another law question: due process vs equal protection

crosvs · #1 12-13-2006, 01:17 AM

Hey, can anyone tell me whether this sounds right? I'm trying to pre-write my rule statements for the con law i final for substantive and procedural due process, and equal protection; my study group and i have been having a bang-up time trying to understand when a case presents an issue of due process (and then what kind of due process?!) or equal protection. That case law suggests it can sometimes go either way makes it all the more difficult. Thank you!

FEDERAL & STATE GOVERNMENT LIMITATIONS

SUBSTANTIVE DUE PROCESS. Substantive due process is at issue when the government has enacted a law that prevents a group of people from acting a certain way, or because the law goes against a concept “implicit in the concept of ordered liberty” and/or because the law concerns a matter that is “deeply rooted in our nation’s history,” and if so, whether the law should be struck down or upheld. Fundamental rights affected by substantive due process includes such rights as marriage, family, sex, and procreation, and thus usually non-economic rights. Strict scrutiny must be applied to laws which take away a fundamental right. Strict scrutiny means that the law must be justified (look to the state’s actual justification at the time the law was enacted); it must be compelling (which means it is more than merely important); and it must be narrowly drawn (e.g., neither over- or under-inclusive). A non-fundamental right (usually economic) is subject only to the rational basis test, and is void unless rationally related to a legitimate state interest. Intermediate scrutiny may be applied by seeing whether the law is substantially related to an important interest.

PROCEDURAL DUE PROCESS. Procedural due process is at issue when a person is deprived of life, liberty, or property, caused either intentionally or recklessly by the state (but not negligently), and whether that person was afforded adequate due process? In determining whether due process should be afforded, the following three factors must be balanced: (1) the importance of the individual’s private interest that was deprived; the risk of error if no additional due process was applied and the likelihood that additional due process would prevent such error; and (3) the government’s interest in affording less due process protection due to administration and finance burdens.

EQUAL PROTECTION. Equal protection is at issue when a person or group of persons is classified and discriminated against because they are an insular minority; because they possess an immutable physical trait or stereotype; or because they have been subject to historical discrimination. When the classification is based upon race; alienage; national origin; or fundamental rights (state residency, privacy, but not education), strict stcrutiny must be applied to see whether the discrimination is justified, compelling, and narrowly drawn. Additionally, laws that are neutral on their face but in practice burden on impact are also subject to strict scrutiny. Classifications based upon gender and illegitimacy are subject to intermediate scrutiny to determine whether the law is substantially related to an important state interest. Additionally, laws that are neutral on their face but in practice burden on impact may also be subject to intermediate scrutiny. Finally, laws that classify based upon sexual orientation, mental incapacity, and the like, are subject to a mere rational basis test to determine whether the law has at least any rational relation to a legitimate state interest.

Thank you