DP: Determining Which Constitutional Provision Can Be Relied On Flashcards
Bill of Rights (First 10 Amendments)
- Violations by the Federal government should be invoked by DP Clause of 5th Amendment
- Violations by the state government should be invoked by DP Clause of the 14th Amendment
Bill of Rights that Do Not Fall Under the DP Clause of the 14th Amendment?
Includes:
- the 5th amendment - right to indictment by grand jury
- the 7th Amendment - right to a jury trial in civil cases
Discrimination By State Governments
- generally –> EP clause of 14th amendment applies
- against out-of-state business interest or corporations –> EP Clause or the DP Clause (Dormant Commerce Clause) might apply
- discrimination on citizens who have moved to the state’s right to travel –> Privileges and Immunities Clause
Overall Bases for Suing the Government
- DP claims
- EP claims
- First Amendment claims
DP Clauses Under the 5th/14th Amendments
Offer two kinds of protection:
- Procedural Due Process
- Substantive Due Process
Procedural DP
Protects citizens against governmental deprivation of “life, liberty, or property” without DP of law
Procedural DP: What Does it Apply To?
All people and corporations
Procedural DP: Liberty
A very broad term. Includes freedom from bodily restraint and physical punishment.
Procedural DP: Property
A more narrow term. However, there are property interests in:
- public education
- public employment (if there is fixed-term employment or a for-cause provision in K)
- welfare benefits
- driver’s license
Procedural DP: Life
If the state is trying to execute someone it must provide DP of law.
Procedural DP: What Process is Due?
To deprive someone of life, liberty, or property, the gov. must give:
- notice; and
- hearing
Procedural DP: Factors to Determine Adequacy of Notice & Hearing
- The importance of the individual interest protected;
- The risk of an erroneous deprivation of this interest through the procedures used; and
- The government’s interest in streamlined procedures
Substantive DP
Protects rights that are “implicit in the concept of ordered liberty” or are “deeply rooted” in our history and tradition.
Rational Basis Review v. Strict Scrutiny
- At a minimum, substantive DP requires that all legislation be rationally related to some legitimate gov purpose. BOP is on P to prove otherwise (very difficult burden to meet).
- But when a substantive right asserted by P is a “fundamental” right –> the court will apply strict scrutiny which requires the legislation to be narrowly tailored to achieve a compelling gov. interest. BOP is on D/Gov (very difficult burden to meet).
Substantive DP: Economic Regulations
Are subject to rational basis review.
Substantive DP: Fundamental Rights
That invoke strict scrutiny include:
- Contraceptives
- Marriage
- Abortion
- Family Relations
- Private Education
- Possession of Obscene Material
- Right to Travel
- Right to Vote
Fundamental Right: Abortion
A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. Even subsequent to viability, a state cannot force a woman to continue a pregnancy if it endangers her life or health.
Abortion: Constitutional Violations
Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.
Abortion: Examples of Undue Burden
Include:
- total ban on abortion
- spousal consent or notification requirement
- recording the names of patients who seek abortions
- requiring minors to get parental consent without a judicial bypass option
Abortions: Things that Are Not an Undue Burden
- Requiring minors to get parental consent with a judicial bypass option
- A 24-hour waiting period
- Requiring doctors to give truthful, non-misleading information to women seeking abortions
- Refusing public funds
- A prohibition on certain methods of abortion if they are not the safest
Fundamental Right: Family Relations
The government cannot prohibit members of an extended family from living in a single household. But the state can ban unrelated persons from living together in a single-family residence.
Fundamental Right: Private Education
Parents have a right to privately educate their children outside the public school system.
Fundamental Right: Obscene Material
One has a right to possess obscene material in the privacy of one’s home (except for child pornography). However, there is not a protected right to buy or sell that same material.
Fundamental Right: Right to Travel
- 14th Amendment Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state.
- The right to international travel is not absolute and may be subject to reasonable restrictions in the name of national security.
Fundamental Right: Right to Vote
- Normally receives strict scrutiny (but not all)
- Reasonable restrictions on residency or identification must pass a standard higher than RB but less than IS (looks at whether there is an undue burden on voting rights)
Fundamental Right: Right to Die?
Is not presently a fundamental right. Nevertheless, a person has a well established DP liberty interest in not being forced to undergo unwanted medical procedures, such as life-support.
Voting Restrictions that Are Constitutional (Under RB Review)
- Reasonable residency and voter registration requirements
- Reasonable regulation of time and manner of casting votes
- Denying felons the right to vote
Voting Restrictions that are Unconstitutional (SS Applies)
- Cannot impose poll tax
- Cannot require voters at school board elections to own property
- Cannot count votes using standards that lack uniformity or are too vague
Same-Sex Intimacy
Is not considered a fundamental right, but it is unconstitutional to criminalize such behavior (under a rational basis with teeth test).
Fifth Amendment Takings Clause
The federal government cannot take private property for public use without just compensation. Applies to the states through the 14th amendment.
Four Kinds of Takings
Include:
- Direct government appropriation
- Regulatory taking
- Temporary restrictions
- Conditional permits
Direct Government Appropriation
Where the government actually takes someone’s property
Regulatory Taking
Where the gov doesn’t take property, but imposes a regulatory requirement that is so onerous as to effectively amount to a taking.
Categories of Regulatory Takings
- The regulation requires the property owner to suffer some permanent physical invasion
- The regulation deprives the property owner of all economically beneficial use to the property
Temporary Restrictions on Property
- A temporary regulation may not be a taking where the property will recover value when the prohibition is lifted.
- To determine whether a temporary regulation is a taking the courts will examine both the time & space dimensions of a property interest.
Conditional Permits
Permissible if:
- there is a logical nexus between the condition and the gov purposes; and
- there is a rough proportionality between the impact on the proposed development and the gov objectives served by the condition
