Substantive due process Puns

Hey y'all, just had a last minute question-

How can you tell the difference between an equal protection claim and a substantive due process one? Is it fair to say that a substantive due process issue is where the govt is denying or taking away something, and EP is just restricting by classification? For example, the FAA passes a new regulation whereupon an air traffic controller's 60th birthday they must be let go (cause of age and ability to work etc). Would this be a substantive due process issue? I guess I'm just struggling spotting the difference between the two and don't want to run into the MEE doing a whole due process analysis when I was supposed to be doing an EP one or vice verse. Any help is greatly appreciated!

just still completely lost about when to do an equal protection analysis versus when to do a substantive due process one. i get all the terminology about fundamental rights, suspect classes, penumbras, whatever and i can fully write out an answer once someone just tells me if i have a due process or EP issue on my hands.

how can i tell when a fact pattern is either, or both???

I was just looking over these forums, and I couldn't help but wonder whether it might be possible to sue NCBE for violation of due process under the Fourteenth Amendment?

To satisfy the state action requirement, could it not be argued that NCBE, though a private actor, performs in the role of a state government to any state that relies on its UBE materials in administering its bar exam? If this could be established, then it might be possible.

If NCBE can be shown to be a private actor performing in the role of a state government, then I will continue to my next argument. Regarding the due process clause of the 14th Amendment, there is ample precedent to support a finding that people have a liberty right to pursue the profession of their choice (Meyer v. Nebraska; Bolling v. Sharpe; Gabbert v. Conn), free from UNREASONABLE government interference.

Third, I am willing to concede that the requirement of a bar exam is NOT UNREASONABLE.

Instead, I argue that the CONTENT of the UBE creates an unreasonable restriction on law school graduates' liberty interests in pursuing the profession of their choice, free from UNREASONABLE government interference. For example, IF the purpose of the bar exam is as NCBE claims it is, that is, "to ensure quality and reliability" in assessing the competency of those licensed to practice law, then the CONTENT we have seen on parts of the UBE certainly goes well beyond the reach of this claim. I would wager that at least 90% of the CONTENT on the bar exam simply does not serve this stated purpose. Surely, NCBE can create a bar exam that more accurately tests the legal copetency necessary to practice law, can it not? If these assertions can be shown, then I believe there might be a valid claim.

If, however, there is a licensed attorney or judge out there that can look at some of the questions on the MBE or MEE and tell me with absolute certainty that these are things that every lawyer must know in order to be a competent attorney, then I will accept my defeat and shut up about NCBE's UBE from now on.

But, in the meantime, if anybody can put up any legal arguments for or against the possibility of suing NCBE on these grounds that I have stated above, please, feel free to leave them in the comments below. This IS a course of action that I feel should at least be considered.

Can you guys help me out and answer these general questions? I understand that the 5th amendment and the 14th amendment both contain Due Process Clauses. How do you know which one is being used and does it matter which amendment is being invoked for a final exam?

Also, for the Substantive Due Process analysis, what is the difference between intermediate/moderately heightened scrutiny and strict scrutiny?

Pls answer

The best source I can find defending the concept of substantive due process is this: https://www.cato-unbound.org/2012/02/06/timothy-sandefur/why-substantive-due-process-makes-sense. I get lost at this key paragraph:

>If there are inherent restrictions on the procedures by which a bill can become a law, then there would seem no denying that there are also implicit limits on the content of laws that can be made. If law is the opposite of arbitrariness, then the legislature cannot get around the prohibition on arbitrariness by simply labeling an arbitrary act “law.”

A few questions I have, in now way over my head:

1. Are there "inherent restrictions on the procedures by which a bill can become law"? Aren't such procedures predefined and, more importantly, subject to change through legislative means?

2. Isn't the difference here that the procedures are subject to a definite process of democratic change, whereas the "implicit limits on the content of laws that can be made" might turn out to be constantly amorphous and shifting from one court to the next?

3. How does a denier of substantive due process deal with a law that violates a human right not mentioned in the Constitution, but which does allow for proper procedural due process? Does the denier need to recommend that the legislature amend the Constitution so that the human right is more clearly defined and protected?

Any tips for keeping the two separate? I feel like I keep confusing them, especially while doing practice questions.

I’m struggling with a Due Process example:

Inmate participates in a training and work program. Agreement is 50% of his pay will go to the prison. Other 50% is his. He completes the program and applies for a job but gets turned down. He finds out the prison does not allow disfigured inmates to work outside the prison because it makes them look bad. There’s apparently an equal protection and substantive due process component. I see the EP claim but not the due process. Can you claim he has a fundamental right that’s being infringed? I don’t know if I’m on the right track.

