We’re in the process of building a substantive due process analytical model. Our first two posts have laid the groundwork for that. We’ve learned about liberty interests and fundamental rights, and we’ve also had a chance to review the standards of review for each. Liberty interests, as a rule, get rational basis review; fundamental rights get strict scrutiny. The former standard heavily favors the government, while the latter is concerned with safeguarding the fundamental right. Now, we’ve got everything we need to build our model. Here we go!
Our basic substantive due process model comes in four parts. As you’ll see, these are intended to work much like a decision tree – answer yes, and you go in one direction; answer no, and you go the opposite direction. We’ll state and discuss each step of the analysis separately.
First, does the government law, regulation, or practice implicate a fundamental right?
Recall the basic distinction between garden-variety liberty interests and fundamental rights. Unless it is prohibited by law, you are at liberty to live your life as you see fit. Where you live, what you do for a living, the hobbies you pursue, what food you like to eat – these are all examples of liberty interests, and the Constitution recognizes your freedom, your liberty, to make those choices. But the Supreme Court has identified a handful of liberty interests that we hold to be especially important. Marriage, procreation, child-rearing, and intimate living arrangements are the best known examples of unenumerated fundamental rights. The term “fundamental rights” is just shorthand for those liberty interests that are deeply rooted in our history and traditions, and that have enjoyed special legal protections over time.
If we conclude that a fundamental right is involved – which is to say, we conclude that we’re dealing with a liberty interest that is deeply rooted in our history and traditions – then we continue to the next step in the model. But if we decide that there is a mere liberty interest but no fundamental right at stake, simply go straight to rational basis review. The law, regulation, or practice survives as long as it is rational. Remember that laws that get rational basis review are presumed constitutional, so the government walks into court a winner. The challenger must prove that there is no legitimate government interest to justify the law, or that the law – the means – don’t rationally relate to achieving a legitimate interest. Most often, the government wins.
Second, does the government’s law, regulation, or action substantially impair the exercise of that fundamental right?
It is important to note that fundamental rights are not completely beyond the reach of government regulations. We’ve hinted at this already. The right to marry is fundamental, but government regulations that touch upon the right to marry may be allowed. At this point in the model, what we’re really asking is whether the government’s interference with a fundamental right is deliberate and substantial, or merely incidental to some other regulatory aim.
Here’s a common example. Government welfare and benefit programs often define eligibility for differing benefit levels based on marital status. So, for example, suppose the State of Beta enacts a benefit law that says “Married persons are entitled to a maximum monthly benefit of $400, but unmarried persons are entitled to a maximum monthly benefit of $440.” Does this sort of law substantially impair the fundamental right to marry? No. Beta is trying to create and administer a complex public benefit scheme, one that must balance countless policy considerations. Married couples, for instance, can be expected to have greater earning power than a single person. That, not a desire to discourage people from marrying, is what is likely behind the disparate benefit levels.
Yes, this law does touch upon the marriage right, but Beta’s lawmakers weren’t aiming at that right when they made the law. They were trying to put together a complex program with limited resources, and they incidentally touched upon the right to marry. An incidental burden does not amount to a substantial impairment of the right to marry.
If we conclude that there is a substantial impairment of whatever fundamental right is at issue, then we continue with the model. But if we say no, this looks like an incidental burden and not a direct, substantial impairment of the right, then again, skip directly to rational basis review. That analysis is the same as in our first step, above.
Third, does the government have a compelling interest to justify its law, regulation, or action?
At this point, we’ve established that there is a fundamental right involved, and the government has done something to substantially impair its exercise. With this third step – and the fourth step to follow – what we’re trying to decide is whether the government can justify what it has done in order to avoid liability for a due process violation.
The government must prove that it has a compelling interest to justify its law, regulation, or action. Unfortunately, the Supreme Court has done little to define, or to establish the criteria for, what makes an interest compelling. Instead of a bright line rule, this is more of a fuzzy “we know it when we see it” kind of standard. Some compelling interests are easier to identify than others. Protecting life? Sure, that’s a compelling interest. Protecting children from harm? What court would ever say no? In some cases, it’s an easy call.
Here’s how this sometimes plays out. A state appears in court to defend a law, and it argues that it has a compelling interest in [fill in the blank here with something that sounds reasonably important]. Courts often are reluctant to second guess states when they offer justifications for their policy choices. So sometimes, a court will say something like “The State has offered [whatever] as a compelling interest to justify this law. The Court is willing to accept that proffered interest as sufficient for purposes of its analysis, without actually deciding the question of sufficiency.”
Why might a court do this? Because as we will see, on strict scrutiny, most laws die not at step 3, but at step 4. There’s usually no need to actually decide whether a proffered interest is compelling, because the dirty work comes not here, but at the final step.
If the court decides that the government’s interest is compelling, we continue to the fourth and final step. But if the court finds no compelling interest to justify what the government has done, then the analysis comes to an end. The lack of a compelling interest means the government is liable for a substantive due process violation.
Fourth, has the government used the least restrictive means to achieve its compelling interest?
Remember that if we get to this final step, it means the court was satisfied with whatever compelling interest the government offered up. Having thus satisfied itself as to the government’s ends, the court now turns its attention to the government’s means. How restrictive is this law, regulation, or practice insofar as this fundamental right is concerned? Courts require that government must choose the least restrictive means that will satisfy its compelling interest. Stated a bit differently, if the government could have adopted some means less restrictive of the fundamental right to achieve its compelling interest, the government must do so.
A couple of points deserve mention here. First, least restrictive does mean least restrictive. If a court finds that there are less restrictive ways that the government could have gone about its business – and that’s a much easier task than deciding whether the government’s interest is “compelling” – then the government is dead in the water. Unless the government can convince the court that it considered but rejected less restrictive means, the government will lose.
But that leads us to our last point. The government isn’t required to spend huge sums of money or otherwise devote substantial resources to inventing newer, less restrictive means. That is, the means from which the government might choose must be means that are reasonably available to the government. If no such means can be identified, then the government wins. As we’ve already noted, however, the government almost always loses on strict scrutiny. Which should tell you something about the utility of this fourth and final factor.
So there it is: your basic, substantive due process analytical model. Take it out for a spin and have some fun with it. Find news stories on the Web involving the government restricting some conduct; run the facts through the model and see what happens. Even if you don’t do it correctly, you’re still learning, right? By the way, if you’re interested, we’ve included a link below to the analytical model in PowerPoint format. If you don’t have PowerPoint, you can download the Open Office version of that program. A quick Google search should lead you to it, and last time I checked, it was free. This may come in handy later, because from time-to-time we’ll put up PowerPoint slides that accompany our posts.
In our next installment, we’ll do a quick example, and we’ll clean things up with a few additional points.