Tuesday, August 9, 2011

Constitutional Law: Substative Due Process vs. Equal Protection

Let's assume you're given a state law, and asked to determine whether the law is constitutional. It's possible that in making this determination, you will need to apply either an equal protection analysis, or a substantive due process analysis. Distinguishing between the two can be difficult, and will be the subject of this note.

I. Substantive Due Process:

Substantive due process analysis applies when a state law affects fundamental rights, and, unlike in equal protection analysis, the law does not classify among people. In other words, the law affects all people, rather than a specific classification of people. When a law burdens the exercise of fundamental rights, the Court will apply strict scrutiny in determining whether that law is constitutional. Strict scrutiny requires that if a law is going to regulate fundamental rights, the government must prove that the law is necessary to further a compelling government interest. This is an extremely tough burden for the government to meet, and as such, many laws regulating fundamental rights are struck down as unconstitutional. The next step in a substantive due process analysis is to determine whether a fundamental right is at issue.

A: Fundamental Rights:

The fundamental rights under a substantive due process analysis are as follows: the right to vote; the right to travel; the right to privacy; and 1st Amendment rights. In an exam (essay or multiple choice), examine the state law, determine whether one of the preceding four rights has been regulated, and if so, understand that the law is constitutional only if it passes a strict scrutiny analysis.

II: Equal Protection

Equal Protection under the 14th Amendment, like substantive due process, applies to state law. An equal protection analysis is triggered when people similarly situated are treated differently (ie, classified). In other words, equal protection review applies when a state law affects the rights of only some people with respect to a specific activity.

Recall from the discussion of substantive due process, strict scrutiny is applied to state laws affecting fundamental rights. The same is true with equal protection. If the fundamental rights of only some people are regulated, an equal protection analysis is appropriate. In addition, if a suspect classification is created by the law, strict scrutiny applies, as well.

A: Suspect Classifications

The suspect classifications that will trigger an equal protection analysis are race, national original and alienage. For example, in regards to race, a state law that prohibits inter-racial marriage will be found to be constitutional only if it passes strict scrutiny. You'll want to note that in regards to alienage, though it is a suspect classification, states may discriminate against aliens where participation in the functioning of government is involved. A lower level of scrutiny will be applied, and the law is less likely to be found unconstitutional (for example, a statute preventing aliens from working as police officers is likely to be upheld).

B: Quasi-Suspect Classifications

If a classification is not based on race, alienage, or national original, but instead classifies based on gender or legitimacy, then the classifications is deemed quasi-suspect, and intermediate scrutiny is applied. Under this standard, the law will be deemed unconstitutional unless the government can prove that the law is substantially related to an important government interest. This lower level of scrutiny makes it more likely that the law will be upheld, but is still a difficult burden for the government to overcome.


C: Neither Suspect nor Quasi-Suspect Classifications:

Finally, if none of the above classifications are at issue, but the law does classify people based on a given standard, then rational basis scrutiny is applied. Under the rational basis standard of review, the burden is now on the plaintiff to show that the state law being challenged is not rationally related to any legitimate interest. This is a minimal standard, merely requiring that the law at issue is not arbitrary or unreasonable. The standard is so low that nearly all laws scrutinized under a rational basis standard of review will be upheld. Some examples of classifications in which rational basis review will be applied are: age; poverty; wealth; and mental retardation.


20 comments:

  1. Thank you for the explanation. Your answer indicates that SDP applies to first amendment rights under a strict scrutiny analysis, but does not apply to non-fundamental rights. However, my bar reivew states that SDP also applies to all non-fundamental rights on a rational basis. I am confused. Can you please confirm?

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    1. Yes, SDP applies to fundamental and non-fundamental rights...Non-fundamental rights are those rights not guaranteed by the Constitution. Such a right includes the right to receive welfare benefits

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  2. If no fundamental rights are involved, then you apply rational basis scrutiny. This is a bit easier than equal protection, as there are only two categories to remember, fundamental rights (which require strict), and non fundamental rights (which require rational basis).

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  3. an excellent summary

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  4. Clear and concise. Thank you.

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  5. I have here in my out line, "Facially discriminatory laws are subject to strict scrutiny." (Korematsu case).

    Which brings me to my question: what if the law is facially discriminatory, but not necessarily against a suspect class? (i.e. No unsupervised minor can be in public after 10 PM). Here, there is no suspect class but the law is still facially discriminatory against minors.
    So would this law be subject to strict scrutiny? I'm pretty sure it's only subject to rational basis review but there seems to be a doctrinal conflict.

