Due Process

Question 1

What is the difference between the due process clause under the 5th Amendment and under the 14th Amendment?

Answer 1

Due process claims against the federal government are brought under the 5th Amendment, while due process claims against state governments are brought under the 14th Amendment

Question 2

What does procedural due process protect?

Answer 2

Protects against governmental deprivation of “life, liberty, or property” without due process of law

Question 3

What kind of liberty does procedural due process protect?

Answer 3

Freedom from bodily restraint and physical punishment

Question 4

What kind of property does procedural due process protect?

Answer 4

Public education, public employment (if fixed-term employment or can be fired only for cause), welfare benefits, driver’s license

Question 5

Procedural due process applies to whom?

Answer 5

Applies to all people (not just citizens) as well as corporations

Question 6

What must the government give in order to deprive someone of life, liberty, or property?

Answer 6

notice and an opportunity to be heard

Question 7

What factors help determine whether the government provided adequate notice and hearing?

Answer 7

(1) The importance of the individual interest protected;
(2) The risk of an erroneous deprivation of this interest through the procedures used; AND
(3) The government’s interest in streamlined procedures

Question 8

What is substantive due process?

Answer 8

Fundamental rights that are not enumerated in the Constitution

Question 9

What is the rational basis standard for substantial due process?

Answer 9

The plaintiff must show that the law is not rationally related to any legitimate government interest

Question 10

What is the strict scrutiny standard for analyzing substantial due process?

Answer 10

The government must show a compelling government interest and that its legislation is narrowly tailored to achieve its purpose

Question 11

Economic regulations must meet what standard of review?

Answer 11

Substantial due process rights are not economic, so economic regulations only have to meet rational basis review

Question 12

What are some examples of fundamental rights guaranteed under substantial due process?

Answer 12

1. contraception
2. marriage
3. family relations
4. private education
5. possession of obscene material
6. right to travel
7. right to vote
8. sexual orientation (weak)
9. right to die (weak)

Question 13

Since family relations are a fundamental right, can states restrict who lives in a single household?

Answer 13

States cannot prohibit members of an extended family from living in a single household; however, states are allowed to ban unrelated persons from living together in a single-family residence

Question 14

What is the fundamental right to private education?

Answer 14

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

Question 15

What is the right to possession of obscene material?

Answer 15

People have a right to possess obscene material (except child pornography) in the privacy of one’s home; however, there is no right to buy or sell that same material

Question 16

What is the right to travel?

Answer 16

14th Amendment Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state

Question 17

Where does the right to vote derive from?

Answer 17

1. 1st Amend: feds cannot limit right to associate
2. 14th Amend: states cannot limit right to vote
3. 15th Amend: states cannot discriminate with respect to race
4. 19th Amend: states cannot discriminate with respect to sex
5. 24th Amend: no poll taxes
6. 26th Amend: right to vote for citizens 18 and up

Question 18

What are some examples of constitutional restrictions to the right to vote?

Answer 18

(i) Reasonable residency and voter registration requirements
(ii) Reasonable regulation of time and manner of casting votes
(iii) Denying felons the right to vote

Question 19

What are some examples of unconstitutional restrictions to the right to vote?

Answer 19

Cannot count votes using standards that lack uniformity or are too vague

Question 20

Why is the right to same-sex relationships weaker than other fundamental rights?

Answer 20

Although states cannot ban same-sex intimacies and autonomy, this is not considered a fundamental right, so courts use rational basis review

Question 21

What is the right to die?

Answer 21

Although there is a right to refuse unwanted medical procedures (i.e., life-support), there is no right to physician-assisted suicide

Question 22

What is the 5th Amendment’s takings clause?

Answer 22

Government cannot take private property for public use (public purpose) without just compensation

Question 23

What are the four kinds of takings?

Answer 23

1. direct government appropriation
2. regulatory taking
3. temporary restrictions
4. conditional permits

Question 24

What is a direct government appropriation?

Answer 24

Where government actually takes property

Question 25

What is a regulatory taking?

Answer 25

Where government doesn’t take property but imposes a regulatory requirement that is so onerous as to effectively amount to a taking of land

Question 26

Under what tests would a court determine that a regulation amounts to a taking?

Answer 26

a. The regulation requires the property owner to suffer some permanent physical invasion;

b. The regulation deprives the property owner of all economically beneficial use to the property; OR

c. A balancing test of the economic versus physical impact of the regulation on the property owner, as well as the duration and character of the government action finds that the regulation is a taking

Question 27

What is a temporary restriction?

Answer 27

It does not permanently deprive the owner of all economically beneficial uses of his land, so it does not constitute a taking; a court will look at both the dimensions of a property interest and the term of years

Question 28

What is a conditional permit?

Answer 28

A condition on the grant of a permit for land development