Substantive Due Process – Fundamental Rights

Terms:

Due Process Clause:

The Fourteenth Amendment reads, in part, that no state shall “deprive any person of life, liberty, or property, without due process of law.” This applies to the states and to local governments. The Due Process Clause of the Fifth Amendment applies to the federal government. Most Due Process issues involve state laws.
Common-Law:
The two sources of law are statutory law and common law. The common law is that body of rules and principles developed through the courts over time. While legislatures often overrule an area of common law by enacting a statute, and while courts often overrule an area of common law by refusing to follow it further or by handing down a decision which makes use of a competing principle, the common law carries with it the force of law and is generally binding on courts within that jurisdiction.
Burden of Proof:
In every case one party or another has the onus of demonstrating the truth of some fact or another. The party who must so demonstrate is said to have the burden of proof. In addition to who carries the burden, the burden can be of different loads. For example, in a criminal case the prosecution carries the burden of proof and must prove every element of the crime “beyond a reasonable doubt.” In most civil cases the plaintiff generally carries the burden of proof but must prove every element of her claim only by “a preponderance of the evidence,” which is far short of “beyond a reasonable doubt.”

Every Due Process Clause analysis begins with the question “Has the government deprived some person of life, liberty, or property?” If there has been no government action, or if there has been no deprivation, then there cannot be a Due Process issue; substantive or procedural.

Substantive Due Process issues involve the states’ power to regulate certain activities.

Procedural Due Process issues involve an analysis of the procedure required by the Constitution when states seek to deprive people of life, liberty or property. (Procedural Due Process will be addressed in Subchapter 3.)

EXAMPLE: Western State passes a law forbidding individuals from using nail clippers to cut their nails and requiring instead that only scissors be used. Because the state is seeking to regulate individuals in a way which affects their liberty, the law will be subject to Due Process review.

EXAMPLE: Eastern State enacts a statute requiring all individuals who own cars manufactured prior to 1990 pay a “collector’s” tax. The tax is a deprivation of property, i.e., the money paid, and must pass Due Process review.