If you caught Substantive Due Process, Part 1, you may recall that substantive due process of law protects individual rights. More specifically, and for purposes of our discussion, it safeguards “liberty” interests. Some of these liberty interests are so important that we call them fundamental rights. Fundamental rights are those liberty interests that the Supreme Court has identified as being deeply rooted in our nation’s history and traditions. The list is short, but those interests that have made the cut – including rights like marriage and procreation – are undeniably important.
Today, we begin the task of creating a substantive due process analytical model. It sounds complicated, but the idea is simple. When confronted with a substantive due process issue, how do you analyze that issue? The answer is that you use an analytical model – a series of steps that lets you isolate and analyze the key questions courts will examine when confronted with a problem like this. Before we can build that model, we must learn the basic legal rules and some of the foundational ideas that are in play. That’s what we’ll cover today.
When a court reviews a law for constitutionality, the court is usually concerned with two things: the ends or interests that the government is trying to achieve, and the means the government chooses to achieve those ends or interests. So, for example, your state might decide – as it has – that it has an interest in minimizing traffic injuries and deaths. From a constitutional standpoint, courts have found such an interest to be perfectly legitimate. Indeed, courts have called the government’s interest in reducing traffic injuries and deaths a compelling interest. Protecting public safety is one of the most important reasons we have governments in the first place.
Now, what means might the government choose to meet that interest? The possibilities are limitless. On the most extreme end of the spectrum, the government might pass a law banning all motor vehicle traffic. That would certainly achieve the interest in minimizing traffic injuries and deaths, but at what cost? Society as we know it, so dependent on motor vehicle transportation, would collapse. Alternatively, the government might create regulations mandating that all motor vehicles must be designed to withstand an 80 mile-per-hour frontal impact with no or only minor injuries. Vehicles like that could be engineered and built, but they’d cost $200,000 apiece.
So the government looks for less restrictive means of accomplishing its ends. Highway safety regulations do govern vehicle design and production standards. Speed limit laws are intended to reduce accidents, injuries and fatalities to the greatest extent practicable. The system is far from perfect, but when lawmakers create these kinds of policies, they often must balance competing demands. Saving lives, engineering reasonably safe cars and trucks, preserving interstate commerce, and encouraging interstate travel are just a few of the interests governments must balance. As a result, the means they choose to accomplish various ends may not always be the most efficient or effective means available. But as we will see, the role of courts isn’t to act as a super-legislature, passing on the wisdom or effectiveness of laws. The role of courts is to make sure that those laws are consistent with constitutional demands.
When you think about substantive due process specifically, or constitutional review more broadly, you should be thinking in terms of government interests and the means chosen to meet those interests. Both are key to the analysis, and there are legal buzzwords associated with ends and means that you will need to be familiar with in order to understand what’s going on.
Finally, before we get to the model, let’s begin with a sort of mental shortcut. Keep this in mind for future reference as we work through building the substantive due process model. On substantive due process review, the case is most likely to follow one of two analytical paths. As we will see, the vast majority of all laws, regulations, and government actions are decided using the very permissive rational basis standard. In a nutshell, the government wins on rational basis review as long as the law, regulation, or action rationally relates to meeting some legitimate government interest. Note, importantly, that the person challenging the law bears the burden of proving either or both of the following: first, that the government had no legitimate interest to justify the law; or second, that the means the government chose do not rationally relate to meeting some legitimate interest.
As suggested above, this standard is a very forgiving one for the government. Indeed, on rational basis review, the outcome is usually preordained: the government wins. Why? The answer is grounded in our basic ideas of governance and separation of powers. Politicians make laws; that isn’t a job for judges. Courts review laws and actions to make sure they are consistent with constitutional or other legal demands. In order for government to work, courts must give political actors a great deal of leeway to take care of the business of government.
Stated more succinctly, if it is too easy for courts to overturn enacted laws, the wheels of society will quickly grind to a halt. So it is the rule that for the overwhelming majority of laws and government actions, mere rationality is all that is required. Just how permissive a standard is this? Laws that need only satisfy this rational basis standard are presumed constitutional, meaning the government wins unless the challenger carries the burden of proving that the law is unconstitutional. And on rational basis review, that’s next to impossible.
The second analytical path gets followed far less often. Laws or regulations that substantially impair the exercise of fundamental rights must satisfy the very demanding strict scrutiny standard. On strict scrutiny review, the government must prove that it has a compelling interest to justify the law, and it must also show that it has selected the least discriminatory means of achieving that compelling interest. If strict scrutiny is the standard, courts do not presume that the law is constitutional. Instead, the government will be put to its proof, and must convince the court that it satisfies this very high standard.
How demanding is the standard? There’s a saying in the law – strict scrutiny is “strict in theory, and fatal in fact.” This is a tongue-in-cheek way of saying that on strict scrutiny review, the government is probably going to lose. Why do we make this standard so difficult to meet? Because it only gets applied, in the substantive due process context anyway, to laws that impair the exercise of fundamental rights. We want it to be hard for the government to interfere with these important rights, precisely because they are so important.
As we build our analytical model, keep this basic distinction in mind: liberty interests get rational basis review; fundamental rights get strict scrutiny. That is, if the government is interfering with your exercise of some garden-variety liberty interest (say, your interest in being able to drive a red Chevy Camaro), the government need only satisfy the relatively low threshold of rationality. But if the government presumes to tell you what consenting adult you’re allowed to marry? Well, that’s going to demand that the authorities meet the tough strict scrutiny standard. Once we get past basic issues of public health (justifying, for example, tests to rule out sexually transmitted diseases) and public welfare (laws establishing the age of consent for marriage, for example), the government doesn’t have any business telling you who you can marry.
That’s where we’ll leave off today. With these basic rules and concepts, tomorrow we can build our model. As you can probably tell, building an analytical model is a process. Part of what we’re doing here, beyond just building a model, is learning that process. Once you are comfortable with that process, you’ll find that you can do it for nearly any legal topic, so long as you’ve got the basic rules and issues down. More on that tomorrow.