Is State Power to Protect Health Compatible with Substantive Due Process Rights? Allan J
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Rational Basis "Plus" Thomas B
University of Minnesota Law School Scholarship Repository Constitutional Commentary 2017 Rational Basis "Plus" Thomas B. Nachbar Follow this and additional works at: https://scholarship.law.umn.edu/concomm Part of the Law Commons Recommended Citation Nachbar, Thomas B., "Rational Basis "Plus"" (2017). Constitutional Commentary. 1094. https://scholarship.law.umn.edu/concomm/1094 This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. NACHBAR_DRAFT 4.DOCX (DO NOT DELETE) 7/13/17 12:45 PM RATIONAL BASIS “PLUS” Thomas B. Nachbar* INTRODUCTION The Supreme Court has asserted the power to review the substance of state and federal law for its reasonableness for almost 200 years.1 Since the mid-1960s, that review has taken the form of the “familiar ‘rational basis’ test,”2 under which the Court will strike a statute if it is not rationally related to a legitimate governmental interest.3 The test is hardly perfect. It lacks, for one thing any textual basis in the Constitution.4 It has been criticized from both ends, as alternatively a judicial usurpation of legislative power5 or “tantamount to no review at all.”6 But the Court has applied it for decades,7 and while the test is not universally loved, neither is it particularly controversial, at least as rules of constitutional law go. If rational basis scrutiny itself is largely uncontroversial, the same cannot be said for so-called “rational basis with bite,” “rational basis with teeth,” or—as I shall call it—“rational basis plus” review.8 Rational basis plus is, as Justice O’Connor * Professor of Law, University of Virginia School of Law. -
The Seventh Circuit's Application of the Substantive Due Process Right Of
SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 FAMILIA INTERRUPTUS: THE SEVENTH CIRCUIT’S APPLICATION OF THE SUBSTANTIVE DUE PROCESS RIGHT OF FAMILIAL RELATIONS ∗ SCOTT J. RICHARD Cite as: Scott J. Richard, Familia Interruptus: The Seventh Circuit’s Application of the Substantive Due Process Right of Familial Relations, 3 SEVENTH CIRCUIT REV. 140 (2007), at http://www.kentlaw.edu/7cr/v3-1/richard.pdf. INTRODUCTION One of the oldest substantive due process rights derived from the Fourteenth Amendment and recognized by the Supreme Court is the right of individuals to be free from government intrusion into the control and management of their families.1 Despite its rhetoric that familial rights are a fundamental liberty interest protected by the Fourteenth Amendment, the Supreme Court’s recognition of this right has been far from clear. Until recently,2 the articulation of this right has been enmeshed in the analysis of other constitutional rights, and even the recent Supreme Court jurisprudence is ambivalent towards this liberty interest, making it difficult to decipher the scope of this right and the appropriate standard to determine when it should be protected. ∗ J.D. candidate, May 2008, Chicago-Kent College of Law, Illinois Institute of Technology; A.M., 2001, University of Chicago; B.A., 1999, Hamilton College. I would like to acknowledge Nikolai G. Guerra and Nicole L. Little for their careful edits of this Note. 1 Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 2 Troxel v. Granville, 530 U.S. 57 (2000). 140 SEVENTH CIRCUIT REVIEW Volume 3, Issue 1 Fall 2007 The Seventh Circuit’s most recent case involving a claim of familial rights, United States v. -
Rationalizing Rational Basis Review
Copyright 2017 by Todd Shaw Printed in U.S.A. Vol. 112, No. 3 RATIONALIZING RATIONAL BASIS REVIEW Todd W. Shaw ABSTRACT—As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review. But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under this “credibility-questioning” rational basis review, courts both ignore post hoc rationales that would legitimate a government interest and scrutinize the fit between the challenged statute’s means and ends. Nevertheless, recent scholarship has overlooked why courts have, and should, engage in credibility-questioning rational basis review, particularly of economic legislation. This Note proposes an answer: Courts should apply credibility- questioning rational basis review to economic legislation that (1) impedes liberty interests central to personhood, (2) burdens politically unpopular minority groups, or (3) benefits concentrated interest groups at the expense of diffuse majorities. AUTHOR—J.D. candidate, Northwestern Pritzker School of Law, 2018; B.A., Oklahoma State University, 2012. For helpful comments and conversation, thanks to Professors Steven G. Calabresi and Leonard S. Rubinowitz, George F. Will, Jentry Lanza, Sheridan Caldwell, Connor Madden, Patrick Sullivan, and Arielle W. -
