Text Assist for Substantive Due Process Flowchart

Substantive Due Process theory began to develop before the Civil War. Prior to this development, both the English and the early American legal theorists’ idea of Due Process focused on the procedural feature of the concept. With the rise of "natural rights" philosophy, theorists began applying Substantive Due Process. One case that had a profound impact in the rise of Substantive Due Process was Dred Scott v. Sanford, 60 U.S. (2 How.) 393 (1857), in which the Supreme Court held that a person’s property right in his slaves cannot be extinguished simply by the act of moving to a free state. So, even though Dred Scott now lived in a "free" state, he was required (per the decision of the Supreme Court) to remain a slave. From this decision, the Court began to realize that Due Process meant much more than just procedure. While Procedural Due Process gives the Court the power to say to the government, "You may not do this unless you do it a certain way"; Substantive Due Process allows the Court to say, "You may not do this at all!" For more information of Substantive Due Process, see the following flow charts: Incorporation of the Bill of Rights, Lochner v. New York, Economic Due Process.

Identify the individual interest involved:

Individual rights may be:
1) Vested rights (right to contract, right to vote), or
2) Natural law (e.g. the right to marry and raise a family, the right to use birth control, the right to work and pursue a calling)

Describe the interest in specific terms:
Exactly what is the interest? Who does it concern? What effect does this law have on the interest? What value does this law take away from your interest? How long will the diminution in value last?

Determine whether the interest is protected:
In the Slaughterhouse Cases, the Supreme Court declined to recognize independent substantive content in the Privileges & Immunities Clause of the Fourteenth Amendment. It further found the Due Process and the Equal Protection Clauses inapplicable except with respect to the institution of slavery and its immediate effects.

Is the interest included within a constitutional right?
The answer to this question depends on whose theory of interpretation you adopt. See the different possibilities below.

Textual Rights can be found in:

1) Bill of Rights - Explicit Textual References in the Constitution:
Liberty, under the Fourteenth Amendment, includes those provisions in the Bill of Rights which the Court deems to be incorporated into the Due Process Clause as well as the fundamental rights which are derived either from the concept of liberty or other constitutional values.
2) Privileges & Immunities Clause of Article IV.

Quasi-textual rights can be found in:
1) Preamble of the constitution ("blessings of liberty")
2) Declaration of Independence

External Rights:
These are rights that are not in the Constitution but have been recognized by the courts. For example, liberty, under the Fourteenth Amendment, includes those provisions in the Bill of Rights which the Court deems to be incorporated into the Due Process Clause as well as the fundamental rights which are derived either from the concept of liberty or other constitutional values.

CBI -- Clause Bound Interpretation:
Clause-bound interpretivists, aka "textualists," included Justices Black and Stewart. They propose that the interpretation of which textual rights should be incorporated into the 14th Amendment to be made binding on the states is limited to the clauses in the Bill of Rights.

NCBI -- Non-Clause Bound Interpretation:
Non-clause bound interpretivists, aka "rejectionists," included Justices Douglas and Goldberg. They propose that the interpretation of which textual rights should be incorporated into the 14th Amendment to be made binding on the states is not limited to the clauses in the Bill of Rights.

Fixed Common Law:
Justice Scalia proposed that constitutional rights are those "external" rights that have been recognized by the judiciary.

Justice Rehnquist expressed his deference to existing common law in Garcia v. San Antonio MTA, 469 U.S. 528 (1985) staing: "any departure from the doctrine of stare decisis demands special justification. . . . The stability of juicial decision, and with it respect for the authority of this Court, are not served by the precipitous overruling of multiple precedents."

Free-wheeling Natural Law:
The framers did not clearly define the right to privacy or even what it means to be a person. Perhaps they failed to do so not because these areas are not important, but because they considered these "natural rights" theories so imbedded in the political philosophy of the time that stating it was unnecessary.

For example, in the Declaration of Independence, the rights of life, liberty and the pursuit of happiness are not only declared fundamental, but "inalienable," lifting them beyond the reach of the government.

Life:
While the Supreme Court has never attempted to define the word "life" specifically, it endeavored into similar analysis in the voluntary abortion cases. See Roe v. Wade, 410 U.S. 113 (1973), wherein the court defines "a person" as not to apply to an unborn fetus.

Liberty:
Liberty, under the Fourteenth Amendment, includes those provisions in the Bill of Rights which the Court deems to be incorporated into the Due Process Clause as well as the fundamental rights which are derived either from the concept of liberty or other constitutional values.

