Wednesday, February 9, 2011

Substantive Due Process & the curious case of Roger Christie

"Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so.

"Supporters of Substantive Due Process...point to its long history and its dynamic ability to defend basic human rights from infringement by the government. They argue that Substantive Due Process provides comprehensive nation-wide protection for all our most cherished rights, which might otherwise be at the mercy of state governments. They argue that the doctrine is a simple recognition that no procedure can be just if it is being used to unjustly deprive a person of his basic human liberties and that the Due Process Clause was intentionally written in broad terms to give the Court flexibility in interpreting it."

Strict scrutiny
From Wikipedia, the free encyclopedia

Strict scrutiny is the most stringent standard of judicial review used by United States courts reviewing federal law. Along with the lower standards of rational basis review and exacting or intermediate scrutiny, strict scrutiny is part of a hierarchy of standards employed by courts to weigh an asserted government interest against a constitutional right or principle that conflicts with the manner in which the interest is being pursued. Strict scrutiny is applied based on the constitutional conflict at issue regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue.
The notion of "levels of judicial scrutiny", including strict scrutiny, was introduced in footnote 4 to United States v. Carolene Products (1938), in the context of the New Deal. Governmental restrictions on constitutional rights that undergo strict scrutiny are most commonly but not invariably found invalid. The first and most notable case to apply strict scrutiny and find the governmental actions valid was Korematsu v. United States (1944), in which the Supreme Court upheld racial-based curfews of Japanese Americans during World War II.

Strict scrutiny arises in two basic contexts: when a "fundamental" constitutional right is infringed[citation needed], particularly those listed in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment; or when the government action involves the use of a "suspect classification" such as race or, sometimes, national origin that may render it void under the Equal Protection Clause. These are the two applications that were anticipated in footnote 4 to United States v. Carolene Products.

To pass strict scrutiny, the law or policy must satisfy three prongs:

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly sixty percent of applications.[1]