6. Individual Rights Flashcards
Procedural due process
Whether the government has followed adequate procedures when it takes away a person’s life, liberty, or property.
Substantive due process
Whether the government has an adequate reason when it takes away a person’s life liberty, or property.
Equal protection
Whether the government’s differences in the treatment of people is adequately justified.
What is a deprivation of liberty?
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute
What is a deprivation of property?
A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled
The test to determine if there has been a deprivation of procedural due process
Balance
- The importance of the interest to the individual
- The ability of additional procedures to increase the accuracy of the fact-finding
- The government’s interests
What test is used when there is a law affecting economic rights?
Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.
The takings clause
The government may take private property for public use if it provides just compensation.
What is considered a “taking?”
- Possessory taking—Government confiscation or physical occupation of property is a taking.
- Regulatory taking—Government regulation is a taking if it leaves no reasonable economically viable use of the property.
Requirements for government conditions on development of property
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking
How to determine if a taking is for public use
It is for public use so long as the government acts under a reasonable belief that the taking will benefit the public.
How to determine if just compensation was paid
Just compensation is measured by the loss of the owner, not the gain of the taker.
The contracts clause
No state shall impair the obligations of contracts.
What does the contracts clause apply to?
Applies only to state or local interference with existing contracts (Never federal government)
Test for when there is state or local interference with private contracts
State or local interference with private contracts must meet intermediate scrutiny
Test for when there is state or local interference with government contracts
State or local interference with government contracts must meet strict scrutiny
What is an ex post facto law?
An ex post facto law is a law that criminally punishes
conduct that was lawful when it was done or that increases punishment for a crime after it was committed
Does the ex post fact clause apply to civil cases?
No. Retroactive civil liability only need meet a rational basis test.
What privacy rights are protected by strict scrutiny?
- The right to marry
- The right to procreate
- The right to custody of one’s children
- The right to keep the family together
- The right to control the upbringing of one’s children
- The right to purchase and use contraceptives
What test is used for the right to abortion?
States may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions.
Does the government have a duty to subsidize abortions or provide abortions in public hospitals
No
Are spousal consent and notification laws for abortion constitutional?
No
Are parental notice and consent laws for unmarried minors laws for abortion constitutional?
A state may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself
The right to refuse medical treatment
- Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
- A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
- A state may prevent family members from terminating treatment for another.