Hi everyone,

I know this is unorthodox so feel free to ignore this post. I'm doing some research for my con law professor regarding substantive due process. Specifically, I'm helping to create a list of the most vocal critics and supporters. I've had some success, but there are a bazillion articles out there that only tangentially touch upon it, so if anyone has any thoughts on individuals to look into that would be amazing.

As of now, the cornerstones are Ely (critic), Dworkin (supporter), and Finnis (supporter). The real problem is that each individual has to not only take a stance on SDP, they also have to have some theory of its application or why it's bullshit.

Like I said, any help is amazing (names will do just fine, articles would be over the top), and I understand if you all are super bogged down these days.

Thanks again!

Looking for something that helps to clearly define what standard of review is used based on different types rights being taken away - would be very grateful!

Having difficulty distinguishing and remembering the difference between procedural due process and substantive due process. Any tips and advice?

And it was on his personal account, not his official Senate account lol. Not a staffer.

What do we say about reactionary politics?

It is ALL projection.

If the government creates a law saying that it's alright for some private actors to deny fundamental rights, does that violate substantive due process?

For example, a state passes a law that says pharmacists who, for religious reasons, do not want to sell birth control to customers, then these pharmacists do not have to sell birth control to customers.

I'm guessing no because it's not an absolute denial of the right, but I just want to double check.

I've got a kind of complicated question, but I think I am confusing myself more than anything.

So, the 14th Amendment was passed in response to slavery and to arguably curb the power of states to limit individual's liberty. The 14th Amendment includes the Privileges and Immunities Clause, Due Process and Equal Protection Clause.

So in Slaughterhouse, the Court ruled that the P&I Clause only applied to federal rights under citizenship, so it basically didn't protect individuals in states.

Now we have Due Process. Prior to the 14th Amendment the Court ruled that the Bill of Rights only applied to the federal government in Barron v. Baltimore. However, the Court has selectively incorporated amendments such as the 2nd Amendment in the Heller/McDonald cases.

Under substantive due process, I have in my notes that the Court uses strict scrutiny when the state is burdening fundamental personal rights. So this means that if the Court incorporates an amendment, like the 2nd Amendment, then that right becomes fundamental and is subject to strict scrutiny? is this right???

Secondly, I have in my notes a rough framework of analysis that our professor used. He said to determine whether a right is fundamental we should look to whether it is expressly enumerated, then whether its essential to liberty/deeply rooted, and finally to whether it fits into the penumbra/zone of privacy. When he said to look to whether it is expressly enumerated, he meant only those Amendments that have been selectively incorporated right??? I may be reading way too deep into this but this has confused me quite a bit.

Sorry for the confusion and thanks for reading the wall of text!!!

I was reading the article about Justice Scalia's statements about abortion and homosexual sodomy, which got me into researching the Constitutional basis for Roe v. Wade, but I can't wrap my mind around this concept of "due process," particularly in the case of the 14th amendment. I understand what due process means in a criminal or civil sense (e.g. right to trial by jury), but what does it mean in a broader sense? All the explanations I read seem to be circular reasoning, they just don't give an exact definition. Does "deprive any person of life, liberty, or property, without due process of law" mean that it's acceptable to create a law depriving these things? Or just that they can only be deprived after being given the proper judiciary hearings for breaking other laws under the enumerated powers of the Constitution? And without an understanding of this, trying to understand "substantive due process" just made my brain explode. Lastly, explanations of fundamental rights, like abortion via the "right to privacy under due process" in the Roe V. Wade decision, or of the right to marry and how it is particularly a man to woman, would be immensely appreciated.

I know this is quite in depth, but I've got 10 wikipedia pages open right now, have been reading for at least 2 hours, and I seem to be no further ahead in my understanding then when I started. Please, please, please help me, Reddit. I can't stand it when I don't understand something, and this one is really going to eat at me until I do. I searched here already and found nothing that helped, either, so my apologies if there are good explanations already out there; feel free to link them if you don't want to explain yourself, there could certainly be ones that I missed.

Thank you!!!

Hey,

I’m still relatively early on in my career and looking to advance. I look for jobs on the job bank all the time and I notice a majority of them say something along the lines of “must be at level or equivalent” or “must substantively be at the XX-0X group to be considered for this process”…

I may be missing something here (hence why I’m asking for advice) but to me this seems quite frustrating because after all, when people are looking to advance in their career/get promotions, they are usually applying for positions ABOVE their current roles, so I don’t get if I am an EC-03 and looking to become an EC-04 or EC-05, why are so many postings saying I already have to be at those levels to be considered?

I don’t understand why I would go through the entire process of applying, interviewing and transitioning jobs, only to end up at the exact same position and salary. Of course, there are instances where lateral movement makes sense but for the most part, I would think most people are trying to move up in their career and not just jump around laterally from department to department..

Can someone explain why so many postings are “at level” and also give advice on how someone (e.g EC-03) can apply and move up to EC-04/05?

Thanks everybody 🙏🙂