Due Process

Question 1

Due Process under the 14th amndmt

Answer 1

The 9th amendment states that the rights included within the Constitution are not all inclusive, there are more.

1. To have liberty we have to decide what it means to have liberty.
2. The court now has to put rights it wants to guarantee in “liberty” in the due process clause or in the equal protections clause
3. Even they don’t seem to fit, the slaughterhouse cases shut down the possibility of privileges or immunities imposing a floor of rights on states

Question 2

5th vs 14th amndmt Procedural Due Process

Answer 2

5th amendment = federal government;
- No person shall be deprived of life, liberty, or property without due process

14th amendment = state governments
- No STATE shall deprive any person of life, liberty, or property without due process

-The equal protection clause, “no state shall deny equal protection”, is only in the 14th amendment but has been held to apply to federal government through reverse incorporation

Question 3

The analysis for procedural due process is always:

Answer 3

1. Is there a deprivation of life, liberty, or property?
2. What process is due?
   a. This is a sliding scale
   i. Taking life requires A
   LOT of due process
   (multiple trials)
   ii. Taking liberty requires a
   significant amount (trial)
   iii. Property requires less
   and is flexible in
   accordance with value.
   ie: A civil fine requires
   very little
   b. SCOTUS ultimately tells
   us what process is due

Question 4

Cleveland Board of Education v. Loudermill - Facts and Arguments

Answer 4

Facts
1. Gov jobs can only be fired for cause
2. Loudermill, security guard for Cleveland Schools, dismissed for dishonesty because he checked no on felony question on application
3. The property interest is employment until showing cause

Arguments
1. Loudermill argues pre-termination hearing required for due process
2. Board says state created the right, so they decide the process required.

Question 5

Cleveland Board of Education - Holding and Note

Answer 5

1. States can create property rights under state law
2. Whether or not deprivation is constitutional is defined by the due process clause, not state law
3. Here, Loudermill has a property interest since he could only be fired for cause
4. Due process requires a limited pre-termination hearing and a more elaborate post-termination hearing

Note: if states could define the process required the due process clause would be worthless

Question 6

Mathews v. Eldridge - Facts, arguments, holding

Answer 6

Facts
1. Eldridge receiving disability payments, state agency finds no longer eligible
2. Reconsideration procedures available, but not taken

Arguments:
1. Eldridge sues arguing due process is a trial
2. The agency argued reconsideration procedure was enough

Holding: Based on the three factors and compared to Goldberg, benefits of a hearing would be limited and the costs would be high. No hearing required.

Question 7

Mathews v. Eldridge - procedural due process factors

Answer 7

To determine if procedural due process is satisfactory, examine:
1. The private interest at stake in the administrative action;
2. The risk of an erroneous deprivation, and the probable value, if any, of additional or substitute procedural safeguards; and
3. The government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.

Question 8

Goldberg - Contrasted with Eldridge

Answer 8

Family had welfare payments revoked and the original court held a hearing was required

Eldridge Court held
1. You could be wealthy and on disability, not the case on welfare
2. Little risk in mistake examining medical documents, but many on welfare may fill out re-evaluation paperwork improperly
3. The cost of a hearing every time would be very high and create a huge backlog because everyone would have an incentive to ask for one

Question 9

Hamdi v. Rumsfeld

Answer 9

US Citizen detained by military in Afghanistan as enemy combatant, argues due process requires a criminal trial

Rule: Due process guarantees that United States citizens held in the United States as enemy combatants must be given
1. Notice of the factual basis for his classification, and
2. a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker.

Majority holds the military can tailor how to achieve this standard

Scalia Dissent: Initiate a criminal trial now or release (prof likes)

Question 10

The beginning of substantive due process

Answer 10

Court begins the idea of substantive due process through the Interpretation of “liberty” in the 14th amendment

1. The government may pass a law which shrinks our zone of liberty in order to protect the public, BUT
2. The law must not be “arbitrary”, the government needs a reason to restrain liberty. Thus, arbitrary laws violate due process.

Question 11

Pierce v. Society of the Sisters

Answer 11

State of OR essentially bans private schools by mandating children attend public school

Court Holds the law is arbitrary
1. No reasonable relationship to a state interest is shown in this case.
2. There is no evidence that private education is harmful.
3. Thus, the Act unreasonably interferes with a constitutionally protected liberty interest.

