Constitutional Law Review

Substantive Due Process
Substantive Due Process • Some liberties (i.e., rights rather than privileges) not mentioned in the Constitution but 1 identified by the court are considered so fundamental to the idea of liberty that their invasion by government is presumed to be void and can be sustained only if the government justifies the invasion under heightened scrutiny. The current era of “Substantive Due Process” is one in which some government regulations of intimate relationships or decisions have been invalidated. The core of substantive due process is the idea that some laws unreasonably (or substantially) interfere with a person’s enjoyment of life, liberty, or property in such a fashion that the law cannot be considered valid law. More simply, sometimes the government goes too far!

! Tvctuboujwf!Evf!Qspdftt Bobmztjt;! 1. Determination as to whether the right is fundamental 2.

Fundamental rights are either (1) deeply rooted in history and tradition, or (2) deeply connected with another recognized fundamental right (i.e., you cannot have a fair trial without having a fair opportunity to be heard • penumbra theory).

Determine whether (and to what extent) the right was infringed upon
Is the government action a mere inconvenience that poses no direct legal obstacle to a person’s ability to enjoy the liberty interest at issue, or does the government action substantially interfere with a person’s ability to enjoy their liberty interest? Once you answer question 2, you have found your answer to question 3.


Determine what level of scrutiny should apply
Analyze the government action under either: (1) rational basis review, (2) intermediate scrutiny, (3) strict scrutiny, or (4) something in-between the three clearly defined categories. See Chart below and the Equal Protection Review Sheet.

4. !

Determine whether (i) the plaintiff can prove that the law/regulation is arbitrary or unreasonable, or (ii) whether the government can carry the burden of proving that the government action that infringes upon the claimant’s rights is sufficiently related to that constitutionally-sufficient purpose. See back for the specific language.

Jobst Test • First ask whether
the regulation is a direct or indirect infringement on the claimed right, then consider whether it is an insubstantial or substantial interference on the asserted right?

Is there a fundamental right at issue?

Indirect and/or insubstantial interference with a fundamental
right. No direct bar.
Example: the consequences of marriage on a person’s eligibility for social security benefits)

Substantial (i.e., significant) and direct interference legal obstacle to the enjoyment of a fundamental right.
Example: banning interracial marriages.

Rational Basis Review
Unless you attack the government action under some other constitutional provision or legal theory.

Rational Basis Review

Intermediate or strict scrutiny

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

buy and use contraceptives (note: you also have a right to procreate or to simply practice how to procreate!) travel (from state to state) abortion (without substantial interference during the first trimester) marry (with qualifications) (note: think freedom of association) live w/ members of one’s extended family (note: no fundamental right to live w/ unrelated persons) view Obscene stuff in your home (note: think privacy and freedom from unreasonable search & seizure) when indigent, obtain a divorce w/out the necessity of a filing fee engage in sodomy (particular sexual conduct, so long as it is between two (or more) consenting adults custody of your child & a right to control (or make decisions for) your minor child etc . . .


Although the U.S. Supreme Court has identified certain liberties as fundamental rights, State Constitutions may provide additional protections. Therefore, what may not be a fundamental right under the federal constitution may be a fundamental right under a particular state constitution. Always check the law of your jurisdiction.

What is the appropriate LEVEL OF SCRUTINY? The applicable standard of review depends on the type of discrimination 4.. 1. Const. societal discrimination) o Legitimacy: illegitimacy does not carry an obvious badge o Tusjdu!Tdsvujoz! Under Strict Scrutiny. What makes a classification. . Wealth/The Poor (Zablocki) 5. o Great deference given to the government o o Burden on the π to prove no rational/legitimate purpose o o Almost any conceivable legitimate purpose will suffice o Most governmental action examined under this standard is upheld unless it is. Fundamental Right(s) 5. Justification may require a documented pattern of wide spread discrimination 3.. Age 2. Virginia) 2. What is the CLASSIFICATION? How is the government drawing a distiction amongst people 3. . a law will be upheld if it is necessary to achieving a compelling government interest. Bobmztjt! 1. Does the Government Action Meet the Level of Scrutiny? Is the government action justified by a sufficient purpose Sbujpobm!Cbtjt!Sfwjfx! Under the rational basis standard.. Irrational/Unreasonable.e. (ii) (3rd Party) undue burden analysis. Strict Scrutiny 1. or 3. insular & discrete minority. 3. Amend. National Origin 3. Is there a GROUP BASED classification/distinction in the statute or ordinance? 2.S. Arbitrary.] deny to any person within its jurisdiction the equal protection of the laws.Constitutional Law Review EQUAL PROTECTION “No state shall [. sexual orientation) Joufsnfejbuf!Tdsvujoz! Under the intermediate scrutiny standard. a law will be upheld if it is substantially related to achieving an important government objective. o Remedial Purpose o Judicial Remedy:Injunctive Relief o Diversity in Education o Affirmative Action o To survive Strict Scrutiny. 2. (iii) congruent & proportional to address the identified evil or harm. 2. Narrowly tailored • (i) neither overinclusive or underinclusive. History: severe & pervasive discrimination. Gender 2. mental disability. 1. (ex. and 4. inherently suspect ? 1. a law will be upheld if it is rationally related to a legitimate interest. Necessary • no less restrictive alternative(s) exist 2.. Alienage 4. Disability 4. government action must be. immutable traits. Legitimacy .” U. o The government carries the burden of showing an exceedingly pursuasive justification for the classification o o Unconstitutional: gender classfication(s) based on role stereotypes o o Constitutional: classifications designed to remedy (i) past discrimination. rational basis w/a bite 1. XIV. and (ii) differences in opportunity (i. Race (Loving v. Sexual Orientation 3. Marriage is not a full on fundamental right • conduct the Jobst Analysis Intermediate Scrutiny! Rational Basis Review 1. inability to represent themselves or secure rights. Animus: Designed to harm a politically unpopular group There may be a more stringent test in some situations known as the rational test with bite where the government bears the burden of proof. etc.