Due Process

Question 1

What is the difference between the 5th Amendment and the 14th Amendment in terms of Due Process?

Answer 1

No person shall be deprived of life, liberty, or property without due process…

The 5th Amendment applies on a Federal level

The 14th Amendment is the same, but applies to the States

Question 2

T/F: Procedural Due Process applies uniformly across the board. For example, a defendant facing a small civil fine is afforded the same process as a defendant facing the death penalty

Answer 2

False - * It’s not one size fits all

Question 3

When determining whether Procedural Due Process applies, what is the main question?

Answer 3

Is there a deprivation of life, liberty, or property taking place?

Question 4

Mathews v. Eldridge (1976) put forward 3 main factors used in determining whether a person’s procedural due process rights are being unduly burdened. What are they?

Context (Hint): Plaintiff had SSA disability payments stopped without a hearing. The individual need is less than a welfare recipient, they can still find other forms of government assistance. There are clear procedural guidelines to follow. There is a big burden in increasing hearings and continuing to pay ineligible recipients until a hearing can be had

Answer 4

(1) The private interest at stake

(2) The risk of an erroneous deprivation of such interests through the procedures used and the probable value of additional or substitute procedures

(3) Government’s interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirement would entail

Question 5

In Goldberg v. Kelly, the plaintiff had welfare stopped without a hearing. Yet unlike the Plaintiff in Mathews v. Eldridge, the court determined that a pre-termination hearing was necessary to provide adequate due process. What made the difference?

Hint: Apply the Mathews Factors

Answer 5

(1) Welfare is the only source of income here, bigger impact

(2) Process only done by mail, easy for illiterate welfare recipients to fall through cracks

(3) Welfare might be the only option; government doesn’t want people on the streets

Question 6

In Cleveland Board of Education v. Loudermill (1985), The Board discovered that Loudermill had been convicted of a felony and he was terminated for dishonesty in his application. He was not given an opportunity to respond to the charges of dishonesty or to challenge his termination.

Did this violate Loudermill’s Procedural Due Process rights? Why or Why not?

Answer 6

Yes - Ask: Is there a deprivation of life, liberty, or property taking place?

Due Process for government employees includes a property interest in their employment, requiring a limited pre-termination hearing before discharge for cause

Question 7

T/F: Due process guarantees that United States citizens held in the United States as enemy combatants must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker

Answer 7

True

Hamdi v. Rumsfeld (2004)

Question 8

T/F: Substantive Due Process, as an enumerated right, gets its power from the text of the 14th amendment

Answer 8

False - its an “unenumerated” right stemming mostly from the word “liberty” as it appears in the 14th amendment

Question 9

The “Test” for Substantive Due Process is derived from multiple cases (mostly Harlan’s concurrence in Griswold and Washington v. Glucksberg).

What is the framework of the test?

Answer 9

Define the “right” issue at hand
(1) Identify the potential right with some specificity
Look at Text
Look at Precedent
Is it deeply rooted in History + Tradition?
Natural Law

(2) Apply Strict Scrutiny
Compelling Government Interest being advanced?
Narrowly tailored to do the advancing?

Question 10

In West Coast Hotel Co. v. Parrish (1937):

The State of Washington passed a law which regulated the minimum wages paid to female and minor employees. West Coast Hotel wasn’t paying the minimum and got sued. The Court held that 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.

Apply the Substantive Due Process framework (as shown in Griswold & Washington v. Glucksberg) to understand how it may have worked with this older case.

Hint: You won’t find this one in your notes - this is an exercise in understanding the Substantive Framework

Answer 10

(1) Potential Right at issue
Economic Liberty to pay employees whatever is agreed upon between the employer/employee?

(2) Apply Strict Scrutiny
There is a compelling government interest in protecting the health and welfare of women and children (especially against being exploited)

The State minimum wage law is narrowly tailored specifically to address the compelling interest outlined above

Question 11

What case was about a law that mandated public school attendance in Oregon that the Supreme Court shot down as an arbitrary violation of due process?

What is the takeaway relating to parental rights?

Answer 11

Pierce v. Society of the Sisters (1925)

Parents have the right to choose how their child is educated

Question 12

May a state court grant visitation rights to a person if those visitation rights are opposed by the child’s parent?

What case provides the answer here?

Answer 12

No

Troxel v. Granville
Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child

Question 13

If an implied “right of privacy” exists within the Constitution, where would it be found?

(Hint: sort of a subjective answer because law is fluid but much discussion on the issue happened in Griswold v. Connecticut)

Answer 13

Within the idea of “liberty” as part of the 14th amendment. Or alternatively, the 9th amendment which basically says enumerated rights shall not be construed to deny other rights retained by the people.

Question 14

T/F: The Court in Roe v. Wade found that a woman’s right to choose to have an abortion is supported constitutionally as within “the right to privacy”

Answer 14

True

Although this was overturned by Dobbs v. Jackson which said that the Constitution does not confer a right to abortion, rather, it is left to the states to regulate

Question 15

T/F: The right of related family members to live together is fundamental and protected by the Due Process Clause

Answer 15

True

Moore v. City of East Cleveland (1977)
Although the limitations on occupancy all have legitimate public purposes, the housing ordinance serves them only marginally and is not necessary to their accomplishment

Question 16

T/F: Lawrence v. Texas narrowed the constitutional interpretation of “the right of privacy”

Answer 16

False

The Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship (including same-sex)

Question 17

T/F: State statues must further a legitimate state interest when impacting an individual’s “liberty” if it is going to survive a due process challenge

Answer 17

True

Lawrence v. Texas (2003)
The statute in this case furthers no legitimate state interest that can justify its intrusion into the personal and private life of the individual

Question 18

What case determined that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples?

Answer 18

Obergefell v. Hodges (2015)

Question 19

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a baker had religious objections to making a cake for a gay marriage. In reversing the Colorado Court of Appeals decision, the US Supreme Court supported the baker’s right to refuse on grounds of religious freedom.

What type of consideration must be given to a religious freedom defense in a discrimination case?

Answer 19

“neutral and respectful”

In this case, the baker had offered to sell the couple other goods, just not a wedding cake specifically for religious reasons. Further, the Colorado Commission demonstrated hostility toward religion’s role in public life (showing that they were not being neutral or respectful)

Question 20

According to the Court in Washington v. Glucksberg, to be a protected fundamental right, at a minimum, a right must be

(1) objectively, deeply rooted in the nation’s history and traditions and implicit in the concept of ordered liberty and
(2) described and refined carefully

Is there a fundamental right to assisted suicide that is protected by the Due Process Clause?

Answer 20

No (according to the Court in this case)

A general right to die is not refined and specific enough to be a fundamental right. Rather, a carefully described right would be the right to assisted suicide. However, there is no right to assisted suicide that is deeply rooted in the nation’s history and traditions. To the contrary, in the United States, there is a common-law tradition of criminalizing or prohibiting assisted suicide that extends back to colonial times.

Question 21

T/F: Awards of punitive damages by state courts that exceed a single-digit ratio between punitive damages and compensatory damages are usually “grossly excessive” and violate the Due Process Clause of the Fourteenth Amendment

Answer 21

True

State Farm v. Campbell (2003)
Plaintiff awarded $1M in compensatory damages and $145M in punitive damages