DP and Incorporation of portions of BOR

Question 1

Though the 14th amendment P&I was held not to include the bill of rights, nonetheless, what rights under the bill of rights apply to the states?

Answer 1

1. 1st amendment freedom of speech and press, the right to assemble and petition the gov’t for a redress of grievances, freedom of religion2. 4th amendment right to be free from unreasonable searches and seizures3. 5th amendment protection against double jeopardy, protection against self incrimination, and requirement for just compensation when private property is taken for public use4. 6th amendment right to speedy trial, confront and cross-examine Ws, counsel, jury in crim cases5. 8th amendment against cruel and unusual punishment6. 2nd amendment right to bear arms

Question 2

What are major BOR rights not applicable to the states?

Answer 2

1. 5th amendment right to grand jury in crim cases;2. 7th amendment right to jury in civil cases3. excessive fines clause of the 8th amendment

Question 3

What is meant by Procedural Due Process?

Answer 3

The 5th and 14th amendments protect against the deprivation of life, liberty or property without due process of the law. Where there is deprivation of these, the individual is entitled to procedural safeguards.

Question 4

Examples of deprivation of liberty

Answer 4

freedom from bodily restraints, physical punishment, and commitment to a mental institution

Question 5

What are examples of property interests?

Answer 5

1. Public Education2. Continued Welfare benefits3. Retention of Driver’s license (can’t revoke without a hearing)4. Public Employment (where there is a tenure system or where someone can only get fired for “cause”)5. Prejudgment Garnishment6. Forfeiture of property7. Business Licensing

Question 6

What kind of procedure does the gov’t have to follow in order to be able to deprive a person of life, liberty or property?

Answer 6

1. Adequate Notice2. Hearing in which you can contest the basis of the deprivation

Question 7

What factors are balanced to determine adequate notice and/or hearing?

Answer 7

1. How important is the individual interest that is protected2. What is the risk that the gov’t will make mistake in taking away this interest3. Gov’t’s interest in the streamline procedures, including the function involved and the fiscal and admin burdens that the additional or substitute procedural requirements would entail

Question 8

Substantive Due Process and Economic Regulation

Answer 8

SDP rights are NOT economic. Economic regulation by the states or the federal government only has to meet rational basis review (i.e., challenger has the burden to show that a regulation lacks a rational connection to a legitimate government interest).

Question 9

What must the gov’t show in order to regulate personal rights?

Answer 9

Strict Scrutiny: the GOV’T must show that the regulation serves a COMPELLING gov’t interest and is NECESSARY to achieve that interest.

Question 10

Abortion - Pre-Viability

Answer 10

A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. During this time, the gov’t may regulate abortion in the interest either of the mother’s health or of the fetus. The regulation must not impose an UNDUE BURDEN on the right to abort.

Question 11

In abortion cases, what has been held as UNDUE BURDENS?

Answer 11

total ban of pre-viability abortions, spousal consent requirement, spousal notification requirement, recording of names of those who seek abortions, requiring minors to get parental consent w/o a judicial bypass

Question 12

What has been held not to be undue burdens on the right to abortions?

Answer 12

parental consent requirement w/a judicial bypass, 24 hour waiting period, requiring doctors to provide truthful info, refusing public funds for abortions, prohibition on certain methods

Question 13

What must post-viability abortion regulations allow for?

Answer 13

must allow abortions when necessary to protect the life and health of the mother

Question 14

SDP - Family Relations

Answer 14

fundamental right exists for related persons to live together; this does not extend to unrelated persons

Question 15

SDP - Sexual Orientation

Answer 15

Gov’t cannot criminalize homosexual sodomy and other forms of homo intimacy and autonomy without meeting RATIONAL REVIEW. However, SCOTUS has already held that the state has no legitimate interest in regulating deviate sexual intercourse b/w gays (i.e., it did not pass RR).

Question 16

SPD - Obscene material

Answer 16

right to possess obscene material in your own home is protected. However, the gov’t can severely restrict the sale, purchase, receipt, transport, and distribution of obscene materials. Child porn is illegal, duh.

Question 17

SPD - right to die

Answer 17

There is a right in denying unwanted procedures, though there is no liberty interest in assisted suicide (State has interest in preserving life).

Question 18

SPD - right to travel

Answer 18

14th Am P&I clause allows every citizen to travel freely from state to state and to set up residency in a new state. Right to int’l travel is not an absolute right the gov’t can restrict in the name of nat’l security.

Question 19

P&I Clause of 14th v. Commerce Clause, DP and EP; Right to travel

Answer 19

almost all the P&Is are protected by the commerce clause, the DP and EP clauses. P&I is an alternative to EP clause protection w/regard to right to travel.

Question 20

SPD - Right to vote

Answer 20

the right to US citizens over the age of 18 to vote extends to all federal, state and local elections, as well as to primaries. Strict Scrutiny is used to judge restrictions of this right. 15th - can discriminate w/respect to race and the right to vote19th - no gender discrimination24th - no poll taxes for fed elections26th - citizens 18 and over have this right

Question 21

Can gov’t restrict ballot-access by candidates?

Answer 21

Yes, by age/duration of residency/payment of filing fees. These only need to meet the RR Standard.

Question 22

Voter Registration Requirements

Answer 22

voter registration requirements and regulation of the time, place and manner of casting ballots are valid so long as they do not impose an UNDUE BURDEN on the right to vote.

Question 23

Takings Clause of the 5th Am

Answer 23

provides that private property shall not be taken for public use w/o just compensation. Applies to the states via DP of the 14th.

Question 24

What are the two kinds of takings?

Answer 24

1. Direct Gov’t Appropriation 2. Regulatory Taking

Question 25

Direct gov’t appropriation

Answer 25

where the state validly regulates for health, safety or welfare purposes under its police power, the gov’t action merely amounts to a regulation, and payment of just compensation is not required. However, a taking does occur where there is an actual appropriation of one’s property.

Question 26

Regulatory Taking

Answer 26

1. Any permanent, physical invasion, no matter how minor, will constitute a taking2. a land-use regulation is a taking if it denies an owner all reasonable, economically beneficial uses of his land.3. if the reg just decreases the value of prop, court will use a balancing test to determine if there was a taking.

Question 27

“Public Use” as used in the Takings Clause

Answer 27

SCOTUS interpreted “public use” to mean “public purpose”. The standard is easy to meet; only something extraordinarily abusive will not be a public purpose.