Substantive Due Process Analysis of the Incarceration of Drug OffendersA. FrameworkIn Washington v. Glucksberg, Chief Justice Rehnquist described the framework for substantive due process analysis:Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” Second, we have required in substantive-due-process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial “guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. As we stated recently in Flores, the Fourteenth Amendment “forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”Applying this method, one must first examine freedom from incarceration to determine if it is a fundamental right. If so, government policies that require the incarceration of offenders, including drug offenders, must serve compelling interests and be… Read full this story
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