Fundamental Rights and Substantive Due Process · Module 10
Due Process and Unenumerated Fundamental Rights: The Framework
The four-question framework for fundamental rights: is there one, is it infringed, is the infringement justified, and are the means sufficiently related. Where unenumerated rights are located in the text — and incorporation, the step that made any of this apply to the states.
Assigned reading
Chemerinsky, Constitutional Law (7th ed. 2023) — 795–817.
The casebook is the assigned text for this course. This page is the map: what the Module is doing, in what order, and what goes with it.
Topics
The four-issue framework for analyzing fundamental rights: is there a fundamental right; is it infringed; is the infringement justified by a sufficient purpose; and are the means sufficiently related to that purpose. Where unenumerated rights are located in the constitutional text. Incorporation. Why the choice of method decides most of these cases before the merits are reached.
Reading list
0 of 2 readings published · the rest are in preparation and will appear here as they are edited
- Opinion Loving v. Virginia
- Opinion Obergefell v. Hodges
This module in Canvas
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How to read this list
A case named without a marker is assigned as an opinion and is to be read in its entirety. Opinion (edited) means the Professor has cut it for length; the text on this site is the assigned text. Note means the case is not assigned as an opinion at all — its holding, its facts to the extent they matter, and its place in the doctrinal line are given in a note written for this course, and you are responsible for that note exactly as you are responsible for an assigned opinion. Most modules close with a Current case, a recent decision chosen because it shows the doctrine you have just read being applied at its live edge; current cases are assigned as opinions. You are responsible for all assigned required materials, including the notes, questions, problems and commentary that accompany the cases, whether or not we discuss them in class.