Substantive Due Process
I. Overview
A. Origins of SDP states that the important concern is the extent to which the SDP clause of the 5th & 14th amendments may be invoked to impose limits on the substance of gvmtl regulations
B. History
1. Slaughterhouse Cases
2. Lochner Era
a. Marks the birth of SDP law
b. Courts began to say that the 14th amendment protects certain unenumerated rights
c. The Lochner court began to identify those rights (largely economic & commercial rights)
d. Balancing test b/w the rights of the individual and the rights of the state
3. Abandonment of Lochner
a. Case was U.S. v. Carolene
i. Court upheld a federal law that prohibited the shipment of ‘filled milk
ii. In interstate commerce. Used RB and law passed scrutiny. The case used RB for the issue at hand but suggested other levels of scrutiny for more important FRs.
b. Footnote 4 is the most important aspect of the case.
i. Possible added to secure the 5th vote needed
ii. Killed SDP as we knew it and emphasized FRs
iii. Huge influence on Equal Rights Protection jurisprudence
iv. What kinds of legislation get more than rational review?
i. Laws that are in the text of the CON or Bill of Rights
ii. Laws that protect the political system
iii. Laws that target specific races, religions or minorities. Specifically minorities that are discrete & insular which means that historically, they have been targeted by discrimination and the scales are already tipped against them.
1. What makes a discrete and insular minority?
a. Discrete means that this group of people share an immutable characteristic which is one that you cannot change AND is reasonabl easy to identify (sex, race, national origin)
b. Insular means that the group of people tend to stick to themselves and congregate and live in certain neighborhoods, worship and recreate in particular places.
c. Today we call it Fundamental Rights Jurisprudence (same thing)
d. Punitive Damage Constraints
i. Recall BMW v. Gore where $600 compensatory damages and $2M punitive
ii. State Farm v. Campbell: $1M compensatory, $145M punitive
iii. Philip Morris v. Williams: $821K compensatory, $79.5M punitive
iv. Recall the single digit ratio when comparing compensatory and punitive awards
v. Court also referred to the ‘raised eyebrow’ test
II. The right of ‘privacy’ (or ‘autonomy’ or ‘personhood’)
A. Select liberties are fundamental or preferred and can only be abridged by a state if the state can demonstrate an extraordinary justification
B. Regulations that deal with fundamental rights (FR) are always held to a strict scrutiny (SS) review
C. The importance of the right sets the level of scrutiny for analysis
D. Included in the right to privacy is
1. The right to procreate and
2. not to procreate (abortion & contraception) as
3. right to marry
4. right to live together as a family
5. right to have custody, care and control of your children
6. Right to make certain medical decisions
7. Right to engage in certain consensual intimate conduct
III. Rights recognized by the court
A. Textual
1. Appears explicitly in CON
2. Those that have been incorporated are: 1st, 4th, 5th, 6th and 8th
3. Ex: free speech, freedom of religion
B. Nontextual aka unenumerated fundamental rights
1. Rights the court found exist under the 5th & 14th amendments
2. Court applies a standard to determine if the right is fundamental
a. Is the claimed right implicit in the concept of ordered liberty?
i. Yes, it is a fundamental right
ii. No, it is not a fundamental right
b. There are ways to get protection but the protection offered is limited
c. Included are:
i. Right to privacy
ii. Right to interstate travel
iii. Right to vote
iv. Right of political association
3. Liberty interest
a. All fundamental rights are liberty interests
b. Not all liberty interests are fundamental rights
IV. Substantive Due Process Analytical Model (only applies to unenumerated rights & using SS)
A. Affects all those within a certain population. If there is a classification, go to Equal Protection model first.
B. Right to privacy is recognized as a FR (includes procreation, abortion, education)
1. Is it a fundamental right? (BOP on challenger)
2. Is it listed?
a. If yes, ok
b. If no, ask…
3. Is there a history and tradition affording special protection to the claimed right?
a. If yes, the right is fundamental
b. If no, ask…
4. Is it implicit in the concept of ordered liberty? (not mentioned as often as history and tradition)
a. If yes, then the right is fundamental and go to question 5
b. If no, use rational basis review
5. Has the gvmt substantially impaired the exercise of that right (BOP on challenger)
a. If no, use rational basis review
b. If yes, then ask…
6. Gvmt must show a compelling interest (BOP on gvmt)
a. Court knows a compelling interest when they see one
b. No bright line rule
c. Easy for the gvmt to meet
i. Ex: protecting children from pedophiles, exploitation, healthcare standards are enforced
ii. Non-ex: saving money, ease of administration (legitimate interests but NOT compelling. They will work for rational basis review though)
d. If no compelling interest, DP violation
e. If yes, compelling interest, ask…
7. Is this law narrowly tailored? Has the gvmt used the least restrictive means? (BOP on gvmt)
a. This is where most laws get killed
b. Gvmt not using the lea
birth
2. Gvmt can fund facilities that provide services to aid in childbirth and prenatal care. Gvmt can pose a condition that facility cannot discuss abortions. Ok to do based on conditional spending (see Con Law I). See free speech section on why it is ok for gvmt to make facility support that message (ok for gvmt to enforce)
3. Gvmt can favor childbirth over abortion. Can show this view by financing childbirth but not abortions.
Equal Protection of the Law (prof loves this)
I. Introduction
A. Equal Protection Clause 14th amendment)
1. No state shall deny any person equal protection of the law
2. Rationale: similarly situated persons are treated the same by the law
3. If gvmt wants to classify us, they can but it cannot be done based on gender or race if there is no purpose
4. Gvmt only has to act rationally in doing the classification
a. Can be divided among people who wear glasses and who don’t
b. Can be divided by the color of their shirt, etc.
c. It just has to be rational
B. EP Levels of Scrutiny
1. Strict (compelling interest; least restrictive means; law narrowly tailored)
a. Suspect classifications
b. Ex: race, national origin, alien
2. Intermediate (significant/important interest; substantially related)
a. Gender or illegitimacy
3. Rational (legitimate interest; rationally related)
a. Non-suspect classes (all others)
b. Rationally related to legitimate state interest
C. When faced with an EP problem
1. Start simple and keep it simple
2. Inquiry is to ask if we have 2 or more groups that are situated the same or substantially similar to one another?
a. If yes be concerned and run through analytical model
D. Laws can discriminate in three ways
1. Facially discriminate
a. Proves a prima facie case of EP violation
b. Easy to prove; think separate but equal
2. Facially neutral but discriminatory impact
a. Ex: No person who is less than 5’7” and 170 lbs may be a police officer
3. Facially neutral but discriminatory application
a. Ex: No person may vote who cannot pass a literary test
E. EPC Analysis (prima facie elements in red & highlighted; challenger has BOP to establish)
1. Does this law (regulation, policy, rule, etc.) classify either expressly or impliedly?
a. No, then no EP issue. Go to DP analysis and do full analysis there
b. If yes, ask…
2. Was this classification created for the purpose of discriminating against a class AND is the impact of the law to discriminate against that class?
a. Impactàjust look to see how the law is operating (easier of the two)
b. Must be BOTH present
c. Gvmt must have set out a purpose to discriminate against that group (not easy to prove)
d. Purpose is the most difficult to analyze
