Substantive Due Process

Question 1

Standard of review in substantive due process cases

Answer 1

1. Strict scrutiny (burden of proof on government) if government action infringes fundamental right
   • Law must be least restrictive means to achieve compelling government interest
   o Least restrictive—Cannot be a less restrictive way to achieve interest and law should not be over/under-inclusive
   o Compelling interest—necessary or crucial
2. Rational basis (burden of proof on challenger) in cases when strict or intermediate scrutiny not applicable
   • Law must be rationally related to legitimate state interest (minimal scrutiny)
   • In practice, applied to laws related to lifestyle, taxation, zoning, and punitive damages

Question 2

Fundamental rights

Answer 2

1. Travel
   • From state-to-state or become permanent resident
2. Voting and Ballot Access
   • More significant the government restriction, the greater the degree of scrutiny
3. Privacy
   • Marriage, contraception, intimate sexual behavior, abortion (undue burden test), parental rights, family relations, obscene material, right to refuse medical treatment, and right to avoid disclosure of personal medical information
4. Second Amendment
   • Right to possess a firearm