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Analyzing a Substantive Due-Process Claim

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2016-03-26 19:11:35
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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?

About This Article

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About the book author:

Glenn C. Smith is a professor of constitutional law at California Western School of Law in San Diego, CA, and creator of a nationally recognized seminar in which law students learn about the Supreme Court by role-playing as current justices and lawyers arguing before them.

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.