Obergefell V. Hodges: Same-Sex Marriage Legalized
Obergefell v. Hodges: Same-Sex Marriage Legalized Rodney M. Perry Legislative Attorney August 7, 2015 Congressional Research Service 7-5700 www.crs.gov R44143 Obergefell v. Hodges: Same-Sex Marriage Legalized Summary On June 26, 2015, the Supreme Court issued its decision in Obergefell v. Hodges requiring states to issue marriage licenses to same-sex couples and to recognize same-sex marriages that were legally formed in other states. In doing so, the Court resolved a circuit split regarding the constitutionality of state same-sex marriage bans and legalized same-sex marriage throughout the country. The Court’s decision relied on the Fourteenth Amendment’s equal protection and due process guarantees. Under the Fourteenth Amendment’s Equal Protection Clause, state action that classifies groups of individuals may be subject to heightened levels of judicial scrutiny, depending on the type of classification involved or whether the classification interferes with a fundamental right. Additionally, under the Fourteenth Amendment’s substantive due process guarantees, state action that infringes upon a fundamental right—such as the right to marry—is subject to a high level of judicial scrutiny. In striking down state same-sex marriage bans as unconstitutional in Obergefell, the Court rested its decision upon the fundamental right to marry. The Court acknowledged that its precedents have described the fundamental right to marry in terms of opposite-sex relationships. Even so, the Court determined that the reasons why the right to marry is considered fundamental apply equally to same-sex marriages. The Court thus held that the fundamental right to marry extends to same- sex couples, and that state same-sex marriage bans unconstitutionally interfere with this right. -
Reviving Equal Protection Rites for Religious Drug Use David Garrett
American Indian Law Review Volume 31 | Number 1 1-1-2006 Vine of the Dead: Reviving Equal Protection Rites for Religious Drug Use David Garrett Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons, and the Religion Law Commons Recommended Citation David Garrett, Vine of the Dead: Reviving Equal Protection Rites for Religious Drug Use, 31 Am. Indian L. Rev. 143 (2006), https://digitalcommons.law.ou.edu/ailr/vol31/iss1/6 This Note is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. VINE OF THE DEAD: REVIVING EQUAL PROTECTION RITES FOR RELIGIOUS DRUG USE David Garrett* I. Introduction In 2000, a small religious group from New Mexico filed a motion for preliminary injunction against the government, challenging a ban on the group's use of a hallucinogenic tea imported from Brazil.' The district court granted a preliminary injunction under the Religious Freedom Restoration Act (RFRA).2 The Tenth Circuit affirmed.3 In a unanimous opinion, the Supreme Court also affirmed, and found that the government failed to demonstrate a compelling interest in barring the group's religious use of the hallucinogen.4 The religious group, however, also asserted an equal protection argument, claiming that the group should receive a federal exemption from the Controlled Substances Act5 for the use and importation of their drug, similar to the peyote exemption for the Native American Church.6 The district court wrongly rejected the equal protection claim. -
14Th Amendment US Constitution
FOURTEENTH AMENDMENT RIGHTS GUARANTEED PRIVILEGES AND IMMUNITIES OF CITIZENSHIP, DUE PROCESS AND EQUAL PROTECTION CONTENTS Page Section 1. Rights Guaranteed ................................................................................................... 1565 Citizens of the United States ............................................................................................ 1565 Privileges and Immunities ................................................................................................. 1568 Due Process of Law ............................................................................................................ 1572 The Development of Substantive Due Process .......................................................... 1572 ``Persons'' Defined ................................................................................................. 1578 Police Power Defined and Limited ...................................................................... 1579 ``Liberty'' ................................................................................................................ 1581 Liberty of Contract ...................................................................................................... 1581 Regulatory Labor Laws Generally ...................................................................... 1581 Laws Regulating Hours of Labor ........................................................................ 1586 Laws Regulating Labor in Mines ....................................................................... -
