Procedural and Substantive Due Process Flashcards Preview

Constitutional Law II > Procedural and Substantive Due Process > Flashcards

Flashcards in Procedural and Substantive Due Process Deck (35):

Substantive due process Textual Hooks

V. Amendment. "No person . . . shall be deprived of life, liberty, or property, without due process of law."

XIV Amendment " . . . Nor shall any state deprive any person of life, liberty, or property, without due process of law."

NOTE, the 14th carries the state action requirement.

Text only talks about procedural protections.

"procedural" due process is redundant.

"substantive" due process is nonsensical.


What procedures are required before the state can deprive a person of life, liberty, or property?

(1) Has there been a deprivation?

(2) Is it a deprivation of life, liberty, or property?

Goldberg v. Kelly (1970): welfare benefits = property.

(3) What process is due?

Three part balancing test from Mathews v. Eldridge.


Murrays Lessee v. Hoboken Land & Improv. Co. (1856)

Traditional Approach to procedural DP In Murray's lessee the court identified two principles for determining when due process is violated:

(1) See if the deprivation violates some other part/provision of the constitution,

(2) Look to the baseline of the established common law procedures in England as they have been received in the United States.

Due process as customary, traditional law.


Mathews v. Eldridge (1975)

Matthews wants evidentiary hearing for social security benefits being terminated.  Social security benefits are property right under Goldberg v. Kelly.  Ct holds no hearing required.

Three Part Balancing Test to determine whether procedural due process has been violated.

(1) What is the private interest that will be affected by the official action?

(2) What is the risk of an erroneous deprivation of such interest through the procedures used?

(3) What is the governments interest? Including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail?

Ct has more discretion compared to Murray's Lessee test.


Goldberg v. Kelly (1970)

Welfare benefits are property and as such cannot be withdrawn without an evidenciary hearing, lest such deprivation be a violation of procedural due process.


Calder v. Bull (1798) RoL SDP Debate

The constitutions bans on ex-post facto laws is meant to serve a notice requirement FOR CRIMINAL LAWS. They DO NOT apply in civil cases.

Chase J.: natural law

- Believes that SDP exists,

- Constitution protects natural or fundamental rights, rights that people have by virtue of being people.

- BoR enumerates some but not all of these, it is up to courts to discern and protect them.

- Social contract theory

Iredell J.: positive law

- Does not believe in SDP

- Rights exist because the law says they exist,

- No natural laws, you need legal documents/authority to base judicial decisions on


Lochner v. New York (1905)

Economic substantive due process

Freedom of contract is a fundamental constitutional right under the DPC of the 14th amendment.

Police power of legislature to interfere with liberty of contract must serve a valid gov't purpose: protection of safety, public health, or public morality.

Right to liberty has exceptions however, the line of demarcation is "what is fair, reasonable, and appropriate" (Bray: same judgment legislators are making)

Note Holmes' dissent, it is not the role of the judiciary to strike down dumb policy judgments. Constitution is not intended to embody a particular economic theory. (In line with Iredell)

Harlan Dissent. Question of morals.


West Coast Hotel v. Parrish (1937)

Minimum wage law is a valid exercise of the states police power - OVERRULES LOCHNER.

The freedom to contract freely IS NOT a fundamental right.

End of Economic SDP.


Substantive due process framework

(1) Is there a fundamental right and has that fundamental right been infringed?

(2) Is there a compelling state interest to justify infringement of the fundamental right?

(3) Has the government narrowly tailored its law to achieve its compelling interest? 


Determining when to use EPC analysis and when to use SDP analysis.

If the law applies TO EVERYONE

- Use SDP


If the law makes a CLASSIFICATION

- Use the EPC, unless fundamental rights prong.


Meyer v. Nebraska (1923)

Holding #1. The right of parents to direct the educational upbringing of their children is a fundamental right (NEVER OVERRULED)

Holding #2. There is a fundamental right for teachers to pursue their occupation (OVERRULED BY WEST COAST HOTEL.)

Holmes Dissent: ugly law but state has an interest.  It is desirable for all citizens of the US to hear common tongue.

McReynolds: recognizes power of State to compel attendance, reasonable regulations.


Pierce v. Society of Sisters (1925) RoL Facts

RoL Court re-affirms parents right to direct the educational upbringing of their children by sending them to private schools

Facts. Oregon had passed a statute which mandated that children between the ages of 8-16y/o must attend a public school in their local district of residence.

Ct strikes down law using reasonableness test from Lochner and holds that statute unreasonably interferes with liberty of parents.


Troxel v. Granville (2000)

RoL A statute which grants visitation rights to anyone that requests them so long as visitation is in the best rights of the child is held UNCONSTITUTIONAL because it offers no deference to the wishes of the parents.

- Fundamental right of parents to raise children in the manner they choose, this statute attempted to place all decision making in the judges hands.

- Presumption that parents will already do what is in the child's best interests, this presumption can only be rebutted with evidence to the contrary.

Scalia Dissent: like Holmes: statute is up to state legislature.  No fundamental right to raise children in Constitution.


