Understanding Fundamental Rights & Substantive Due Process: Voting & Privacy Implications | Study notes Political Science

Chapter 11– Fundamental Rights and Substantive Due Process

Substantive Due Process:

What is “substantive Due process”?: Remember, the 14th amendment says “no state” shall take “life,

liberty or property” without “Due process “of law. In the 1920s, the Court begins to say that the word

“liberty” means more than just physical liberty [i.e, freedom/liberty to “contract”] and that the “Due

Process” owed to citizens when the government takes away such a liberty is more than just a thin, minimal

procedure. Rather, “Due Process” guarantees “substantive rights” and prevents state from interfering and

otherwise affecting those rights. When these substantive rights (i.e, fundamental rights) and corresponding

liberties are violated, certain constitutional “tests” are employed to determine the constitutionality of the

state’s actions. To find out which “liberties” are substantively guaranteed, the court asks whether such a

right that is affected/restricted by the state is “fundamental.” We now ask, what are “fundamental rights?”

General information on “Fundamental Rights” :

1. These rights are not explicitly listed in the constitution. The debate centers around the connection

between what rights, if any, the Due Process clause, protects from state interference. Some hold that Due

Process “stands on its own” and may offer few, if any, protections that are likewise found in the Bill of

rights. Other asserts that these “fundamental” rights be at least tied to the explicit language or at least

implied from the protections listed in the Bill of Rights. Some say no connection is needed to protect such

rights that are implicit in the concept of ordered liberty. Obviously, the notion of “fundamental rights”

leads to the arguable notion that justices/judges are given a great degree of latitude and authority in

deciding what rights are indeed “fundamental. [See Brief 11.4, page 303 in the text]

2. Standard for review: [similar to the scheme employed for Equal Protection cases]

a. If a law burdens or otherwise affects a “fundamental right”, the Court then will analyze the law under

the very demanding Strict Scrutiny test [which is very hard for the Government to meet]. If the law does

not impinge or restrict a right that is “fundamental”, the government law is merely analyzed under the

rational scrutiny and will likely be upheld.

3. Examples of Fundamental Rights:

a. Right to Privacy [Griswold v. Connecticut, Eisenstandt v. Baird, Roe v. Wade, Casey]

b. Right to Vote [Reynolds v. Sims, Harper, Kramer, Dunn]

c. Right to Interstate Travel [Shapiro v. Thompson]

I. Constitutional Development of the “right to vote” as “fundamental”

General: States have the constitutional ability to determine voter qualifications for federal elections

[unless overridden by Congress – federal elections only], in Article I, section 2. The Constitution does

NOT explicitly limit a state’s ability to determine voter requirements for state elections. Any such

limitations have been interpreted by the Court by use of the 14th amendment’s equal Protection and/or Due

Process clauses. Generally, a state can determine and/or restrict voting qualifications and/or rights in the

area of 1) age [reasonable], 2) citizenship and residence.

A. Legislative Apportionment / Voting Districts [see pg. 302-303]

1. Reynolds v. Sims (1964) [Using Equal Protection Clause/Strict Scrutiny] One person, One vote,

voting districts must be roughly equal in population.

Alabama law had state electoral districts in place since 1901 which, in 1964, with very substantial

differences in the number of voters in each district which made it theoretically possible for 25% of the

state’s population to elect a majority in the state senate. The Court declared the apportionment

unconstitutional and established the principle of “one person, one vote”, determining that voting districts

must be roughly equal.

B. Equal Access to Voting [see page 304]

1. Harper v. Virginia State Board of Elections (1966) – Poll Taxes in State Elections Unconstitutional.

The court struck down a Virginia poll tax of $1.50 as a condition for voting in state elections annually.