The Constitutional Right to Make Medical Treatment Decisions: a Tale of Two Doctrines
Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2006 The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines B. Jessie Hill Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Constitutional Law Commons, and the Health Law and Policy Commons Repository Citation Hill, B. Jessie, "The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines" (2006). Faculty Publications. 143. https://scholarlycommons.law.case.edu/faculty_publications/143 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. The Constitutional Right to Make Medical Treatment Decisions: A Tale of Two Doctrines B. Jessie Hill* I. Introduction......................................................................................... 279 II. Same Question, Different Answers: Medical Marijuana and “Partial- Birth” Abortion................................................................................... 283 A. Medical Marijuana and Medical Necessity..................................... 283 B. “Partial-Birth” Abortion and the Health Exception ........................ 288 C. Summary........................................................................................ -
Unenumerated Rights
COMPARATIVE CONSTITUTIONAL LAW (U.S./CANADA/AUSTRALIA),2009 ed. 2‐1 CHAPTER TWO: UNENUMERATED RIGHTS KEY CONCEPTS FOR THE CHAPTER ● U.S. COURTS HAVE HELD THAT THE FIFTH AND FOURTEENTH AMENDMENTS’ PROTECTION AGAINST DEPRIVATION OF LIBERTY WITHOUT DUE PROCESS OF LAW HAS TWO COMPONENTS: LIBERTY CANNOT BE DEPRIVED UNLESS CERTAIN PROCEDURES ARE USED BY GOVERNMENT, AND CERTAIN RIGHTS THAT ARE ENCOMPASSED BY “LIBERTY” CANNOT BE DEPRIVED UNLESS THE GOVERNMENT CAN JUSTIFY THE DEPRIVATION. THE LATTER CONCEPT IS KNOWN AS “SUBSTANTIVE DUE PROCESS” ● IN NEITHER CANADA NOR THE U.S. ARE INDIVIDUAL RIGHTS ABSOLUTE. ‐ IN THE U.S., CERTAIN “FUNDAMENTAL” RIGHTS CAN BE LIMITED ONLY IF THE GOVERNMENT PERSUADES JUDGES THAT THERE ARE GOOD REASONS FOR DOING SO; FOR “NON‐FUNDAMENTAL” RIGHTS, COURTS DEFER TO LEGISLATIVE JUDGMENTS UNDER THE SO‐CALLED “RATIONAL BASIS” TEST ‐ IN CANADA, THE CHARTER PROTECTS “FUNDAMENTAL” RIGHTS AND SUBJECTS THEM TO CLOSE SCRUTINY UNDER A 4‐PRONG TEST (THE “OAKES” TEST); NON‐FUNDAMENTAL RIGHTS ARE SIMPLY DEEMED NOT TO BE PROTECTED BY THE CHARTER ● GIVEN THE BREADTH OF THE LANGUAGE OF THE FOURTEENTH AMENDMENT AND S.7 OF THE CANADIAN CHARTER, IDENTIFICATION OF RIGHTS WORTHY OF ACTIVE JUDICIAL PROTECTION IS A MATTER OF JUDICIAL DISCRETION AND JUDGMENT, CONSIDERING THE TEXT, HISTORY, PRECEDENTS, AND ABILITY OF COURTS TO APPLY JUDICIALLY MANAGEABLE STANDARDS ‐ IN PARTICULAR, JUDGES ON BOTH SIDES OF THE BORDER STRUGGLE TO DISTINGUISH THE PROTECTION OF RIGHTS FROM THE DISCREDITED “LOCHNER ERA,” WHICH HISTORY SUGGESTS INVOLVED JUDGES STRIKING DOWN PROGRESSIVE LEGISLATION BECAUSE OF THEIR PERSONAL RIGHT‐WING POLITICAL VIEWS • THE AUSTRALIAN FRAMERS INCORPORATED SEVERAL RIGHTS INTO THE CONSTITUTION, BUT EXPLICITLY REJECTED OPEN‐ENDED CONSTITUTIONAL ENTRENCHMENT OR INDIVIDUAL RIGHTS. -
A Parent's Child and the State's Future Citizen
DEMITCHELL PROOF V5 10/31/2013 12:23 PM A PARENT’S CHILD AND THE STATE’S FUTURE CITIZEN: JUDICIAL AND LEGISLATIVE RESPONSES TO THE TENSION OVER THE RIGHT TO DIRECT AN EDUCATION TODD A. DEMITCHELL & JOSEPH J. ONOSKO† I. INTRODUCTION Who should direct the education of our nation’s youth? This question is important because education is of prime concern to parents and the state. As the United States Supreme Court observed in Meyer v. Nebraska, “The American people have always regarded education and the acquisition of knowledge as matters of supreme importance which should be diligently promoted.”1 Parents have a legitimate and long-recognized primary role in directing the education of their children. The Supreme Court in Troxel v. Granville stated, “[T]he interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”2 In many ways, educating a child is the essence of parenting. In Wisconsin v. Yoder, the Supreme Court asserted, “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now Professor of Education & Lamberton Professor of Justice Studies, University of New Hampshire; B.A., M.A.T., University of La Verne; M.A., University of California at Davis; Ed.D., University of Southern California; Post-Doctorate, Harvard Graduate School of Education. † Associate Professor of Education, University of New Hampshire; B.S., M.A., & Ph.D., University of Wisconsin. -
S:\LAWSON\Library Table\03-10312 Beechy Opinion Granting MSJ.Wpd
