6) Individual Liberties

Question 1

What are the two questions of procedural due process?

Answer 1

1. Has there been deprivation of life, liberty, or property?

2. If so, what procedures are required?

Question 2

How can we tell if there has been deprivation of life, liberty, or property?

Answer 2

1. Deprivation of liberty occurs if loss of significant freedom provided by constitution or statute
2. Deprivation of property occurs if person has entitlement and that entitlement not fulfilled

Question 3

Is the government negligent for deprivation of due process?

Answer 3

1. Generally no

2. Must be intentional or reckless government action

Question 4

Does the government have due process liability in emergencies?

Answer 4

Only if conduct shocks the conscience

Question 5

Is governmental failure to protect people from privately inflicted harm a deprivation of due process?

Answer 5

Generally no

Question 6

What is the balancing test to determine what due process is required?

Answer 6

1. Importance of interest to the individual
2. Ability of additional procedures to increase accuracy of fact-finding
3. Government’s interests (efficiency and saving money)

Question 7

What is the definition of substantive due process?

Answer 7

Asks whether government has adequate reason for taking away person’s life, liberty, or property

Used to protect economic liberties and safeguard property

Question 8

What is the takings clause of the 5th amendment?

Answer 8

Government may take private property for public use if provides just compensation

Question 9

When is there a taking for 5th Amend.?

Answer 9

1. Possessory taking: government confiscation or physical occupation of property always a taking
2. Regulatory taking: Government regulation if leaves no reasonable, economically viable use of the property

Question 10

What must government conditions on the development of property be?

Answer 10

Must be justified by benefit roughly proportionate to burden imposed; otherwise a taking BUT temporary denial of owner’s use of property not taking if reasonable.

Question 11

What can a property owner do if there has been government conditions on the development of property they do not like?

Answer 11

Property owner may bring takings challenge to regulations that existed when property acquired

Question 12

What is for public use (5th Amend.)?

Answer 12

If government acting under reasonable belief that the taking will benefit the public

Question 13

What is just compensation per 5th amendment?

Answer 13

Measured in terms of loss to owner in reasonable market value terms; gain to government irrelevant

Question 14

What are contracts clause provisions?

Answer 14

No state shall impair obligations of contracts

1. Clause applies only to state/local interference with already existing contracts
2. State/local governments may interere with private contracts if intermediate scrutiny met
3. State/local interference with own government contracts must meet strict scrutiny

Question 15

What is the level of scrutiny for privacy right protected under substantive due process?

Answer 15

1. Strict scrutiny
2. Right to marry, procreate, custody of children, keep family together, control upbringing of children, purchase/use contraceptives, abortion

Question 16

Right to abortion

Answer 16

1. Prior to viability, states cannot prohibit abortions
2. May regulate prior to viability, but no undue burden on ability to obtain abortions
3. After viability, states may prohibit abortions unless necessary to protect woman’s life/health
4. Government has no duty to subsidize abortions

Question 17

Right to refuse medical treatment

Answer 17

1. Competent adults have right to refuse even life-saving medical treatment
2. State has compelling interest in protecting sanctity of life, may require clear and convincing evidence person wanted treatment terminated before ended
3. State may prevent family members from terminating treatment for others

Question 18

Right to travel

Answer 18

1. Laws preventing people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny
3. No fundamental right to international travel, so restrictions need meet only rational basis

Question 19

Right to vote

Answer 19

1. Laws deny some citizens right to vote must meet strict scrutiny
2. 1-person, 1-vote must be met for all state/local elections
3. At-large elections constitutional unless proof of discriminatory purpose
4. Use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes without standards in presidential election violates equal protection