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Substantive Due Process text

14th amendment (state and local laws)


Substantive Due Process test

1. What has the gov't deprived you of?
2. Determine the laws purpose and how well it fits the purported gov't end sought.
3. Is it a fundamental right based on history/tradition or emerging awareness?
4. If yes, is there a significant infringement?
If yes to 3 AND 4 --> Strict scrutiny
If no to 3 OR 4 --> rational basis


Substantive due process Strict scrutiny

1. Is there a compelling state interest?
- safety/health/national security
No? law fails SS
Yes? Go to 2.
2. Is the law narrowly tailored to achieve compelling state interest?
- law cannot be over/under inclusive


Substantive due process Rational Basis

1. Is there a legitimate state interest?
2. Is the law rationally related to that interest?


Substantive Due Process Analysis steps

1. State action
2. Fundamental Right?
3. History/Tradition?
4. RB or SS
5. Enabling clause


Substantive Due Process Fundamental Rights

Have family
Raise family how you want


Equal Protection Fundamental Rights



Substantive Due Process -- Abortion

1. State action
2. Conception -> Viability
- state can regulate abortion so long as the law doesn't create an undue burden (or substantial obstacle)
- regulation is related to informing the woman or protecting her health
3. Viability -> on
- state can ban abortion, except where mother's life is in jeopardy
4. enabling clause


Equal Protection: Discrimination analysis steps

1. State action
2. classification scheme on face or as applied?
3. who is benefited/burdened?
4. purpose of law?
5. are the classes similarly situated?
6. is there discriminatory intent AND disproportionate impact?
8. Enabling Clause


Discriminatory Intent steps to prove

1. Substantial, unexplainable, stark, grossly disproportionate impact
2. Historical background (past history of intentional discrimination by D)
3. specific (procedural) sequence of events leading up to the challenged action
4. timing of the challenged action
5. legislative history or contemporaneous testimony by the gov't
6. substantive departures from prior decisions
7. foreseeability of disproportionate impact


Equal Protection Intermediate Scrutiny

Illegitimate children
undocumented alien children's access to education

1. Important state interest
2. Substantially related to gov't interest


How to get to a suspect class

-unchangeable characteristic
- class lacks ability to protect themselves
- history of discrimination
- characteristic that defines class is irrelevant to its contributions to society


Equal Protection Strict Scrutiny

National Origin
Alienage (some state laws)

1. compelling state interest
2. narrowly tailored
- is the law necessary means to the end?
- was there a consideration of race-neutral means?
- was there a consideration of individualized determination?
- was there a consideration of temporary measures/limited duration?


Equal Protection Hybrid Rational Basis

Sexual Orientation
Mental disability

1. legitimate state interest (law not assumed to be valid)
2. rationally related (with actual interests of the law)


Equal Protection Past discrimination

same test for affirmative action

Test: remedying past discrimination is compelling state interest
- remedying discrimination of your own?
- is it a precise remedy?
- passive participant in private discrimination


Equal Protection: fundamental rights

substantial burden --> SS
Insubstantial burden --> RB


Equal Protection: FR: Right to vote

- must determine the level of burden
- courts look at whether the condition on voting is reasonably related to determining voter qualifications
ex. voter must be 18 (insubstantial) --> RB
ex. poll tax (substantial) --> SS

1. state action
2. general interest election
3. can also implicate right to travel
4. substantial --> SS
5. Insubstantial --> RB
6. enabling clause


Equal Protection: FR: Right to Travel

- move to a new state with intent to stay permanently --> rights of a citizen of that state (14th amendment Privileges and Immunities)
- if penalty --> SS
- penalty:
- (1) substantial waiting period (2) on a vital gov't benefit
- welfare, emergency med care, voting
- all fixed point requirements --> penalty
- durational requirements --> usually not penalties
- if no penalty --> RB

1. state action
2. permanent move (14th p&i)
3. penalty (EP: FR)
4. fixed point: SS
5. Durational point: 30 days RB; 1 yr SS
6. Enabling clause


Art IV, sec 2

Privileges and Immunities: temporary travel


Privileges and Immunities: temporary travel test

- temp out-of-state travel
- only protects fundamental p&i
- denial of right permitted if substantial reason for deprivation
- out-of-stater is a peculiar form of evil
NO state action or enabling clause


State Action

- for any 14th amendment question, make sure D's conduct constitutes state action
- if it is clear that gov't is D, don't need state action analysis


State Action tests

1. Traditional gov't function (company towns/voting)
- private party is performing a function which has a history and tradition of being exclusively gov't controlled
2. Gov't compelled discrimination
- more than allowance, permission, aid, or encouragement
3. gov't enforcement of private discrimination (but for)
- would discrimination have occurred without gov't involvement?
4. symbiotic relationship -- one party NEEDS the other to survive
5. pervasive entwinement
- private actor is behaving so similarly to gov't it could be mistaken as part of the gov't


Procedural Due Process

A 1 is there a protected liberty interest or property interest at stake?
2 liberty = reputation
- not being physically punished
- refuse antipsychotic drugs
- having custody of children
- not
- prisoners
- lost job but can find another (no defamation)
3 property
- legitimate claim of entitlement
- state law to fed law to contract
B 1 If liberty/property interest, you are entitled to notice and an opportunity to be heard
2 how much --> balancing test
a what is the importance of the individual interest at stake?
b what is the risk of erroneous deprivation of individual's right b/c of procedures adopted, and what is the value of additional substitute procedure?
c how burdensome for gov't to provide additional procedures?


Enabling clause text

Congress shall have the power to enforce, by appropriate legislation, the provisions of the 14th amendment.

when congress passes a law to carry out the 14th amendment, it must comply with the enabling clause


Enabling clause test

1. laws passed to carry out the provisions of the 14th amendment must be congruent and proportional
a congruency -- requires legislature demonstrate that past violations of the 14th amendment have occurred
b proportionality -- requires legislature identify a specific instance of past discrimination AND be sufficiently tailored to remedy that discrimination
2. Laws will be proportional if it is not overbroad