Due Process

Substantive Due Process in the United States

A. If analyzed literally, limitation relates solely to procedure

Slaughterhouse Case - due process only a protection against procedural unfairness

B. Growth (1890s to 1930s)

Lochner v. New York (1905) - Invalidation of New York Law which limited the hours which a bakery employee could work to 10 per day and 60 per week on the ground that it abridged liberty of contract

Substantive Due Process in the United States

- not a valid labor law (cannot readjust bargaining power unless bakers were not as intelligent as other workers or needed unusual protection)
- not a valid safety or health measure since bakers are not an especially endangered group and longer working hours did not affect quality of goods

Rationale - Natural Rights Theory - Laissez Faire - Social Darwinism

Substantive Due Process in the United States

C. Decline (Late 1930s) - FDRs New Deal Program resulted in greater deference to legislative intervention in economic affairs - Separation of powers D. Rebirth (Late 1960s)

- Fundamental rights - Right to privacy (sex and marriage) - Right to personal autonomy (child bearing and child rearing)

RIGHT
Non Fundamental

TEST
Mere Rationality

economic regulations social welfare regulations

legitimate governmental objective means rationally related to objective

Fundamental

Strict Scrutiny

right to privacy right to personal autonomy

governmental action is necessary (not any less restrictive means) compelling governmental objective is at stake

Fundamental Rights Cases

Meyer (teaching of foreign languages) - right of teachers to teach - right of students to acquire knowledge - right of parents
Pierce (compulsory attendance of public schools) - right of parents to direct upbringing - right of schools to property

Fundamental Rights Cases

Buck v. Bell (sterilization) - three generations of imbeciles are enough Griswold (contraceptives) - several Bill of Rights provisions create a penumbra or zone of privacy - privacy implications of proof in prosecutions - problem with interpretivism

Fundamental Rights Cases

Bowers (sodomy)
Stanley (reading obscene materials) Roe v. Wade (abortion) - invalidated on privacy grounds, Texas nearly-complete ban on abortions - provide trimestral approach to pregnancy

Fundamental Rights Cases

- Criticisms
* * * * weighing of relative values use of privacy precept of sufficient abstractedness judicial legislation

Fundamental Rights Cases

Casey (1992) - abortion no longer a fundamental right - trimester approach overturned - States may restrict abortion so long as they do not place undue burdens on the womans right to choose 24 hour waiting period + informed consent parental consent spousal notification

Equal Protection Clause (Section 1)

- Over and Under-inclusive Classifications

trait connection legislative goal

goal is either prevention of harm or furthering of a goal

Equal Protection Clause (Section 1)

STATUTE : PURPOSE : Police to retire at 50 To keep police free of officers with poor health i. ii. iii. iv. v. Perfect fit Perfect lack of correlation Under-inclusive Over-inclusive Over and under-inclusive

Equal Protection Clause (Section 1)

- Three Levels of Review
Classification Fundamental Rights (right to vote, access to courts and interstate travel) Suspect Classification (race, national origin, alienage) Level of Review Strict Scrutiny (necessary to promote a compelling governmental interest)

Equal Protection Clause (Section 1)

Classification Semi-suspect Classification (gender and illegitimacy)

Level of Review Middle level (substantially related to an important governmental objective) Mere rationality (classification bears a rational relationship to a legitimate governmental objective)

None of the above

Due Process