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Substantive Due Process
Applies when a state law burdens the exercise of fundamental, or non-fundamental rights.
Substantive due process guarantees that laws will be reasonable and not arbitrary.
Generally where a law limits the liberty of all persons to engage in some activity, it is a due process question.
Two standards of review:
- 1) Strict Scrutiny: Fundamental rights
- 2) Rational Basis: Non-Fundamental rights
If legislation infringes on some rights that are non-fundamental rights
, such legislation gets the presumption of constitutionality.
Therefore, the burden is on the plaintiff to show:
Federal Communications v. Beach
- 1) The legislation at issue does not have a legitimate government interest (the interest may be hypothesized); OR
- 2) The means used are not rationally related to advancing the legitimate government interest. The means can be over inclusive, under inclusive, and it does not matter that a less drastic alternative was available.
, economic regulations satisfy the equal protection requirement if "there is any conceivable state of facts that could provide a rational basis for the classification."--
Justice stevens, "The court's test is tantamount to no review at all.
- - This test is very easy to pass.
- - Look for claims regarding interference with the autonomy of commercial activity, economic decision making, licensing, running the business, etc.)
- Most gov'tal action examined under this standard is upheld unless it is arbitrary or irrational.
Strict Scrutiny (when does it apply) (DPC and EP)
- A. Suspect Classifications:
- 1. Race
- 2. National Origin
- 3. Religion (either under EP or Establishment Clause analysis)
- 4. Alienage (unless the classification falls within a recognized "political community" exception, in which case only rational basis scrutiny will be applied).
- B. Classifications Burdening Fundamental Rights
- 1. Vote
- 2. Travel
- 3. Privacy
- 4. 1st Am. rights.
- 5. Family members living together
- 6. Access to the Courts
- 7. Other Rights Recognized as Fundamental
Strict Scrutiny (Actual Test)
- - Once it is established that the statute at issue substantially interferes with a fundamental right, or suspect classifications, the Court applies strict scrutiny.
- - The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.
- - A law will be upheld only if it is necessary to achieve a compelling or overriding gov't purpose.
- 1) Whether the statute is supported by sufficiently important state interest (must be a specific interest, cannot hypothesize); AND
- 2) the means used are closely tailored to effectuate only this INTEREST.:
- i) the means cannot be over-inclusive: "sweeps more broadly than necessary"; or
- ii) The means cannot be under-inclusive.
When the means are so substantially over-inclusive or under-inclusive, they raise evidence that the articulated reason to have this statute is a pre-text (the real reason is that the gov't is basically being shitty.)
Substantive DPC (Sequence)