DP: Determining Which Constitutional Provision Can Be Relied On

Question 1

Bill of Rights (First 10 Amendments)

Answer 1

• 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

Question 2

Bill of Rights that Do Not Fall Under the DP Clause of the 14th Amendment?

Answer 2

Includes:

• the 5th amendment - right to indictment by grand jury
• the 7th Amendment - right to a jury trial in civil cases

Question 3

Discrimination By State Governments

Answer 3

• 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

Question 4

Overall Bases for Suing the Government

Answer 4

• DP claims
• EP claims
• First Amendment claims

Question 5

DP Clauses Under the 5th/14th Amendments

Answer 5

Offer two kinds of protection:

• Procedural Due Process
• Substantive Due Process

Question 6

Procedural DP

Answer 6

Protects citizens against governmental deprivation of “life, liberty, or property” without DP of law

Question 7

Procedural DP: What Does it Apply To?

Answer 7

All people and corporations

Question 8

Procedural DP: Liberty

Answer 8

A very broad term. Includes freedom from bodily restraint and physical punishment.

Question 9

Procedural DP: Property

Answer 9

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

Question 10

Procedural DP: Life

Answer 10

If the state is trying to execute someone it must provide DP of law.

Question 11

Procedural DP: What Process is Due?

Answer 11

To deprive someone of life, liberty, or property, the gov. must give:

• notice; and
• hearing

Question 12

Procedural DP: Factors to Determine Adequacy of Notice & Hearing

Answer 12

• 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

Question 13

Substantive DP

Answer 13

Protects rights that are “implicit in the concept of ordered liberty” or are “deeply rooted” in our history and tradition.

Question 14

Rational Basis Review v. Strict Scrutiny

Answer 14

• 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).

Question 15

Substantive DP: Economic Regulations

Answer 15

Are subject to rational basis review.

Question 16

Substantive DP: Fundamental Rights

Answer 16

That invoke strict scrutiny include:

• Contraceptives
• Marriage
• Abortion
• Family Relations
• Private Education
• Possession of Obscene Material
• Right to Travel
• Right to Vote

Question 17

Fundamental Right: Abortion

Answer 17

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.

Question 18

Abortion: Constitutional Violations

Answer 18

Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.

Question 19

Abortion: Examples of Undue Burden

Answer 19

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

Question 20

Abortions: Things that Are Not an Undue Burden

Answer 20

• 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

Question 21

Fundamental Right: Family Relations

Answer 21

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.

Question 22

Fundamental Right: Private Education

Answer 22

Parents have a right to privately educate their children outside the public school system.

Question 23

Fundamental Right: Obscene Material

Answer 23

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.

Question 24

Fundamental Right: Right to Travel

Answer 24

• 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.

Question 25

Fundamental Right: Right to Vote

Answer 25

• 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)

Question 26

Fundamental Right: Right to Die?

Answer 26

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.

Question 27

Voting Restrictions that Are Constitutional (Under RB Review)

Answer 27

• Reasonable residency and voter registration requirements
• Reasonable regulation of time and manner of casting votes
• Denying felons the right to vote

Question 28

Voting Restrictions that are Unconstitutional (SS Applies)

Answer 28

• 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

Question 29

Same-Sex Intimacy

Answer 29

Is not considered a fundamental right, but it is unconstitutional to criminalize such behavior (under a rational basis with teeth test).

Question 30

Fifth Amendment Takings Clause

Answer 30

The federal government cannot take private property for public use without just compensation. Applies to the states through the 14th amendment.

Question 31

Four Kinds of Takings

Answer 31

Include:

• Direct government appropriation
• Regulatory taking
• Temporary restrictions
• Conditional permits

Question 32

Direct Government Appropriation

Answer 32

Where the government actually takes someone’s property

Question 33

Regulatory Taking

Answer 33

Where the gov doesn’t take property, but imposes a regulatory requirement that is so onerous as to effectively amount to a taking.

Question 34

Categories of Regulatory Takings

Answer 34

• 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

Question 35

Temporary Restrictions on Property

Answer 35

• 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.

Question 36

Conditional Permits

Answer 36

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