CON LAW II – SPRING 2008

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DUE PROCESS

The due process clause of the V amendment, made applicable to the states through the
XIV amendment, provides that the government shall not take a person’s life, liberty, or
property without due process of law. Due process contemplates fair procedures, which
requires at least an opportunity to present objections to the proposed action and a fair and
neutral decision maker. The timing and scope of the hearing due depend on the
circumstances of the deprivation. In most cases, the person being deprived of life, liberty,
or property should receive notice of the government’s proposed action and have an
opportunity to respond before the deprivation.

PROCEDURAL DUE PROCESS

Is there state action?

To find state action, an actor must perform public functions or have significant state
involvement.

Was there an actual deprivation of life, liberty, or property without due process
of law?

Procedural Due Process (PDP)

Step 1:

Is the matter at stake life, liberty, or property?

Life – is taken literally as a person’s life. (death penalty, euthanasia).

Liberty – freedom from restraint, personal autonomy, privacy.

Property – is a legitimate claim of entitlement to something. (state statutes or common

law – NOT the U.S. C)

Step 2:
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Does the π have a legitimate claim of entitlement (LCE) to notice and hearing
before the right in question is diminished?

- Bilateralness – mutual understanding between the government and the π that notice and
or hearing would be given

- look to state statutes, may outline procedure to be followed before deprivation

Step 3:

If π has a LCE How much notice or hearing is due?

- The C defines what “due process” is, not the state

- Generally, “notice and hearing” means a notice of charges or accusations and an

opportunity to tell your side of the story

- The C and the Supreme Court use the Eldridge Factors to determine how much notice
and hearing is due

Eldridge Factors

(1) Private interest – what is at stake for the π – how severe is the possible
deprivation?

(2) Public interest – the function involved and the physical and administrative
burdens to provide the notice they did – what would additional or substitute
procedural requirements entail?

- Ask – what are Δ’s needs/purposes for the deprivation; time frame; state
emergency (fact sensitive); what would requirements be for providing more
notice and hearing.
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(3) Fairness and Reliability – what is the risk with erroneous deprivation of such
interests through the procedures that were used – what differences would more
notice and hearing make; would the outcome be different if π was given more notice
and hearing?

SUBSTANTIVE DUE PROCESS

- There are 4 types of rights that could be at stake in SDP:

(1) Property – requires a takings analysis

(2) Contract – requires an impairment of K analysis

(3) Non-fundamental

(4) Fundamental

Step 1:

Is there a right? Defining the right:

- You must first define the right in question; important because it will determine how the
Court will scrutinize the deprivation of that right

- π wants to characterize the right at stake in such a way that the court will deem it
“fundamental”

- to do this, π may analogize it to an already established fundamental right, or tailor it to

be defined as such by implicating the factors which the Court considers “fundamental”

- The right must not be defined too broadly or narrowly, or it will not be fundamental

Example: Bowers v. Hardwick, π (a homosexual) was arrested under a law that banned
sodomy between two people. The π defined the right as “the fundamental right of
homosexuals to participate in consensual sodomy.” This was deemed NOT fundamental.
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But then in Lawrence v. Texas, the right was more broadly defined as the “right to be
autonomous in making personal decisions, or in other words “the right to engage in
consensual, intimate behavior”

- You must consider the justices viewpoints when defining the right, as some ideas of
“fundamental rights” are more deeply rooted than others

- Quiz Question: Court’s analysis in Lawrence compared to the court’s analysis

of previous substantive due process claims:

- The way the right is defined:

Bowers – “fundamental right of homosexuals to engage in sodomy.”

 Lawrence – “right to be autonomous in making personal decisions” in other

words, “the right to engage in consensual, intimate behavior.”

Step 2:

Is the right FUNDAMENTAL?

- The ROLE of the Court when analyzing laws passed pursuant to the Police Powers is
whether it is fair, reasonable, and appropriate exercise of police power, or an
unreasonable, arbitrary interference with personal liberty. (Lochner)

- When a subject matter is “affected with a public interest, or ‘clothed with a public
use’” the Courts see regulations in that area valid so long as there is a reasonable
relation to the legislative purpose. (Nebbia)

- Valid Public Purposes are: Public Health, Morals, and Safety.

- Regulations will be struck down only if they are arbitrary, discriminatory, or totally
irrelevant to the policy the legislature is free to adopt. In other words, Minimal or
Rational Basis Scrutiny.

- Courts will analyze with minimal scrutiny federal and state laws and regulations which
are “affected with a public interest”, economic in nature, or non-fundamental
rights.

- Rational Basis Review: Means must be “rationally related” to the purpose of the
legislation. “Rational” simply means conceivable or possible.

- There is a presumption of constitutionality of such laws, unless no rational

relationship exists between the purpose of the law and the means adopted to achieve that
end.

- Courts will defer to legislative findings on facts, unless the facts have changed.

Fundamental Rights
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The burden is on the challenger to prove that the right is fundamental.

Step 3:

Why is the right FUNDAMENTAL – Where from?

