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Constitutional Law II Outline - Professor Wallace - Campbell Law - Part 4

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 3 | Part 5 >>

Due Process:

  • Procedural v. Substantive Due Process
    • Procedural = right to notice of hearing
    • Substantive = fairness to what the government is doing

Procedural Due Process

  • 5A and 14A require “due process of law” before a state may deprive a person of “life, liberty, or property”
  • Two Question Approach
    • First- has there been a deprivation?
      • Liberty = make one’s own choices and be free from restraint.
      • Property = a legitimate claim of entitlement, court usually looks to state law
        • Except for federal government benefits- ask, does the law create a reasonable expectation to receipt of benefit?
      • Life is generally applied to criminal context
    • Second Q- Was that deprivation without due process of law?
      • Process due → minimum is notice and hearing, two approaches:
        • Old: Process must be consistent with constitutional text and traditional common law procedural protections
        • New: Matthews -style balancing factors, consider: 1) private interest affected by the deprivation; 2) the risk of an erroneous deprivation of this interest through the procedures used and the value of any additional procedural safeguards; and 3) the government’s interest, including fiscal and administrative burdens that additional safeguards will impose
      • Yet this doesn’t always mean hearing must happen before the deprivation!!!!!
        • Example: bail hearings are AFTER you’ve been in jail
          • Just must be adequate notice and hearing, reasonable in circumstances

Substantive Due Process

  • Based on substantive fairness of all legal rules
    • Protects “unenumerated fundamental rights”, based on fairness of the law in itself not really how these rights have been deprived
      • “Legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation”
  • Natural rights theory: Individuals possess pre-political rights that antedate positive law—rights embedded in the Anglo-American legal tradition (Lockean)
    • See Field and Bradley dissents in Slaughter House: Rights which “belong to the citizens of all free governments” (SDP rejected by Slaughter House majority)
    • lower courts later came to recognize that these rights include liberty of
    • contract

Lochner Era

  • Liberty to enter Contracts: Lochner , Court struck down law that limited amount of hours bakers could work per week b/c violated liberty of contract (fundamental right)
    • Right isn’t absolute, but the law is evaluated w/ heightened scrutiny
      • Court treats “health law” as pretextual, was really objective-driven political decision
  • Meyer v. Nebraska (1923): Court invalidates law that makes it a crime to teach foreign languages to a child under eighth grade
    • Right involved?
      • Teachers: “economic right” to teach German (weak)
      • Parents to employ person to teach their children: control upbringing of child →
      • Pierce v. Society of Sisters (1925): Court invalidates state’s compulsory education law that prohibits parents from choosing to send their children to private religious school ➡
        • Right involved? “liberty of parents and guardians to direct the upbringing and education of children under their control
        • Wallace: this would be 1A case now that it has been incorporated
    • At this point, FDR starts being a bitch and the Court starts upholding economic type legislation
      • Abandons textual approach that presumes liberty over constitutionality, begins treating these laws with RB scrutiny
        • Presumes constitutionality of social and economic legislation
        • Leads to federal government becoming huge
    • Court stays silent about substantive due process for a long ass time

Modern Revival of SDP

  • Begins in 1960s, focusing on noneconomic fundamental rights not enumerated in constitution
    • Basis? 9A- Enumeration of bill of rights does not deny or disparage rights retained by the people
      • Unenumerated rights exist and are just as important as the bill of rights
  • Griswold v. CT , law prevented prescriptions and use of contraceptives for married couples → court strikes down based on implicit fundamental right to marital “privacy
    • How they get there? → looking to “shadows” “penumbras” of other amendments
      • ie – 1A, 4A, amendments based on zones of certain privacy interests
      • Scope isn’t limited to marital privacy, also right of individual privacy
        • Extended to unmarried persons in Eisenstadt
    • Wallace: “privacy right” is too general, could have struck down law by RB test
      • Catholic legislature proposed this ban based on animus

