Substantive Due Process

Question 1

What is now called procedural due process makes sure that the ___

Answer 1

application of the law is not arbitrary (govt not depriving people of life/liberty without fair procedures)

Question 2

In modern times, due process has been expanded to protect __ rather than __

Answer 2

rights to life/liberty/property, strictly the procedure govt must go through to deprive people of such

Question 3

The process part of substantive due process is ___

Answer 3

a misnomer, what is process that is substantive

Question 4

Substantive due process is criticized because it rests on a ___

Answer 4

policy determination by judges who weigh whether public benefit of law enough to justify violating substantive due process

Question 5

Ham says there is ______ to substantive due process, it just requires __

Answer 5

no limit, being inventive

Question 6

Ham says if SDP gets stretched too far, __

Answer 6

it will collapse in on itself

Question 7

SDP is the basis for a wide array of __

Answer 7

examination into the substance of state laws

Question 8

Power of the state to regulate business is subject __

Answer 8

to judicial scrutiny and limits

Question 9

Lochner facts

Answer 9

owner of bakery saying state statute regulating baking hours uncon because regulating working hours interferes with economic liberty to purchase or sell labor

Question 10

Lochner held that the statue was ____

Answer 10

in violation of due process

Question 11

Lochner held DP violated because in constituted __

Answer 11

an unreasonable, unnecessary and arbitrary interference with the right and liberty of individual to contract

Question 12

Lochner is no longer __

Answer 12

good law

Question 13

Lochner says the _____ was not enough to justify ___

Answer 13

public health/safety benefit, deprivation of liberties

Question 14

Ham thinks Substantive due process is using ___

Answer 14

due process claim but not actualy due process

Question 15

Ham criticizes free labor argument because ___

Answer 15

is there anything in Constitution about right to free labor

Question 16

Some support Lochner for placing ___

Answer 16

limit on state police powers against liberty

Question 17

____ are cases where SDP extends from protetion to economics into protections for personal liberty

Answer 17

Meyers and Pierce

Question 18

Meyer facts

Answer 18

instructor at Zion lutheran school taught German reading to student but law in place restricting teaching of foreign languages due to WWII anti-German sentiment

Question 19

Meyer holding

Answer 19

statue violates due process

Question 20

Meyers said violates due process because interferes with (3)

Answer 20

(1) economic liberty, calling of modern languages teachers
(2) personal liberty, opps of pupils to acquire knowledge
(3) personal liberty, power of parents to control ed of own children

Question 21

In addition to due process, Meyers court also says violates

Answer 21

free speech

Question 22

Pierce facts

Answer 22

OR statute compelling children to attend public school between 8-16 years

Question 23

Pierce said statute violated due process because ..

Answer 23

(1) economic liberty, property of private school owners
(2) personal liberty, liberty of parents and guardians to direct ed and upbringing of their children

Question 24

Pierce doesn’t argue that you need __ just argues that ___

Answer 24

need process for deprivation, just have these rights

Question 25

Ham thinks we sacrificed DP for a concept of __

Answer 25

process that may be due that favors gov powers over individual rights

Question 26

Ham thinks balancing tests ___

Answer 26

give judges more power to restrict our liberty

Question 27

Ham says DP has expanded to ____ and ___ in a way that doesn’t mean anything

Answer 27

philosophic generalities (right to marry, educate kids), benefits

Question 28

Lochner Framework to evaluate SDP

Answer 28

1. did statute interfere with liberty
2. was statute legit exercise of police power
3. balance liberty with leg choice

Question 29

Modern SDP not grounded in ___

Answer 29

common law procedures and SoP

Question 30

Ham thinks SDP gives judges opp __ but law should ___

Answer 30

to act on personal policy preferences, be more certain than a Rorschach test

Question 31

Allgeyer (1897) defined liberty as more than just ___ but rather ___

Answer 31

freedom from physical constraint, personal freedom (enjoyment of faculties, live and work where wants, enter Ks, pursue livelihood)

Question 32

Ham says law is about spheres of authority and hope govt will be reasonable but ___

Answer 32

if not not for judges to second guess them (intrude on leg power)

Question 33

SDP is independent of ___

Answer 33

incorporation (specific BOR provisions into 14th) so courts habit of resorting to DP clause

Question 34

Meyer says liberty can’t be interfered with without ___

Answer 34

some reasonable relation to state purpose (teaching German not harmful)

Question 35

Pierce didn’t make EPC argument because ___ BUT ___

Answer 35

didn’t specifically discriminate against Catholics, was the intent

Question 36

Economic substantive due process ___

Answer 36

has long been abandoned

Question 37

SDP is about __

Answer 37

enumerated rights (especially sexual rights)

Question 38

Ham thinks due process doesn’t mean -___ just that __

Answer 38

life/liberty/property can’t be infringed, freedom not to be punished w/o fair process

Question 39

SDP means protection for some harms under ___

Answer 39

fed law as well as state law

Question 40

Ham thinks ideas about con law can be different from ___

Answer 40

what one would like to see substantively

Question 41

Costs to SDP

Answer 41

legitimacy
what might be done next

Question 42

Ham says since 20th century if want to change the law you __

Answer 42

put pressure on judges not the amendment process

Question 43

Founders did not intend BOR to __

Answer 43

limit states

Question 44

SDP used to __

Answer 44

incoporate BOR against the states

Question 45

Slaughterhouse cases says __

Answer 45

incorporation through PI clause fails (about citizens not persons)

Question 46

Incorporation through DP succeeds because judges read life/liberty/property to mean ____ and __

Answer 46

fundamental rights and interpret that to add new rights and to incorporate enumerated rights

Question 47

Due process at the founding was not ___ but rather __

Answer 47

abstract procedural justice derived from fairness/natural law, established and familiar processes of the common law courts

Question 48

Ham thinks DP should not be a ___ but rather a __

Answer 48

vehicle of progress, blockade against regres

Question 49

Murray’s Lease said that 14A function is ___

Answer 49

negative not affirmative and carries no mandate for particular measures of reform

Question 50

Old point of DP not to protect you in ___ but __

Answer 50

in courts, but protect from executive actions

Question 51

BOR applies to every ___

Answer 51

grant of power in Consti

Question 52

Murray’s Lease facts

Answer 52

customs collector owed Treasury, instead of ordinary judicial process Treasury issued distress warrant employing summary procedure

Question 53

Murray says that the summary procedure was ___

Answer 53

due process because distress warrant historical exception to due process in court

Question 54

Murray is used to justify admin state as ___ because __

Answer 54

due process, govt can assert public rights throguh admin adjudication

Question 55

Ham critique of Murray justification

Answer 55

little exception not about admin procedure about self help by property owner (the govt)