Procedural Vs Substantive Due Process

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The difference between procedural and substantive due process refers to the procedures states must follow when it comes to the Due Process clause. Procedural due process is defined as the actions the state or federal government must follow in both civil and criminal cases before denying any person a constitutionally protected right that concerns the person’s life, liberty, or property. It also exists to help ensure procedural justice which is defined as the fairness of the process used when applying the law. Substantive due process defends individual privileges and freedoms, meaning that it identifies protected areas into which the law may not intervene. Another way to understand substantive due process is by seeing those rights, behaviors, …show more content…
Review standards applied in Constitutional cases are strict scrutiny which is defined as the most rigorous standard of judicial review used by the courts, this means that the legislative deference is absent it is compelling to state interest and the relationship between means and ends as absolutely necessary and the state also needs to provide the burden of proof. Another Standard of review is Intermediate Scrutiny which is the second level of deciding issues using judicial review. In this case it is somewhat differential, its relationship to state interest is important or substantial, the relationship between means and ends are close but not a perfect fit and the burden of proof is up to the state. And the last standard of review is Minimal Scrutiny also known as the Rational Basis Test. Most issues fall under this category. The legislative deference is highly deferential, state’s interest is rational, its relationship between means and ends is reasonably related and the burden of proof falls to the challenger. The rational basis review is the go to standard of review that courts apply when considering constitutional questions, this also includes due process or equal protection under the 5th and 14th …show more content…
In the United States Constitution there is no mention about the right to privacy, nor is it stated in the Bill of Rights, and although the right to privacy is not mentioned in either document the right to privacy has always been upheld by the courts and has been the topic of many debates especially when the subject of law and sexuality are the issues. In the Griswold v. Connecticut the right to privacy was determined when the courts said the use of birth control by a legally married couple fell under the couples right to privacy because of the first, third, fourth, fifth and ninth amendments. And although despite history saying that birth control is criminalized through the Comstock Act it would no longer fall under this law. The right to privacy in regards to the case Roe v. Wade is probably the most controversial case in history to this day. Roe v Wade has to do with the appeal based on the Texas law prohibiting all abortions expect the abortions that were considered medical necessities in order to save the life of the mother. Courts said in the Roe v Wade case that the right to privacy falls within the Due Process Clause of the Fourteenth Amendment. The Roe case was also an extension of the Griswold case because of marital privacy and since privacy is considered a basic right, the Texas abortion law continued following the strict scrutiny rule. Privacy rights conflict with association
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