospital pull the plug on the patient.
2 Essential Issues:
(1) Whether patient has liberty interest to refuse medical treatment?
(2) Whether parent has a right to exercise a choice, independent from patient?
Holding: SC did not directly address whether the right to refuse life-sustaining medical treatment is a fundamental right protected by the Due Process Clause. However, the Court assumed it was a fundamental right for the purpose of deciding whether a state could demand a high evidentiary standard before withdrawing such treatment. Basically, SC says there is a right, but never say whether it is a fundamental right. Therefore rational basis appears to apply.
Rule: The due process clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment, and a state may legitimately seek to safeguard the personal element of this choice for incompetent persons through the imposition of heightened evidentiary requirements.
Washington v. Glucksberg
1997
Facts: Terminally ill patients challenged the constitutionality of a Washington law making it a crime to assist another to commit suicide.
Holding: Almost every state bans assisted suicide. The due process clause protects fundamental rights and liberties that are implicit in our system of liberty and justice. In substantive due process cases, as a threshold, we require that a challenged state action implicate a fundamental right before requiring more than a reasonable relation to a legitimate state interest. Here, the right to commit suicide has long been rejected. Because suicide has been banned historically, the right to commit suicide is not a fundamental liberty interst protected by the due process clause. However, Washington’s ban on suicide must still be rationally related to legitimate government interests. This requirement is met because it meets Washington’s legitimate interest in preserving human life, protecting depressed or mentally ill people who would withdraw their request to commit suicide if their depression or pain were relieved; protecting the integrity of the medical profession; protecting the poor, the elderly, and disabled persons from abuse, neglect, an mistakes; protecting disabled and terminally ill people from being devalued by society, and protecting against the possibility of voluntary or involuntary euthanasia.
Rule: The right to commit suicide is not a fundamental right protected by the due process clause of the 14th Amendment.
Notes:
· Might not be enough to justify an outright prohibition…
· Government interest- procedural guidelines
· Even though we are talking about someone who is terminally ill….unqualified interest in the life of the government.
· Even raising the terminal sedation issue, court is going back into the quality of life argument.
· Seems disingenuous for the court
Vacco v. Quill
1997
Facts: Physicians brought action challenging constitutionality of New York statutes making it crime to aid person in committing suicide or attempting to commit suicide.
Holding: Supreme Court, Chief Justice Rehnquist, held that New York’s prohibition on assisting suicide did not violate Equal Protection Clause of Fourteenth Amendment. Equal protection clause creates no substantive rights, but rather, it embodies general rule that states must treat like cases alike but may treat unlike cases accordingly.
Notes:
· Desire to avoid quality of life decision by the court
· Voluntary physician assisted suicide and voluntary euthanasia are pretty much the same on the same continuum, the minor difference is that the first the doctor gives the patient the ability to do it by themselves, the latter is when the doctor actually flips the switch
· Government interest is a concern for involuntary euthanasia
· You have to draw a distinction between means and ends, they are both subject to scrutiny
Procedural Due Process
Procedural Due Process and the Right to a Hearing
· Procedures required when government deprives persons of liberty or property
· Threshold question: whether there was a preexisting right to liberty or property in the first place.
· Defining “Property” and Liberty”
o line of case established that the due process clause does not protect against deprivation of all government benefits, but only of “entitlements” created by state law.
o Court has often deferred to state law in delineating constitutionally protected property rights.
o There has been a restrictive reading on “liberty.”
· What Process is “Due”?
o Balancing approach à due process if flexible and call for such procedural protections as the particular situation demands.