Griswold v. Connecticut (1965) RoL Goldberg & Harlan

RoL An "implied right of privacy" exists within the bill of rights which prohibits a state from preventing married couples from using contraception, whether for reproductive or other reasons.

- Court EXPRESSLY refuses to revive Lochner,

- PENUMBRAS in the I, III, IV, V and IX amm. create a zone of privacy.  New interpretative method for fundamental rights: extrapolate fundamental rights from specific texts to perceived general principles like marital privacy and apply principles back as if they were the specific textual provisions.  Specific guarantees in the Bill of Rights have penumbras formed by emanations from those guarantees that help give them life and substance.

Goldberg. Right to marital privacy can be found in the un-enumerated rights secured against the government in the IX. A right can be determined as fundamental BY LOOKING AT THE TRADITIONS and CONSCIENCE of the American People. Similar to the Murrays lessee approach. Ct. never adopts IX as way to create rights. 

HARLAN ALSO AGREES WITH THIS APPROACH, but does not implicate the IX.

- Compare his approach in Poe v. Ullman. Perfectly fine for the state to regulate something like adultery or homosexuality because it would be difficult to prove protection of those activities is rooted in the history of the nation.


Black Dissent: No Constitutional right to privacy. Quotes Iredell - positive law.


Eisenstadt v. Baird (1972)

Everyone has a fundamental right to purchase and use contraception; regardless of marital status.

- If Griswold protects the right to purchase and use contraception for married people, then it must also protect the right for single people as well.

If right of privacy means anything it means the right of the individual to be free from gov't intrusion.

(Goldberg & Harlan wouldn't think holding is correct - no tradition)


Roe v. Wade (1973) RoL

Blackmun: Women have a FUNDAMENTAL RIGHT to REPRODUCTIVE AUTONOMY and this includes the right to have an abortion. Any legislation restricting this right is subject to STRICT scrutiny.

- Grounded in the DP clause of the XIV.


State has a valid interest in: (1) Maternal health, and (2) Prenatal Life. The right to abortion is balanced against these state interests.

Rehnquist Dissent: right of privacy is not involved in this case.


Roe v. Wade (1973) Trimester framework

Trimester #1. Regulation is IMPERMISSIBLE. The right to an abortion in the first trimester is ABSOLUTE.

Trimester #2. The state MAY REGULATE abortions in a way that are REASONABLY RELATED TO MATERNAL HEALTH (i.e. medical emergencies to preserve the health of the mother.)

Trimester #3. Court deems this to be the POINT OF VIABILITY. In this stage the state MAY REGULATE, including prohibiting abortion EXCEPT AS NECESSARY to preserve the life or health of the mother.


Planned Parenthood v. Casey (1992)

RoL Previability. The right to an abortion MAY NOT BE PROHIBITED and the state MAY NOT impose a substantial burden to obtaining an abortion (THIS IS THE UNDUE BURDEN TEST). Post Viability.

Postviability, the state MAY RESTRICT abortion, PROVIDED THAT it makes an exception for the life and health of the mother.

- Core of Roe is upheld but the trimester framwork is scrapped.

- State interest in prenatal life IS TRIGGERED AT CONCEPTION.

The state can regulate right away but it may not place an undue burden on the availability of abortions during the previability stage.


Caseys Undue Burden Test, what counts and doesn't count as an undue burden?

An undue burden is when a state regulation imposes a "substantial obstacle" in the path of a woman seeking an abortion of a nonviable fetus. Where the PURPOSE and EFFECT of the law is to place an undue burden = unconstitutional.

Undue Burden = spousal notification

Not undue Burden = 24 hr waiting period, informed consent, "medical emergency" exception, parental consent for minors, reporting requirements for abortion providers.


Casey (1992) Stare Decisis Test

Majority thinks Roe was wrong but it was upheld. Roe must be adhered to "whether or not mistaken."


  1. Has the rule proven to be intolerable simply in defying practical workability?
  2. Is the rule subject to the kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation?
  3. Have related principles of law so far developed as to have left the old rule no more than a remnant of abandoned doctrine.
  4. Have the facts changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.

#4 is most important, whether the facts have changed to rob old rule of significant application or justification.

when "thoughtful part of Nation" is ready to change



Gonzalez v. Carhart

Prohibition of partial birth abortions was not an undue burden, even though the law had no exception for the mothers health.


Whole Woman's Health v. Hellerstedt (2016)

Texas law requiring abortion providers to have admitted privileges at local hospitals and that abortion facilities meet ambulatory care standards IS an undue burden on the woman's right to an abortion.

Alito Dissent: Safety is more important than access.  The admitting privileges were required in part because of woman's safety.

Thomas Dissent: get rid of tiers of scrutiny because they're too arbitrary.  Use constitution and then leave it to the states. 


Cruzan v. Missouri Dept. of Health (1990)

Assuming that there is a right to refuse medical treatment FOR A COMPETENT PERSON that will lead to death, the state CAN REQUIRE "clear and convincing evidence" that a person in a vegetative state would have wanted the life-prolonging treatment to be withdrawn.

