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Constitutional Law > Due Process > Flashcards

Due Process Flashcards

1
Q

When you see what is the best source for an argument that a particular law is unconstitutional, look for

A

ask whether the constitutional provision protects from the states or from the federal government.

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2
Q

If the Federal government is discriminating against the states, what should be invoked?

A

Against the states, the 14th Amendment Due Process Clause should be invoked

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3
Q

If the federal government is discriminating, what should be invoked?

A

Due process clause of fifth amendment

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4
Q

There are just three provisions of the Bill of Rights that cannot be asserted via the 14th Amendment Due Process Clause:

A
  1. 5th amendment right to indictment by a grand jury
  2. 7th amendment: right to a jury trial in a civil case
  3. 8th amendment: excessive fines clause
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5
Q

For discrimination by state governments, usually apply the

A

14th amendment

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6
Q

If States are discriminating against visitors, what should be invoked

A

article 4 privileges and immunities

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7
Q

If states are discriminating against migrants, people who want to move ther

A

Privileges or immunities clause of 14th amendment

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8
Q

Procedural Due Process protects

A
  1. persons against
  2. deprivations of live liberty or property;
  3. without due process of law
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9
Q

Who is a person who can receive procedural due process

A
  1. all people (> citizen)

2. corporations

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10
Q

What is a liberty interest?

A

Anything you want to do you have a liberty interest in doing

  • Prison
  • Physical punishment
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11
Q

What is a property interest?

A

Public education
Public employment if (termination for cause or tenured, ≠ at will)
Welfare benefits
Driver’s licenses

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12
Q

What is a life interest?

A

Your life, comes in if gov’t tries to kill you

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13
Q

What process is due? What kind of procedure does the government have to follow in order to be able to deprive a person or corporation of life, liberty or property?
(2)

A
  1. Adequate Notice

2. Adequate Opportunity to be heard

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14
Q

To determine what is adequate notice and what is an adequate hearing, the court will balance three factors
(3)

A
  1. importance of the protected interest;
  2. risk of error with the procedures used and the probable value of other procedures
  3. how burdensome is it on the gov’t to provide with procedural protection
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15
Q

Economic regulation by the states or the federal government only has to meet what test?

A

Rational basis review

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16
Q

if the government wants to regulate personal rights, then it has to meet what test?

A

Strict Scrutiny

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17
Q

Strict Scrutiny requires the government to show?

A

The government must show

Compelling interest (very important)
\+
Actual motive behind government action
\+
No other way to achieve the interest(necessary)
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18
Q

Rational Basis Review requires?

A

The burden is on πto show that the law is not rationally related to any legitimate purpose

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19
Q

Fundamental privacy rights

8

A
  1. Sexual orientation
  2. contraception
  3. Abortion
  4. Marriage
  5. Family relations
  6. Private Education
  7. Possession of Obscene Material
  8. Refusal of medical procedures
20
Q

Right to contraception includes

A

fundamental right to buy and use

21
Q

What is the test for an elective abortion?

A

Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.

22
Q

Examples of undue burden for abortions

A
  1. total ban
  2. requiring spousal consent
  3. requiring spouse to notify husband
  4. recording patient names
  5. parental consent without judicial bypass
23
Q

Examples that do not create undue burden for abortions

A
  1. parental consent with judicial bypass
  2. 24 hour waiting period
  3. Truthful non-misleading information
  4. Refusing public funds
  5. Ban on certain methods if they are not the safest
24
Q

What is the test for an protective abortion?

A

Any abortion restriction must have a life-health exception

25
Q

What is the right to family relations?

A

The government cannot prohibit members of an extended family from living in a single household.

26
Q

What is the sexual orientation right?

A

government cannot criminalize same sex sexual acitivity

27
Q

What is the test use for the sexual orientation right?

A

rational basis

However, there’s no legitimate interest in this for the state

28
Q

Is there a federal right to same sex marriage?

A

No

29
Q

Does a state have to recognize a same sex marriage from other states?

A

No

30
Q

What is the right to education?

A

There is a right to go to private schools

31
Q

What is the right to obsess obscene materials?

A

Can poses within your home

≠child porn

32
Q

What is the right to refuse medical procedures?

A

Can refuse any medical procedure even if it results in death

33
Q

Right to travel is protected by

A 
The 14th Amendment Privileges and Immunities Clause allows every citizen to travel freely from state to state
\+
to set up residency in a new state. 
\+
International travel can be restricted
34
Q

The right to vote is covered by

4

A

15th amendment: no race discrimination

19th amendment: no sex discrimination

24th amendment: no poll taxes in a federal election (nor states)

26th amendment: no age discrimination above 18

35
Q

Level of right to vote test

A

If total ban: strict scrutiny

If makes it harder(procedural): gov’t must be important + no undue burdern

36
Q

Voting regulations that are okay?

A
  1. reasonable residency requirements
  2. reasonable registration requirements
  3. reasonable time and manner regulations
  4. felons can be denied the right to vote
37
Q

Voting restrictions that are unconstitutional?

A
  1. no poll tax
  2. limiting school board elections to only parents and property owners
  3. Counting votes using standards that are vague or uniform
  4. Making you register as a political party for a general election
38
Q

How does presidential elections work?

A

Electors pledge their votes

39
Q

Where is the takings clause?

A

5th amendment

40
Q

Two kinds of takings

A
  1. direct government appropriation;

2. regulatory taking

41
Q

Direct government appropriation occurs

A

when the government actually takes your property

42
Q

What is a regulatory taking?

A

The regulation is so onerous that it amounts to appropriation

43
Q

Types of regulatory takings

3

A
  1. Permanent physical invasion (no matter how minor)
  2. Deprivation of all economically beneficial use
  3. Balancing (economic impact, character of government action)
44
Q

What is the limit on the government takings power

A

Must be taken for a public purpose but this is very broad (includes given to private developer)

45
Q

What recourse is available in light of a taking?

A

fair market value

Generally not injunctions

46
Q

When is procedural due process required?

A

Where there is a deprivation of one’s life, liberty, or property interest.

47
Q

Does injury to reputation trigger procedural due process?

A

No

Constitutional Law (9 decks)

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