The Court found little connection between wealth and/or the ability to pay and the ability to intelligently

participate in the electoral process. [note: Wealth by ITSELF, without effect on the voting, is not a “strict

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Chapter 11– Fundamental Rights and Substantive Due Process

Substantive Due Process:

What is “substantive Due process”? : Remember, the 14th^ amendment says “no state” shall take “life, liberty or property” without “Due process “of law. In the 1920s, the Court begins to say that the word “liberty” means more than just physical liberty [i.e, freedom/liberty to “contract”] and that the “Due Process” owed to citizens when the government takes away such a liberty is more than just a thin, minimal procedure. Rather, “Due Process” guarantees “substantive rights” and prevents state from interfering and otherwise affecting those rights. When these substantive rights (i.e, fundamental rights) and corresponding liberties are violated, certain constitutional “tests” are employed to determine the constitutionality of the state’s actions. To find out which “liberties” are substantively guaranteed, the court asks whether such a right that is affected/restricted by the state is “fundamental.” We now ask, what are “fundamental rights?”

General information on “Fundamental Rights” :

These rights are not explicitly listed in the constitution. The debate centers around the connection between what rights, if any, the Due Process clause, protects from state interference. Some hold that Due Process “stands on its own” and may offer few, if any, protections that are likewise found in the Bill of rights. Other asserts that these “fundamental” rights be at least tied to the explicit language or at least implied from the protections listed in the Bill of Rights. Some say no connection is needed to protect such rights that are implicit in the concept of ordered liberty. Obviously, the notion of “fundamental rights” leads to the arguable notion that justices/judges are given a great degree of latitude and authority in deciding what rights are indeed “fundamental. [See Brief 11.4, page 303 in the text]
Standard for review : [similar to the scheme employed for Equal Protection cases] a. If a law burdens or otherwise affects a “fundamental right”, the Court then will analyze the law under the very demanding Strict Scrutiny test [which is very hard for the Government to meet]. If the law does not impinge or restrict a right that is “fundamental”, the government law is merely analyzed under the rational scrutiny and will likely be upheld. 3. Examples of Fundamental Rights : a. Right to Privacy [Griswold v. Connecticut, Eisenstandt v. Baird, Roe v. Wade, Casey] b. Right to Vote [Reynolds v. Sims, Harper, Kramer, Dunn] c. Right to Interstate Travel [Shapiro v. Thompson]

I. Constitutional Development of the “right to vote” as “fundamental”

General : States have the constitutional ability to determine voter qualifications for federal e lections

[unless overridden by Congress – federal elections only], in Article I, section 2. The Constitution does NOT explicitly limit a state’s ability to determine voter requirements for state elections. Any such limitations have been interpreted by the Court by use of the 14th^ amendment’s equal Protection and/or Due Process clauses. Generally, a state can determine and/or restrict voting qualifications and/or rights in the area of 1) age [reasonable], 2) citizenship and residence.

A. Legislative Apportionment / Voting Districts [see pg. 302-303]

1****. Reynolds v. Sims (1964) [Using Equal Protection Clause/Strict Scrutiny] One person, One vote , voting districts must be roughly equal in population. Alabama law had state electoral districts in place since 1901 which, in 1964, with very substantial differences in the number of voters in each district which made it theoretically possible for 25% of the state’s population to elect a majority in the state senate. The Court declared the apportionment unconstitutional and established the principle of “one person, one vote”, determining that voting districts must be roughly equal.

B. Equal Access to Voting [see page 304]

1. Harper v. Virginia State Board of Elections (1966) – Poll Taxes in State Elections Unconstitutional. The court struck down a Virginia poll tax of $1.50 as a condition for voting in state elections annually. The Court found little connection between wealth and/or the ability to pay and the ability to intelligently participate in the electoral process. [note: Wealth by ITSELF, without effect on the voting, is not a “strict

scrutiny” category. Also, the 24th^ amendment to the US Constitution had prohibited poll taxes in FEDERAL elections – the case above deals with STATE elections. ]