(1) Explicit or Expressed in the Constitution;

(2) Penumbral:

- Implied from tradition and history: cultural traditions of marriage, and sexual
relations w/in – how do we divide those traditions? (Douglas, Griswold)(Goldberg
concurrence, Griswold)

- 9th Amendment: 2 arguments

 Justice Goldberg, Griswold – intended to establish that liberties

enumerated in the C are not an exhaustive list

 Justice Black – limit federal government to powers enumerated in the C

- Justice Stone’s Footnote 4 from Carolene:

- There are 3 situations when where heightened scrutiny is appropriate:

(1) specifically mentioned in the C – DP

(2) government singles out, draws a line – EP

(3) somehow distorts legislative process – improper delegation of

governmental authority

- Otherwise, Holmes’ reasonable man approach is an appropriate standard

- Fundamental rights are afforded to individuals. (Einhart)

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- Denials of fundamental rights are subject to strict scrutiny

- Courts have laid out several tests to determine if a right is “fundamental” these are:

(1) When a right is explicit in the Constitution.

(2) “Respect teachings of history and have solid recognition of basic

values that underlie our society.” (Moore p. 520)

(3) “Penumbras” (Douglas opinion, Griswold p. 475) “…emanations from those

(specific/expressed) guarantees that help give them life or substance”

(4) Ninth amendment (Griswold, Goldberg concurrence)

“To hold that a right so basic and fundamental and so deep-rooted in our
society as the right of privacy in marriage may be infringed because that right is not
guaranteed in so many words by the first eight amendments to the Constitution is
to ignore the Ninth Amendment and to give it not effect whatsoever. Moreover, a
judicial construction that this fundamental right is not protected by the Constitution
because it is not mentioned in explicit terms by one of the first eight amendments
or elsewhere in the Constitution would violate the Ninth Amendment, which
specifically states that “the enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the people.”

(5) “In determining which rights are fundamental, judges are not left at large to
decide cases in light of their personal and private notions. Rather, they must look
to the “(a) traditions and (d) [collective] (c) conscience of our people” to
determine whether a principle is “so (e) deeply rooted [there] … as to be ranked as
fundamental.” (Griswold p. 478, Goldberg concurrence)

(a) who are “our people”: wasp (often men and wealthy)

(b) “traditions”: where do we “find” these traditions – in our research, in the

library, it’s history and sociology (political science)

(c) “conscience” where in the library do we go to research this?

Psych/phil/religion (moral issues)

(d) “collective” = majority (typically as expressed thru the legislature)

(e) “deeply rooted” – long, long, historically established

(6) Natural Law

(7) “Same level of importance” as other express or fundamental rights.

(Zablocki)

If YES – STRICT SCRUTINY applies:

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The law is presumed void, and the burden is on the government to prove that the
infringement is necessary to achieve a compelling government objective (least
restrictive means possible/narrowly tailored).

If NO – RATIONAL BASIS REVIEW (minimal scrutiny):

The law is presumed valid, and the burden is on the challenger to prove that the law is
NOT rationally related to a legitimate state interest.

Fundamental Rights under Substantive Due Process:

Privacy, Travel, Voting

Privacy – C-A-M-P-E-R

- Court uses DPCs to protect an ill-defined cluster of noneconomic personal interests

that the Court thinks are critical to human autonomy

- Eisenstadt (487) – court held that law was not rationally connected to the
legitimate objective of deterring pre-marital sexual intercourse because it “would be
unreasonable to assume that Massachusetts has prescribed pregnancy and the
birth of an unwanted child as punishment for fornication, a misdemeanor.” The law
was not rationally related to the legitimate goal of “regulating the distribution of
potentially harmful articles” because “not all contraceptives are potentially
dangerous,” and there is no reason to think that contraceptive use would be any
more dangerous to unmarried people than to married ones. Court also rejected
prohibition of contraceptives as legitimate: “…the marital couple is not an
independent entity…but two individuals…if the right of privacy is anything, it is the
right of the right of the individual, married or single, to be free from unwarranted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child.”

- Griswold penumbras from: (1) bill of rights; (2) tradition and history; (3) 9th
amendment – (a) list of enumerated rights not exhaustive, (b) federal government
limited to enumerated powers.

Contraception
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Abortion – (PP v. Casey p. 500) normal strict scrutiny does not apply
because of 2 potential competing interests (1) mother’s health v. (2) fetus.
Road to Viability –
Before viability states may not prohibit abortion, but they may adopt
court recognizes regulations to protect the mother’s health and the life of the fetus as long as
“growing” state
interest as the regulations do not create an undue burden on the woman’s right to get
an abortion; after viability, state may prevent abortion unless the abortion is
necessary to protect the mother’s health.

- no right to abortion funding, even for indigents

- no duty to provide abortions in public hospitals

- spousal consent not required

- consent by both parents not required

- unemancipated minor – one parent may be required, but a judicial

bypass must be available – 2 findings (1) minor’s best interest; and (2)
maturity

Marriage – (Loving v. VA); (Zablocki v. Redhail)

Procreation

Private Education – (Wisconsin v. Yoder)

Family Relations – (Moore v. City of E. Cleveland p. 519)

- Quiz Question: Planned Parenthood v. Casey (500) – How did the joint
opinion in Casey change the court’s analysis of abortion restrictions?

- Viability becomes the key:

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 Court recognizes a “growing” state interest on the “road to viability”

- Undue Burden – triggers Strict Scrutiny; No undue burden – low level

scrutiny (rational basis)

Unlike Roe, where majority said all

acts were subject to SS; and
dissent said all acts should be
subject only to LLS – Here, some  When does an act create an undue burden:

(1) Purpose or effect;

(2) “Substantial Obstacle”

- 24 hour waiting period – Not

- Recording and reporting – Not

+ Spousal notification - Is

Travel

Voting