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  •     Substantive due process generally: One function of the Due Process Clause is to limit the substantive power of the states to regulate certain areas of human life. That is, certain types of state limits on human conduct are held to so unreasonably interfere with important human rights that they amount to an unconstitutional denial of “liberty.” This use of due process analysis is called “substantive due process” analysis.
    •     Non-fundamental rights: In doing substantive due process analysis, courts distinguish between fundamental and non-fundamental rights. If a right or value is found to be “non-fundamental,” then the state action that impairs that right only has to meet the easy “mere-rationality” test. That is, the state must merely be pursuing a legitimate governmental objective, and be doing so with a means that is rationally related to that objective.
      •     Economic regulation: Nearly all economic regulation (and most “social welfare” regulations) implicates only non-fundamental rights, and is thus usually upheld under this easy “mere-rationality”
    •     Fundamental rights: But if a state or federal government is impairing a “fundamental” right, then the Court uses strict scrutiny: only if the governmental action is “necessary” to achieve a “compelling” governmental objective, will the government avoid violating substantive due process.
    •     Significance of distinction: The single most important thing to do when analyzing a substantive due process problem is thus to determine whether the right in question is “fundamental.” If the right is not fundamental, there’s almost certainly no substantive due process problem. If the right is fundamental, then strict scrutiny will almost certainly result in the measure’s being invalidated.
  •     Economic and social-welfare regulation: It is very easy for state economic and social-welfare regulation to survive substantive due process attack. The state must merely be pursuing a legitimate state objective by rational means. Virtually every state enactment that does not implicate a fundamental right will be upheld under this standard.
  •     Fundamental rights generally: If a state or federal regulation does impair a fundamental right, then the Court strictly scrutinizes the regulation.
    •     Test used: Here is the test used by courts applying strict scrutiny where a state or federal regulation impairs a fundamental right: (1) the objective being pursued by the state must be “compelling”; and (2) the means chosen must be “necessary” to achieve that compelling end. In other words, there must not be any less restrictive means that would do the job just as well.
      •     Burden of proof: Strict scrutiny also shifts the burden of persuasion. That is, when a fundamental right is involved, it’s up to the state to show that it’s pursuing a compelling objective and that the means chosen are “necessary” to achieve that objective — it’s not up to the plaintiff to show that the state fails to meet these tests.
    •     Rights governed: The only rights that are “fundamental” for substantive due process purposes are ones related to the “right of privacy” or “right of autonomy“:
      •     Birth control:  Individuals’ interest in using birth control is “fundamental.” So the state can’t impair that interest without satisfying strict scrutiny.
      •     Abortion: Similarly, abortion is a right protected by substantive due process. (However, the state has a somewhat countervailing interest in protecting “potential life,” so that not all restrictions on the right of abortion will be subjected to strict scrutiny.)
      •     Family relations:  A person’s decisions about how to live her family life and raise her children are also usually “fundamental.” Thus the right of relatives to live together, a parent’s right to direct the upbringing and education of his children, and the right to marry are all fundamental. Therefore, these rights can be impaired only if the state can pass strict scrutiny.

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