Due Process Flashcards
Constitutional Text of Due Process
“No state shall … deprive any person of life, liberty, or property without due process of the law.”
Minimal Requirement of Due Process
1) Opportunity to present objections
2) Fair, neutral decisionmaker
Property Interest Under Due Process
1) A legitimate claim or entitlement to a benefit
2) Bestowed by state law
Court Recognized Property Interests
1) Public Education: If attendance required
2) Welfare Benefits: If previously met statutory requirements
3) Continued Pubic Employment: If statute requires or there is a mutual understanding that termination will only occur for “cause”
Liberty Interest
1) Freedom of action, or
2) Freedom provided by statute.
Injury to Reputation
Proof of deprivation requires significant loss to:
1) Employment opportunities, or
2) Associational opportunities.
Matthew Test (Determining What Process is Due)
Factor test:
1) Private interest
2) Risk of erroneous deprivation
3) Government interest
Post-Deprivation Hearing
Permitted only when:
1) Property interest
2) Immediate public harm
3) Adequate post-deprivation remedies
State Official Negligence
Not sufficient to violate DP, if adequate post-deprivation remedies are available.
Incorporation Doctrine
14th Amendment applies most of the Bill of Rights to the states
Substantive Due Process Rights
Unenumerated right so fundamental and necessary to ordered liberty.
Glucksberg Test (Determining Whether a Right is Fundamental)
1) Carefully described right
2) Deeply rooted in history and tradition
SPD Fundamental Privacy Rights
1) Contraceptive use
2) Lifesaving medical treatment
3) Marriage
4) Private realm within family life
SPD Rights But Not Expressly Held
1) Consensual sexual choices
2) Same-sex marriage