Unenumerated Fundamental Rights

  • This begs the question- how do we know what is a “fundamental right”? And what level of generality should they be defined? Approaches:
    • Rights “so rooted in the traditions and conscience of our people as to be ranked as fundamental”
      • Snyder v. Massachusetts (1934) ‣
    • Rights “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if sacrificed”—
      • Palko v. Connecticut (1937) ‣
    • Rights “deeply rooted in nation’s history and tradition”—
      • Moore v. East Cleveland (1977) (cited in Glucksberg, p. 1610)
  • Three views about unenumerated fundamental rights:
    1. No unenumerated fundament rights—the only constitutional rights are enumerated
    2. Non-enumerated fundamental rights exist, but they are consensus rights deeply rooted in our nation’s history and tradition
      • Wallace’s view
        • Wallace says 9th Amendment “deny” and “disparage” is a place where these unemurated rights can be found
      • Not 100% agreement but deeply rooted general consensus
    3. Non-enumerated fundament rights exist, but they originate in concepts of personal autonomy and dignity as defined by current culture and declared by SCOTUS

Analytical Framework for Substantive Due Process

  1. Identify the right/liberty interest involved
    1. Be specific!!! Not just “right to privacy”
  2. Is the right/interest infringed?
  3. Determine level of scrutiny
    1. Enumerated right
      1. (warrants own analysis, fundamental right analysis applies only to analysis of incorporating BOR)
    2. Unenumerated right (from common law, tradition, penumbras, etc.)
      1. If fundamental right → apply strict scrutiny
        1. Marital privacy, raising children, abortion
      2. Non-fundamental → apply minimal scrutiny
        1. Property and economic regulations
        2. Will probs be upheld
  4. Is there a sufficient justification for the government’s infringement of the right?
    1. Fundamental = compelling
    2. Non-fundamental = legitimate
  5. Is the means sufficiently related to the end?
    1. Fundamental = least restrictive means
    2. Non-fundamental = rational relationship between means and end


  • Roe v. Wade: Court shifts from “privacy” to “liberty” and personal autonomy interest
    • If Court followed “deeply rooted consensus” view → would have probably upheld the abortion ban
      • Abortions have been banned for a long time, 50/50 controversy is not consensus
      • No other right subordinates one’s life in favor of another
        • Except maybe self defense
    • Holding at the time:
      • States can’t regulate during first trimester
      • Second trimester- States can regulate to protect mother’s health
        • But not life of the unborn!
      • Third trimester- State CAN regulate to protect POTENTIAL LIFE OF UNBORN, except when necessary to protect LIFE and HEALTH of mother
        • Broad in what “health of mother” entailed
        • Essentially large enough health exception that this is constitutional right to abortion at any point
    • Issues with substantive due process?
      • Undermines democratic process
      • Legislature is best position to decide these types of matters
  • Planned Parenthood v. Casey: Court upholds 24 hour waiting period and parental consent (w/ judicial bypass) provisions; but strikes down spousal consent/notification requirement
    • Liberty interest of 14A once again linked to personal dignity and autonomy
    • Replaces Roe’s trimester framework with straight pre-/post-viability line and moves when viability occurs
      • State regulations BEFORE viability line are reviewed under strict scrutiny if they cause an “undue burden” or “substantial obstacle”
        • But woman’s health exception for post-viability abortions still in effect
    • Even under the third trimester, Court has carved out an exception that swallows the rule
  • Updates in modern court
    • Whole Women’s Health v. Hellerstedt (2016) Challenge to TX laws that (1) required physicians to have admitting privileges at nearby hospital and (2) required abortion clinics to have facilities comparable to ambulatory surgical clinics
      • Holding: Unconstitutional. Laws placed substantial obstacle in path of women seeking abortion and, therefore, constitute an undue burden on abortion access
      • Significance: Harder for states to enact medical regulations covering pre-viability abortions unless they can point to evidence that such regulations demonstrably protect the health of the mother
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