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Analyzing a Substantive Due-Process Claim

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2016-03-26 19:11:35
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Constitutional Law For Dummies
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Substantive due process involves whether the government has a legitimate basis for taking away a person’s right to life, liberty, or property. The basic question is, “Wait — does the government have a right to do this at all?

In substantive due-process cases, the courts use a baseline rationality test that considers: (1) Is the government’s interest legitimate? and (2) Is the government’s action a means to a legitimate end?

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Glenn Smith is an emeritus professor and has taught constitutional law for four decades. He remains active as a visiting lecturer at UCSD and is an expert in statutory interpretation, privacy, free speech, and voter initiatives. He is the co-author of U.S. Constitution For Dummies, All New Edition.

Patricia Fusco is a government attorney and a criminal prosecutor working in the California Attorney General's Office, Special Crimes Unit. As a trial attorney, she deals with issues of constitutional law on a daily basis.