    Thank you, any advise would help.

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  6. The outlines can get a bit confusing in that respect. What is meant is that if the discrimination is against a class (such as a suspect class, as you've said) then facial discrimination will suffice for strict scrutiny. The reason it's brought up is because although facial discrimination is sufficient, it's not necessary. If the law results in discrimination, even if not facially discriminating, then, assuming it's a suspect class, strict scrutiny will apply.

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    1. So when you say "it's sufficient" then would this hypothetical law be subject to strict scrutiny?
      "No unsupervised minor can be in public after 10 PM"

      The law is facially discriminatory because there's a differential treatment of minors and non-minors.

      This is what confuses me, it seems unreasonable to subject the above law to a strict scrutiny review because it discriminates against those under the age of 18 (minor's are a non-suspect class) and should therefore, be subject to rational basis review.

      But when you say it's sufficient for a law to be facially discriminatory to trigger strict scrutiny, do you mean that the above law must survive strict scrutiny in-order to be valid?

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  7. That particular law would be subject only to rational basis scrutiny because it doesn't implicate a suspect class (for strict scrutiny) or a quasi-suspect class (for intermediate scrutiny).

    What I mean to say is that if you have a law that does in fact discriminate against a suspect or quasi-suspect class, it'll be sufficient that the law is discriminatory on its face, though not necessary, because even if the law does not discriminate on its face, strict or intermediate will apply if the law is likely to cause discrimination as a result.

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    1. Hello sir, thanks for your sage advice on everything.

      My question is in regards to laws that are NOT facially discriminative. My understanding is that the court must then find the law has BOTH a discriminatory impact AND a discriminatory intent in order to receive strict/quasi-strict scrutiny analysis. Otherwise rational basis scrutiny will be applied.

      Your statement above seems to indicate discriminatory impact to a suspect/quasi-suspect class is sufficient...

      THANKS!

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    2. You are correct; a discriminatory effect alone is not enough! A motive (or intent) to discriminate is required....

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  8. Thanks for this - nice summary!

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  9. Are the fundamental rights for SDP and EP the same rights? If not, which ones are different?

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  10. When analyzing the fundamental rights under Equal Protection, the same rights apply as in Substantive Due Process. But recall that with Equal Protection you also must consider the various classifications.

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  11. I get confused with the fundamental right and class distinction. What happens, for example, if a law doesn't implicate a fundamental right, but still classifies people? Would you still do an equal protection analysis? In other words, EP comes into play in two scenarios: 1) fundamental right with respect to certain people, and 2) classification (whether or not a fundamental right is implicated) ?

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    1. Absolutely, you should analyze EP even if no fundamental right is implicated in the classification. Fundamental rights merely indicate that you'll need to analyze under the strict scrutiny definition. But other classifications may arise which require an analysis under intermediate or rational basis scrutiny.

      in short, suspect classifications and classifications based on fundamental rights require strict scrutiny, but other classifications do still apply.

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  12. I am a bit confused as far as how to analyze a law (under EP) which implicates a fundamental right and discriminates against a suspect or quasi-suspect class (e.g. "women are not allowed to travel") -- this raises a quasi-suspect classification issue ("women"), which would be analyzed under intermediate scrutiny; however, it also involves the fundamental right to travel, which requires a strict scrutiny analysis.

    My question thus is: how would you analyze this type of law under EP? Would the level of scrutiny be based on the classification or on the fundamental right? Or do you always apply strict scrutiny whenever a fundamental right is involved (no matter what type of classification)?

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    1. It's a good question, and I think I've seen such things in the practice questions. If something violates middle level scrutiny it certainly violates strict scrutiny, but not all things that violate strict scrutiny violate middle level scrutiny. So the correct approach would be to analyze the strictest level first. In other words, you would have to analyze the fundamental right to travel if that right were implicated by the fact pattern. And it's correct that if a fundamental right is at issue you must analyze it under strict scrutiny regardless of the level of scrutiny that would be analyzed by the classification.

      One thing about the MBE is that there has to be one definite correct answer and 3 definite incorrect answers, so you won't see too much ambiguity. But I can imagine having to dig deep into this kind of analysis on an essay.

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  13. Thank you for this. Saving lives.

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  14. Certainly the most popular post on the blog! :-)

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