Constitutional Law: Substantive Due Process vs. Equal Protection

Let's assume you're given a 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 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. If the law does not burden the exercise of a fundamental right, rational basis scrutiny will apply. 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 so that you can determine which level of scrutiny to apply.

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 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 analysis is similar to substantive due process analysis, but there are some key differences. An equal protection analysis is triggered when people similarly situated are treated differently (ie, classified). In other words, equal protection review applies when a 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 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 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 challenged law 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.