The interest is the liberty of parents and guardians to direct their children’s education

Question 12

Lochner v. NY - Facts and holding

Answer 12

Facts
1. Lochner challenged the fine he received for his worker working over the statutory limit set by NY
2. He had procedural due process, but challenged the constitutionality of the law

Holding:
1. State law was arbitrary (being a baker is not dangerous) and interfered with “economic liberty”
2. State’s infringing on economic liberty must have a health or safety interest and the law must be connected to achieving those goals

Question 13

Lochner v. NY - Dissents and Note

Answer 13

Harlan dissent: Being a baker is dangerous and there is data to back that up

Holmes dissent: The court should not be making these decisions that are best suited for the legislature

Note: the problem with Holmes’s dissent is that sometimes the court needs to defend our rights that are infringed by the law

Question 14

West Coast Hotel - repudiation of economic liberty

Answer 14

Facts
1. Hotel was not paying minimum wage and a maid sued.
2. The hotel argued the minimum wage law violated “economic liberty”
3. Court holds the law constitutional

Rule: A state may regulate the minimum wage paid to female employees when that regulation is for the purpose of promoting employees’ health, safety and general welfare.

Question 15

State Farm v. Campbell

Answer 15

Dispute between parties to a car accident and the at-fault driver’s insurer for bad faith

Rule: Unlimited punitive damages violate substantive due process rights because they are arbitrary.

Question 16

Rights have two categories

Answer 16

1. Enumerated
   a. Bill of rights and amdmnts
   b. Rights in the main text of
   constitution
   i. Privileges and
   Immunities
   ii. Habeas Corpus (right to
   file writ in front of judge
   to dispute government
   detention)
2. Unenumerated - rights not spelled out in the constitution
   a. substantive due process
   using “liberty.”

Question 17

Griswold v. Connecticut - Summary and state reason

Answer 17

Summary
1. Planned parenthood managers arrested and convicted for providing contraception to married couples
2. Appealed court decision as unconstitutional under the 14th amendment

State reason
1. CT wanted no sex outside of marriage and no contraception within the marriage
2. State policy was to combat adultery
3. Adultery is associated with violence and conflict, harm to society

Question 18

Griswold v. Connecticut - Various holdings

Answer 18

Douglas - penumbras
1. majority holding
2. the right to privacy exists within the penumbras of the 1st, 3rd, 4th, 5th, and 9th amendments

Goldberg - 9th amendment

White - impermissible infringement

Dissenters (stewart/Black)
1. should not use the 9th amendment to strike down all kinds of laws.
2. the voters should be able to respond if they disagree

Question 19

Griswold - Harlan Concurrence

Answer 19

The liberty to make intimate choices protects the right to contraceptives

Test for unenumerated rights
1. Define whether unenumerated right exists
a. Be cautious and
incremental
b. Look to
i. Text of the constitution
ii. prior precedent, and
iii. History and tradition
iv. (natural law)
2. Define whether government action impermissibly infringes
a. Look at what the gov is
doing, no one has
absolute rights
b. Every right can be
restricted if the gov has a
good enough reason

Question 20

Buck v. Bell

Answer 20

Facts
1. Virginia law: if someone is in an institution, head of the institution can ask judge to give an order to sterilize the mentally challenged person
2. Ordered sterilized and Buck appeals

Court finds the law constitutional
1. “In this case, the right to reproduce as a mentally ill person is not a fundamental liberty.”
2. Court interprets the liberty narrowly: “reproduce as a mentally ill person,” rather than “reproduce.”

Question 21

Roe v. Wade - substantive due process test

Answer 21

Abortion protected under a right to “privacy” (extension of Griswold)

1. Txt: Blackmun argues every reference to the word “person” is postnatal
2. Precedent: Griswold
3. History: In the time of the framers, was not illegal by common law for a woman to self-induce abortion before “the quickening” 15-20 weeks

Strict scrutiny applies: Prior to end of the first trimester there is an “absolute right” to an abortion

Question 22

Roe v. Wade - Notes and Criticism

Answer 22

1. Blackmun based this reasoning regarding the trimesters off of the available medical science, but it reads like a statute
2. Downside is it looks like judicial legislation, but the upside is it provides a bright line rule
3. Some states want fetuses to be included in the term “person” and the word “privacy” is up for debate

Question 23

Casey - Roe Reaffirmed but Modified

Answer 23

Modified Roe in two ways:

1. Tied the right to abortion to “pre-viability” rather than the bright line trimester approach
2. Replaced Strict scrutiny with “undue burden”
   a. State can regulate as
   long as they don’t
   prohibit the abortion
   completely, and
   b. The rules do not create
   an “undue burden”

The new test allows for more regulation:
1. information before procedure
2. waiting period
3. court at least struck down needing husband’s permission

Question 24

Dobbs v. Jackson Women’s Health Org - Roe and Casey Overturned

Answer 24

Scalia: Going forward, constitutional challenges to state abortion regulations must be evaluated under rational-basis review.

