Individual Rights
Procedural Due Process
1) The procedures that must be followed before the government can deprive you of life, liberty, or property under the 5th (federal) and 14th (states) amendments
Substantive Due Process
1) The doctrine that the Due Process Clauses of the 5th and 14th Amendments require legislation to be fair and reasonable in content and to further a legitimate governmental objective. These are the fundamental rights that government cannot deprive you of no matter how fair the process.
SUBSTANTIVE DUE PROCESS FLOW CHART
1) The first question we ask is whether a right is fundamental.
a) Does it fall within the concept of liberty that includes such basic freedoms as thought, expression, or intimate conduct?
b) Is it similar to other rights the court has found, such as marriage, child rearing, family planning?
c) Do traditions or social values indicate that a right is so rooted in the civic conscience as to be fundamental?
2) Once you answer if it is a right…
YES
HEIGHTENED SCRUTINY
What level?
NO
RATIONAL BASIS
Is the law rationally related to a legitimate governmental interest?
Undue Burden
(abortion)
Strict Scrutiny
(default height scrutiny level)
If Yes, law is constitutional
Is the Law narrowly tailored to meet a compelling
Governmental interest?
If yes, constitutional
If no, then unconstitutional
If no, law is unconstitutional
Applied to laws regulating abortion or similar things.
Must be a balancing of conflicting state interests (i.e., protecting woman’s health/safety and
protecting potential life) and/or possible
third interest (i.e., unborn child’s right to life)
Carolene Products Famous Footnote 4
Says that there are three times when we apply a higher level of scrutiny than Rational Basis Scrutiny:
1) When legislation appears on it’s face to be within a specific prohibition of the constitution, such as those in the first 10 amendments
2) When a law restricts the political process
3) When the law is directed at discrete and insular minority groups, when we can’t trust the numerical minority against the tyrannical majority
The amendments:
1st – Freedom of speech, religion, press, assembly, petition for redress of grievances
2nd – Right to bear arms
3rd – Quartering of soldiers
4th – Unreasonable searches & seizures; search warrants
5th – Self-incrimination; takings clause; due process; grand jury
6th – Speedy & public jury trial in criminal cases; right to counsel; confront accusers
7th – Jury trial in civil cases
8th – Cruel & unusual punishment; excessive bail
9th – States that this is a non-exhaustive list of rights
10th – States, powers reserved to the states are those not specifically enumerated or prohibited reserved to states and people are those not specifically enumerated or prohibited.
Barron v. Mayor & city Council of Baltimore
1) The primary case that was overruled to make the states liable for government regulations that had previously only been assumed to the Federal Government. This change would manifest after the Civil War with the development of clear infringements on Federal Government authority through the propagation of apartheid policies and per se slavery after the enactment of the 13th amendment. Overruled by the Slaughter House Cases.
2) In this case Justice Marshall found it beyond question that the takings clause only applied to the Fed.
Civil War Amendments
13th – Abolishes slavery and gives congress the right to effect the abolition through legislation
14th – Says that all persons born in the US are citizens of the state in which they reside, with full rights of due process, equal protection under the laws of that state.
15th – Gives all MEN the right to vote regardless of race. Note that this does not pertain to women and that states can make laws restricting the right to vote as long as they are facially neutral (Jim Crow).
All these rights expand congress’ enumerated powers, and change the balance of power for the first time in favor of the federal government over the states. Before the civil war the balance favors the states as the founding fathers are afraid of the power of the federal government. after the civil war the danger of the states having too much power becomes apparent.
Saenz v. Roe (1999) – CA residency requirement for welfare case
1) CA enacted a statute limiting the amount of welfare benefits that new residents migrating to CA could receive to that which they were getting in their prior state of residence. Those being in residence for a year or more were entitled to the higher CA level welfare benefits.
2) Court struck down the CA law that gave a lower level of welfare benefits to new arrivals to the state and a hig
gulating the quality of food. The court says in this regard that there is no evidence that a baker who has worked for a longer period is more likely to produce impure food than one that has worked a shorter period. The court finds further that if the purpose is to protect bakers, essentially baking is not dangerous and bakers don’t need protection.
4) Lochner is early evidence of rational basis scrutiny. In this case, the law did not have a rational basis.
5) What is wrong that was remedied in Lochner?
a) Liberty meant only physical restraint
b) Extends due process to entitles people to fair laws, not just fair procedures
c) Freedom to contract is now part of those rights
d) States can be justified in overriding those rights to:
i) Protect health
ii) Even the strength between employers and employees
iii) To protect residents even paternalistically
REPRODUCTIVE RIGHTS
1) The courts have generally found reproductive rights under the auspices of privacy and right to plan one’s family.
CONTRACEPTION
1) The Supreme Court has taken steps in recent years to loosen reproductive and sexual rights. The Court has seemed to come to the opinion that if an action does not harm others, then that action is not at the discretion of government to infringe upon its institution.
2) When will heightened scrutiny apply instead of rational basis scrutiny?
a) When a law infringes on a fundamental right. A fundamental right is one that is part of our history, tradition, and basic social values (Griswold).
Griswold v. Connecticut
1) Strict scrutiny
2) Workers for Planned Parenthood in Connecticut were charged with providing information about birth control to married couples despite a state law that such was illegal.
3) The Supreme Court found that the law violated the penumbras established by the 1st, 3rd, 4th, 5th and 9th amendments that create an implicit right to privacy. They find that part of this right to privacy is that right to privacy based on the sanctity of the home and person. Because the law interferes with the basic rights of a person, the court applies strict scrutiny. In this regard, the majority believes this law sweeps unnecessarily broadly in pursuit of its goal of preventing unmarried persons from having sex. For this reason it is unconstitutional. Other justices find the concept of liberty encompassed within the 14th amendment supports this to a greater extent.
Note that the real crux of this case is not that people have a right to contraception, but that the law
