Introduction to Fundamental Rights

1. Introduction to Fundamental Rights Equal Protection & Substantive Due Process

2. Distinguish • EP: law/action which discriminates among people in the exercise of a right = equal protection type claim (unjustifiable discrimination) • SDP: What is "substantive due process"? Core concept is that government can't interfere with basic liberties (personal choices) without adequate justification • PDP: law that deprives one of life, liberty or property interests (NB: not same as fundamental rights—a larger set) without notice & opportunity=PDP inadequate process….state can interfere but not w/o fair process)

3. EP vs SDP? • Equal Protection prevents discrimination vs • SDP not focused on the right to be treated equally….rather, the right to be left alone….  autonomy of individuals & ordered liberty (how individuals relate to society and the democratic majority)

4. overlap a state action could potentially raise all three claims • SINCE EP includes denial of equal enjoyment of fundamental rights there is crossover to SDP • law that discriminates in exercise of right = EP (but not exclusively) Versus •  law that applies to everyone but interferes in a protected interest =subtantive due process (unjustifiable interference) •  gov action that interfers or discriminates may also deprive without adequate procedural protections against error (PDP)

5. Framework & Key issues • 1. protected interest (fundamental?) • 2. Government "infringement" (substantial, direct?) + consider Manner of interference  discrim vs substantive dp, vs pdp • 3. Id & Apply Level of Scrutiny • sufficient justification • means….ends