Legal Memorandum: Substantive Due Process Challenge to a Statute

Issue: Under the law of the Virgin Islands, what is the standard of review for a substantive due process challenge to a statute?

The Virgin Islands Supreme Court addressed the standard of review for a substantive due process challenge to a statute in the context of a sentencing scheme and explained.  Beaupierre v. People of the Virgin Islands, 55 V.I. 623, 631-32 (V.I. 2011).  If the complained of legislation implicates a “fundamental” right protected under the due process clause, then courts will apply the strict scrutiny test.  Id. at 631 (citing Roe v. Wade, 410 U.S. 113, 155, 93 S. Ct. 705 (1973)).  If strict scrutiny applies, “the government must show the law advances a compelling state interest that is narrowly tailored to restrict the fundamental right to the least extent necessary to meet the compelling state interest.”  Id. (citing Roe, 410 U.S. at 155).  However, if the right is not “fundamental,” courts will apply the rational basis standard of review.  Id.  “Under the much less stringent rational basis test, ‘a statute withstands a substantive due process challenge if the state identifies a legitimate state interest that the legislature could rationally conclude was served by the statute.'”  Id. at 631-32 (quoting Alexander v. Whitman, 114 F.3d 1392, 1403 (3d Cir. 1997)).

In determining whether a claim involves a “fundamental” right, courts examine whether the complained of conduct or statute implicates a right “‘fundamental to our scheme of ordered liberty and system of justice’ or that it is a ‘right inherent in the human condition.'”  Id. at 632 (quoting McDonald v. City of Chicago, 561 U.S. […]