- The court HAS NEVER EXPRESSLY found a SDP right to refuse medical treatment. THEY ASSUMED this right existed for a COMPETENT PERSON in Cruzan.


Washington v. Glucksberg (1997)

Physician assisted suicide IS NOT A FUNDAMENTAL due process right.


- Laws/Regulations concerning physical related suicide thus receive RATIONAL BASIS SCRUTINY.

State has legitimate interests in regulating decisions about death, including the preservation of life.


Washington v. Glucksberg (1997) Approach to substantive DP


(1) A fundamental right must be "objectively rooted in history"

(2) A fundamental right must be "carefully described" at the most specific level possible, to see whether it fits within the "actions, history, legal traditions, and practices"

This analysis REMAINS ONLY FOR physician assisted suicide, Overrule in Obergefell.

No Justices except Scalia reject substantive due process.


Bowers v. Hardwick (1986)

Right of consensual same-sex relations is neither "implicit in the concept of ordered liberty, nor derived from deep historical roots.

- Court applies the two-prong test in Glucksberg and concludes NO FUNDAMENTAL RIGHT to gay relations,

- Overruled by Lawrence v. Texas

(would have failed rational basis test had it been applied)


Lawrence v. Texas (2003)

Court EXPRESSLY OVERRULES Bowers v. Hardwick,

Kennedy: Court DOES NOT EXPRESSLY FIND a fundamental right to engage in homosexual activity, but does talk about self-determination rights and autonomy rights mentioned in Casey.


What we get is rational basis with bite. Harm principle. Only justification for restricting liberty is if the conduct causes harm.


Obergefell v. Hodges (2015)

Due process clause forbids a state from limiting marriage to a man and a woman.  Nominally SDP and EPC but really SDP bc idea of marriage as a fundamental right.  Philosophical terms.

Glucksberg framework rejected; no tiers/EPC.  A State is not justified in legislating on basis of morality unless it can show it is legislating against some harm.


4-Part Justification:

(1) Autonomy: right to personal choice regarding marriage is inherent in concept of individual autonomy

(2) Dignity: State confers dignity on people through marriage (Thomas Dissent: dignity is innate)

(3) Protection of children: shields children from stigma of unmarried parents.

(4) Foundation of Ancillary Rights: rights that accompany marriage - tax breaks

- Courts must exercise reasoned judgement about the creation of new rights and liberties (reasoned judgement standard form Lochner)


Holmes' Dissent

Lochner v. New York

  • It is not the job of the judiciary to strike down legislative laws that it thinks are bad policy judgment,
  • Reather, the constitution by its bery nature is meant to include many economc/social theories,
  • The constitution is not meant to force states to exercise their police powers uniformly, but to instead give them the power to make their own judgments about laws that are best served to their citizens
  • The "liberty" protected by the 14th amendment should not function to prevent the exercise of the dominant opinion amongst the states.


Obergefell v. Hodges

C.J. Roberts dissent

  • Same sex marriage is an issue which should be left to the states to decide.  The constitution does not define marriage so states should be allowed to define this term ass they wish - including upholding the traditional view.
  • The court, has denied the right of the people to decide through the democratic process and with it they had denied same-sex marriage the legitimacy that would have been bestowed upon it.
  • Call to history, remember the dangers in the past of finding fundamentla righst as a matter fo substantive DP.
    • Dredd Scott
  • Court is effectively acting like a SUPER LEGISLATURE,
  • If gay marriage is now valid, there is no valid reason why plural marriage should not be.


Obergefell v. Hodges

Scalia dissent

  • An unelected committee of nine lawyers has stopped the debate and the democratic process on this issue.
  • Historically, framers of the fourteenth ammendment could not possibly have intended it to eliminate the traditional view - indeed the universal view (in their time) - of marriage.
  • Justices are not policy makers and are not representative of the country at large.


Substantive Due Process Doctrine

Constitution protects certain "natural" or "fundamental rights" - rights that persons possess as human beings.

Bill of RIghts enumerates certain "natural" rights but it doesn't specify all of them.

Courts must find, discern, create these natural rights.

Once discerned, courts protect these rights against state encroachment through DP of the 14th Amendment.


List of Fundamental Rights

familial autonomy: marriage; custody and educational direction/upbringing of children

reproductive autonomy: procreation; purchase and use of contraceptives; abortion

sexual autonomy: same sex relations (Not expressly stated)

medical autonomy: Right for a competent person to refuse treatment (assumed, in Cruzan)

- right to travel, right to vote

- NOT: right to die

- possibly right to define the world as one likes


How Courts find new rights

1. by ascertaining and enforcing society's conventional morality.

  • not certain rights are true; just what's approved by ordinary folks

2. Under Constitutional order, certain human rights are elevated into legally enforceable constitutional rights and if a law infringes on one of these basic human rights, law isn't valid.

  • moral, philosophical reading of Constitution based on liberty, autonomy, and equality


Keeler v. California

Born alive rule: an infant can't be part of a homicide charge unless born alive.