Due Process

Question 1

Substantive Due Process

Answer 1

Limits governments ability to regulate certain areas of human life, such as the substantive interest in life, liberty, or property.

Question 2

Substantive Due Process- Fundamental Rights

Answer 2

Fundamental rights are subject to strict scrutiny. Strict scrutiny: government action must be necessary to achieve a compelling government objective. E.g., right to marry, procreate, custody

Question 3

Right to Abortion

Answer 3

Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortion. After viability, states may prohibit abortions unless necessary to protect the woman’s life or health

Question 4

Substantive Due Process- Nonfundamental Rights

Answer 4

Applies to everything else, but typically social and economic regulations. Rational basis test applies to nonfundamental rights. The government action need only be rationally related to achieve a legitimate government objective.

Question 5

Procedural Due Process

Answer 5

Requires the government to use fair process before depriving a person of life, liberty, or property. Liberty interest: a deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. Property interest: a deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled

Question 6

Procedural Due Process- Process Due

Answer 6

For judicial proceedings: right to a hearing, counsel, call witnesses, a fair trial, and appeal. For nonjudicial proceedings, balancing test: 1) the private interest that will be affected by the government action, 2) the risk of error due to the procedural safeguards used and the possibility of substitute procedural safeguards, and 3) the government’s interest in fiscal and administrative burdens that the substitute procedural safeguards would cause, including the public interest