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION AMOS BEECHY, ALVIN SLABAUGH, DANIEL MAST, JOHN MAST, AMOS WEAVER, and ALL SIMILARLY SITUATED AMISH PERSONS Plaintiffs, Case Number 03-10312 v. Honorable David M. Lawson CENTRAL MICHIGAN DISTRICT HEALTH DEPARTMENT, CENTRAL MICHIGAN DISTRICT BOARD OF APPEALS, MARY KUSHION, MICHELLE PATTON, ROBERT PATTON, JOHN DOE INDIVIDUALS 1-10, DOE GOVERNMENTAL ENTITIES 1-10, DOE PARTNERSHIPS, CORPORATIONS, FIDUCIARIES, or OTHER ENTITIES 1-10, Defendants. ______________________________________ / OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFFS’ MOTION IN LIMINE The primary issue in this civil rights case is whether a public health ordinance that prescribes the capacity of a septic tank that must be installed on residential property impinges upon the religious freedom of the plaintiffs, who are practitioners of the Old Order Amish faith, and who allege that the minimum capacity required by the law far exceeds that which they would need given their lifestyle. The defendants have moved for summary judgment contending that the record fails to establish that the tank requirement burdens religious practice because the plaintiffs have not shown that the requirement is intertwined with their faith such that First Amendment protection applies or that the requirement does anything more than present secular cost consideration. If the plaintiffs’ objection to the tank regulation is based on a sincerely-held religious belief, then the defendants must come forward with evidence to show that the State’s interest in sanitation and environmental protection is “of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause,” Wisconsin v. -
Strict Judicial Scrutiny
STRICT JUDICIAL SCRUTINY Richard H. Fallon, Jr. The history and practice of strict judicial scrutiny are widely misunderstood. Historically, the modern strict scrutiny formula did not emerge until the 1960s, when it took root simultaneously in a number of doctrinal areas. It did not clearly originate in race discrimination cases, as some have suggested, nor in free speech jurisprudence, as Justice Harlanonce claimed. Although strict scrutiny is widely assumed to be "strict in theory, but fatal in fact," judicial practice in applying it has been complex, even conflicted. There are at least three identifiable versions of strict scrutiny, all subsumed under the same label. The result is uncertainty and sometimes confusion about which version the U.S. Supreme Court will apply in which cases. Some of the confusion arises from the strict scrutiny test's vague and ambiguous terms, which leave critical questions unanswered. Seeking answers to those questions through normative rather than doctrinal inquiry, this Article argues that the strict scrutiny test isbest understoodas mandatinga proportionalityinquiry. At least when challenged regulations would at best reduce risks or incidences of harm, rather than extirpate them completely, courts applying strict scrutiny must ask whether the benefits justify the costs in light of regulatory alternatives that would trench less deeply on constitutionalrights but also be less effective in promoting their goals. INT RO DU CT ION ................................................................................................................. -
Substantive Due Process
Touro Law Review Volume 15 Number 4 Article 15 1999 Substantive Due Process Erwin Chemerinsky Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview Part of the Law Commons Recommended Citation Chemerinsky, Erwin (1999) "Substantive Due Process," Touro Law Review: Vol. 15 : No. 4 , Article 15. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol15/iss4/15 This Selected Excerpts: Practising Law Institute's Annual Section 1983 Civil Rights Litigation Program is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. For more information, please contact [email protected]. Chemerinsky: Substantive Due Process SUBSTANTIVE DUE PROCESS Erwin ChemerInsky* Honorable George C. Pratt: Professor Erwin Chemerinsky is one of the leading scholars on constitutional law. We are delighted to have you here. Erwin, you have the floor. ProfessorErwin Chemeinsky: There is no concept in American law that is more elusive or more controversial than substantive due process. Substantive due process has been used in this century to protect some of our most precious liberties. Still, there are now and have always been Justices of the Supreme Court who believe there is no such thing as substantive due process. During my time this morning, I would like to address four questions. First, what is substantive due process? Second, what is the history of substantive due process? Third, when does substantive due process apply and fourth, what are the elements of a substantive due process claim? I start briefly with the first question, what is substantive due process, because, strangely enough, if you look through Supreme Couit opinions you will never find a definition.