Lochner both strikes down and upholds "natural rights" of individuals. The decision upholds the natural right of freedom to contract, yet strikes down the regulation of certain labor. Natural law is exemplified in many aspects of American society. For example, in a "laissez faire" economy and "Social Darwinism." A "laissez faire" type of economic society assumes inequality is going to occur. This is what the Justices of the Supreme Court were trying to remedy in the majority decision of Lochner.

Property:
While "property" includes more than personal belongings, reality, chattels and money, there must be a legitimate claim or entitlement to the benefit under state or federal law (e.g., public education, welfare and continued public employment).

Whenever the government enforces an individual’s private property claim against another individual, the government has acted to deprive someone of his property. However, such action will be allowed if the individuals are given a fair procedure to determine who should get the property in question.

Fundamental Rights:

Strict Scrutiny Test:
1) Does the law further a compelling state interest (ENDS must be compelling);
2) What MEANS are being used by the state to meet the compelling state interest; and
3) Are the MEANS necessary or narrowly tailored? (If the law is found overbroad, it will be struck down as unconstitutional.)

Strict Scrutiny Distinguished from the Rational Basis Test:
1) Strict Scrutiny "strictly scrutinizes" the law. The law being looked at must involve a "compelling" state interest, which is much more urgent than a reasonable state interest (Rational Basis) or even an important state interest (Intermediate Scrutiny -- used by the Supreme Court in gender or illegitimacy cases).
2) Strict Scrutiny Standard: The burden of proof is on the government.
3) Rational Basis Standard: Presumption that the law is valid.

Non-Fundamental Rights:

Rational Basis Test:
1) What is the Objective of the Law (ENDS); *
2) What MEANS are being used by the state to meet that objective; and
3) Are the MEANS rationally related to the ENDS? **

* Note: A court will not probe for the true purpose of a law.
** Keep in mind that courts are extremely deferential to the legislature when applying the Rational Basis Standard. Virtually no law has been struck down under the Rational Basis Test since 1937.

Does it unduly burden exercise of the right?
A small burden on an individual’s rights may be acceptable. It is when the burden rises to the level of "undue" that the state’s interference has gone too far and is in violation of the Constitution.

Evaluate state's interests (ENDS):
What is the law supposed to do? Why is it needed?

Some Supreme Court thoughts on the issue of "ends": 1) "Whether legislation is wise or unwise as a matter of policy is a question with which we are not concerned." Home Building & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934). 2) "[A]rguments [about the social utility of legislation] are properly addressed to the legislature, not to us. We refuse to sit as a ‘super-legislature.’" Ferguson v. Skrupa, 372 U.S. 726 (1963).

State's ends must be compelling:
The Court will examine the legitimacy of the state’s "ends." Forbidden state objectives include:
1) Textually forbidden objectives (e.g. state religion)
2) Exclusion

State's ends must be legitimate:
A "legitimate" governmental interest (the requirement for the Rational Basis Test) is much easier to extract and defend than a "compelling" governmental interest (which is the requirement for the Strict Scrutiny Test). In Lochner, however, the majority of the Court found no "legitimate" state purpose. According to the Lochner majority, simply regulating labor conditions (where there was no true health and safety purpose to the law) was not a legitimate purpose. 198 U.S. 45 (1905).

Evaluate MEANS & their relationship to ENDS:
How do the requirements of the law solve the problems intended to be fixed by the law. In Lochner, for example, although the majority rejected the "health and safety" justification for the law, Justice Harlan’s dissent saw the validity of this argument, citing evidence that the health of the effected bakers was below the national average and that limiting the working hours would effect their health. Justice Harlan believed that as long as there existed an arguable "health and safety" rationale for a law, the Court should sustain it. 198 U.S. 45 (1905).

Some Supreme Court thoughts on the issue of "means":
1) A law "should not be unreasonable, arbitrary or capricious." Nebbia v. New York, 291 U.S. 502 (1934).
2) "Whether any state of facts either known or which could reasonably be assumed affords support for the law." U.S. v. Carolene Products, 304 U.S.144 (1938).

Law as implemented must substantially advance those ends found compelling:
The Strict Scrutiny Test is a very difficult test to pass. Usually, the law being analyzing fails to meet this high standard.

Legislature may chose any MEANS rationally related to ENDS:
Courts are extremely deferential to the legislature when applying the Rational Basis Standard. Usually, the law being analyzed is found constitutional.




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