Substantive Due Process
Main Premise:
Under substantive Due Process analysis, a court is asked to determine the constitutionality of a law, which abridges the rights of an individual person.
à (WHAT interest is being abridged)
The Court will review the substance of legislation to see if it unduly interferes with an individual’s rights or interest that are protected by the Due Process Clauses of the Constitution.
The court protects certain individual rights (such as the right to marry, the right to procreate, or the right to refuse medical treatment) from government abridgment because those rights are aspects of liberty protected by the Due Process Clauses of the Constitution.
(A) Substantive Due Process Analysis (The Basics)
(1) Determine which government is acting.
(2) Determine what right has been abridged/violated.
(3) Place the abridged right within the Constitution.
(4) Ascribe constitutional weight to the right/interest abridged.
(5) Set the appropriate level of scrutiny
(6) Balance the abridgment of the individual right against the proffered governmental interest.
(B) Explanation of Each Step of the Analysis
(1) Determine which government is acting.
If a state or the federal government takes action which adversely affects a person’s individual rights and that person challenges the law, the challenge must be based on a specific provision of the Constitution.
2 Due Process Clauses:
The Due Process Clauses of the 5th and 14th Amendments provide a potential basis for challenging government action which arguably impinges on individual rights.
If the “federal government” is acting à Use the 5th Amendment & Bill of Rights
5th Amendment language:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Bill of Rights
Amendments 1-10.
These amendments were enacted and protected only against actions of the federal government; these provisions were not limitations on the states.
If a “state government” is acting à Use the 14th Amendment & Doctrine of Incorporation
Generally:
§ 1 of the 14th Amendment, adopted in 1868, was a limitation on state power.
14th Amendment language:
§ 1 – All person born or naturalized in the United States, and subject to the jurisdiction ther
Amendment, the Court held that the clause did not incorporate any of the protections of the Bill of Rights, but rather protected only those rights which flow from the relationship between a United States citizen and the federal government.
In other words:
· After the Slaughterhouse Cases, the Court held that provisions of the Bill of Rights may be sufficiently “fundamental” as to be protected against state abridgement through the 14th Amendment Due Process Clause
Important note on Slaughterhouse Cases:
· Only once in history has the court used this clause to invalidate a state law.
*** This case made the P&I clause quiet under the 14th Amendment. No longer is it used as an argument for finding fundamental rights. The Court now uses the DPC.
