Procedural due process
- Is the threatened interest a protected one (life, liberty, property)?
- If so, what process is due?
Determining what type of process is due, ask:
- What is the private interest affected?
- What is the risk of erroneous deprivation and value of additional or substitute safeguards?
- What is the burden in providing additional process?
Substantive due process: Strict scruity
For fundamental rights
Asks whether it is the least restrictive means to achieve a compelling government interest.
Law should be neither over-inclusive nor under-inclusive.
Government must show that the law is necessary
Substantive due process: intermediate scrutiny
Substantially related to important government interest.
For equal protection review
Substantive due process: rational basis
Rationally related to a legitimate state interest
Challenger must establish that the law is arbitrary or irrational
- Interstate travel
- Right to vote
- Right to ballot access
- Privacy (marriage, contraception, sex, abortion, parental rights, family relations, obscene material, bodily integrity)