Defining fundamental constitutional rights, substantive due process, and procedural due process.

1. Substantive Due Process
PSC 381 Bill of Rights

2. Those rights enumerated in the U.S. Constitution are recognized as
"fundamental" by the U.S. Supreme Court.
According to the Supreme Court, enumerated rights that are
incorporated are so fundamental that any law restricting such a right
must both serve a compelling state purpose and be narrowly tailored
to that compelling purpose (strict scrutiny).
Fundamental Rights

3. The U.S. Supreme Court has extended fundamental rights by
recognizing several fundamental rights not specifically enumerated in
the Constitution, including but not limited to:
● The right to interstate travel
● The right to parent one's children¹
● Protection on the high seas from pirates
● The right to privacy²
● The right to marriage³
● The right of self-defense
Fundamental Rights

4. From 1897 until 1937 the right to contract was considered a
fundamental right.
After the U.S. Supreme Court decision in West Coast Hotel Co. v.
Parrish the right to contract became considerably less important in
the context of substantive due process and restrictions on it were
evaluated under the rational basis standard.
Fundamental Rights

5. ● If a right is denied to everyone, it is an issue of substantive due
process.
○ Rights enumerated in and derived from the first eight
amendments in the Bill of Rights;
○ Rights to participate in the political process like the rights of
voting, association, and free speech;
○ the rights of "discrete and insular minorities."
Substantive Due Process

6. ● If a right is denied to some individuals but not others, it is also an
issue of equal protection.
○ the rights of "discrete and insular minorities."
Substantive Due Process

7. Requires government officials to follow fair procedures before
depriving a person of life, liberty, or property.
When the government seeks to deprive a person of one of those
interests, procedural due process minimally requires for the
government to afford the person notice, an opportunity to be heard,
and a decision made by a neutral decisionmaker.
Procedural due process is required by the Due Process Clauses of the
Fifth and Fourteenth Amendments to the United States Constitution.
Procedural Due Process

8. ● An unbiased tribunal.
● Notice of the proposed action and the grounds asserted for it.
● Opportunity to present reasons why the action should be
dropped.
● The right to present evidence, including the right to call
witnesses.
● The right to know opposing evidence.
● The right to cross-examine adverse witnesses.
● A decision based exclusively on the evidence presented.
● Opportunity to be represented by counsel.
● Requirement that the tribunal prepare a record of the evidence.
● Requirement that the tribunal prepare written findings of fact and
Basic Procedural Due Process Rights

9. Attributions:
Basic Procedural Due Process Rights
Friendly, Judge Henry, "Some Kind of Hearing”
Footnotes
1. Troxel v. Granville, 530 U.S. 57 (2000).
2. Union Pacific R. Co. v. Botsford, 141 U.S. 250 (1891).
3. Loving v. Virginia, 388 U.S. 1 (1967).
For additional information:
Brandon L. Blankenship
UAB | Department of Government
(205)912-8248 | blbjd@uab.edu
Attributions and Additional Information: