Con Law 3 - Individual Rights Flashcards
Discrimination by states, 14th A equal protection clause applies unless
(1) States discriminating against out of state visitors. Then P&I clause of article 4.
(2) States discriminating against out of staters who want to move there, P&I clause of 14th A
2 Types of Due Process
Procedural and Substantive
Procedural Due Process
Protects persons against deprivations of life, liberty, or property, without due process of law. Covers all people and corporations.
Due Process - Liberty
Pretty much anything you want to do. You have a liberty interest in not being thrown in jail, punished, etc.
Due Process - Property
Generally property interests in:
(1) public education
(2) public employment if is tenure or termination for cause
(3) welfare benefits
(4) driver’s licenses
Due Process - Life
Comes into play if the government wants to kill you.
Due Process - What process is due before govt can deprive you?
(1) Adequate notice
(2) Adequate hearing
Adequate Notice and Hearing - 3 Factors
(1) Importance of the protected interest. Life gets most protection.
(2) Risk of error. By the government w/o the procedural protection.
(3) Burden on the govt. How burdensome is it on the govt to give you the procedural protection.
Substantive Due Process
Unenumerated rights. Not economic rights.
Economic Regulation - Standard of Review
Rational basis. Rationally related to a legitimate interest.
Strict Scrutiny
(1) Compelling interest. Has to be the actual interest.
(2) Narrowly tailored/no alternative/ least restrictive means/necessary.
Fundamental Rights
SCAMPERD - Sexual-orientation, contraception, abortion, marriage, possession of obscene materials, private education, family relations, right to die.
Abortion
Woman has privacy interest in choosing to have an abortion before the fetus is viable. Even subsequent to viability, a state cannot force a woman to have a pregnancy if it endangers her life or health. Any abortion restrictions must have a life-health exception.
Abortion Restrictions
Unconstitutional if it imposes an undue burden
Things that are Undue Burdens on abortion
- A total ban.
- Spousal consent.
- Spousal notification.
- Recording patient names.
- Parental consent without judicial bypass.
Things that are not undue burdens on abortion
- Parental consent with judicial bypass.
- 24 hour waiting period
- Truthful non-misleading information.
- Refusing public funds.
- Ban on certain methods if not the safest method.
Right to Family Relations
- The govt cannot prohibit members of an extended family from living in a single household.
- The state can ban unrelated persons from living together in a signle family residence.
Sexual Orientation
- Receives rational basis review.
2. Can’t criminalize same sex sexual activity.
Right to Private Education
Govt can’t stop parents from sending kids to private schools.
Possession of Obscene Material
Right to possess them in your home. Can’t have them outside or buy/sell them. No right to possess child pornography anywhere.