2. Kramer v. Union Free School District No. 15 (1969): The ballot cannot be restrict to “interested voters” or general and non-special purpose elections The Court struck down a NY statute which limited school district elections to persons who 1) owned or leased property within the district, 2) or were parents of children in the district’s public schools. The Court said such a statute was not sufficiently tailored to the goal of limiting the ballot to those “primarily interested” in school affairs. 3****. Dunn v. Blumstein (1972) : Extended Duration of residence requirements to vote are “unreasonable” [30-50 day requirements have upheld by the Court] The Court struck down a Tennessee law which restricted the ballot to Tennessee residents who had resided in the state for at least one year in the state and three months in the county. [Also, struck down the under the “Right to Travel” rationale]. 4. Richardson v. Ramirez (1974): States can deny right to vote to felons – even those who have finished their sentence and/or their parole requirements. [also, see brief 11.5, page 305] The Court found that a California law placing restrictions on the voting rights of felons was not even subject to strict scrutiny because section 2 of the 14th^ amendment allows a state to abridge voting rights for those state citizens that have participated “in rebellion, or other crime.” 5. Bush v. Gore (2000): States cannot arbitrarily accept/reject ballots and must institute uniform counting procedures in a timely manner in order for Congress to certify and determine the legitimacy of the presidential election. 6. Crawford v. Marion County Election Board (2008): States can require current ID to vote The Court upheld an Indiana statute which required all citizens to show current state or federal identification in order to cast a ballot, declaring this condition not to be an unconstitutional burden. **Equal Access to the Ballot by candidates/third parties not covered on this handout II. Constitutional Development of the “Right to Interstate Travel” 1. Shapiro v. Thompson (1969): States cannot treat “newly-arrived” citizens different from other citizens when determining eligibility for welfare programs. The Court struck down a Connecticut law which had required that citizens reside in the state one year before they were eligible for state aid under the Aid-to-Families-with- Dependent-Children program. The Court found the state’s interest in preserving scarce resources and preventing fraudulent collection of welfare payments as not “compelling” enough to justify the possible restriction on state-to-state travel and freedom of interstate migration. For the Court, the state had created to classes of needy people that could not be distinguished from one another. III. Constitutional Development of the “Fundamental Right” to Privacy. Griswold v. Connecticut (1965): Privacy is a Fundamental Right A Connecticut law made it a criminal offense to aid or counsel anyone in the use of contraceptives. The director of the local Planned Parenthood was convicted of counseling married persons in the use of birth control devices. No users of the devices were actually charged in this case. The Court finds that the Right to Privacy (here, the right to be counseled in the use of contraceptives), although not expressly listed among the Bill of Rights, emanates and can be abstracted/implied from certain other provisions in the Bill of Rights – namely the “penumbras” of the 1st, 3rd, 4th, 5th^ and 9th^ amendments. The Court claims that the state’s law detrimentally impacts and inheres in the marital zone of privacy. Because the law impinged upon this fundamental right, the law was struck down. Eisenstandt v. Baird (1972): Extension of Right to Privacy to individuals The Court found unconstitutional a Massachussets law which permitted contraceptives to be distributed by registered physicians and pharmacists, and only to married individuals. The Court found that the Right to Privacy not only inhered in the marital relationship but was the right of the individual to be free form unwarranted governmental intrusion into reproductive matters concerning the use of contraceptives.

Understanding Fundamental Rights & Substantive Due Process: Voting & Privacy Implications , Study notes of Political Science

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Download Understanding Fundamental Rights & Substantive Due Process: Voting & Privacy Implications and more Study notes Political Science in PDF only on Docsity!

Chapter 11– Fundamental Rights and Substantive Due Process

Substantive Due Process:

General information on “Fundamental Rights” :

I. Constitutional Development of the “right to vote” as “fundamental”

General : States have the constitutional ability to determine voter qualifications for federal e lections

A. Legislative Apportionment / Voting Districts [see pg. 302-303]

B. Equal Access to Voting [see page 304]