1. History and tradition do not support a right to abortion
2. moral questions make this different from other “privacy” rights
3. “undue burden” test is ambiguous and unworkable

Question 25

Dobbs Dissent

Answer 25

Breyer; Sotomayor; Kagan: The Constitution cannot be read as frozen in time at the moment of its drafting. Rather, constitutional protections must evolve over time as the world evolves.

1. Will impact poor women the most
2. No reason to think the court is done eliminating rights
3. Shows no respect for precedent and no new facts cast doubt on the cases
4. Undermines the Court’s legitimacy

Question 26

Moore v. City of East Cleveland - Facts and Rule

Answer 26

1. East Cleveland has an ordinance: single family homes include a married couple, their kids, and parents. Single family homes can not have anyone else living there.
2. State Reason: prevent overcrowding/traffic

Rule: The right to define one’s family is fundamental

Question 27

Moore v. City of East Cleveland - Reasoning

Answer 27

1. Text - None here
2. Precedent - Belle Terre
   a. upheld similar
   ordinance because it was
   more broad “blood,
   adoption, or marriage”
   b. This law limits even
   blood relatives
3. History/Tradition: Tradition of extended family living together has been long and common

Apply strict scrutiny: Not compelling; Overbroad and underbroad
1. 5 year old kid is not driving, also
2. What about frat houses? (definition of family does not affect them)
3. Could simply ban overnight parking to solve congestion and crowding concerns

Question 28

Troxel v. Granville

Answer 28

1. A Washington statute permitted any person to petition a superior court in the state for visitation rights
2. Unconstitutional: Parent’s fundamental liberty interest in rearing his or her child.

J. O’Connor:
1. overbroad: No deference to the parent
2. No showing Granville is an unfit parent, or that she seeks to cut off visitation completely

Question 29

Lawrence v. Texas - Summary and reasonsings

Answer 29

1. TX law makes sodomy illegal for homosexuals but not heterosexuals
2. Fundamental right to individual decisions concerning the intimacies of a physical relationship.
3. Overturns Bowers v. Hardwick: allowing moral justifications for laws

J. Kennedy impliedly uses natural law (being homosexual is “an immutable trait”) and argues more recent history and tradition is more important to consider than history and tradition in total.

O’Connor concurrence wants to use EP to avoid overturning Bowers, majority thinks not enough

Question 30

Obergefell v. Hodges - Takeaways

Answer 30

1. More emphasis on modern “history and tradition” (like Lawrence v. Texas)
2. Shifts to libertarian view: “government, can you prove your infringement is justified?”
3. Similar to Bruen, where J. Thomas said the government must justify its limitation of one’s second amendment right to a firearm
4. Appears to break away from Washington v. Glucksberg, “too backward-looking”

Question 31

Washington v. Glucksberg test (Griswold w/ specificity)

Answer 31

1. Identify the right with specificity
2. Is this a “fundamental part of liberty?”
   a. Text
   b. Precedent
   c. History/tradition
   d. [Natural law]
3. Yes: Apply strict scrutiny
4. No: Rational review (remember, no moral reasons even under lowest standard)

Question 32

Obergefell - Rule and Reasoning

Answer 32

Marriage is a fundamental right protected by the Due Process Clause.
1. “inherent to autonomy” and “keystone of our social order”
2. Precedent shows protections of marriage (Loving and Zablocki)
3. Marriage has evolved overtime (status of women) and societal view of homosexuality (Lawrence v. Texas)

Same-sex marriage bans also violate equal protection
1. Taxation and insurance benefits,
2. intestate succession,
3. spousal evidentiary privileges, and
4. child custody and support,

Dissent: States should decide

Question 33

Masterpiece Cakeshop v. Colorado Civil Rights Commission

Answer 33

Rule: Adjudicatory proceedings against a person for unlawful discrimination must give neutral and respectful consideration to the person’s defense of sincere religious motivation.