Due Process Flashcards
When you see what is the best source for an argument that a particular law is unconstitutional, look for
ask whether the constitutional provision protects from the states or from the federal government.
If the Federal government is discriminating against the states, what should be invoked?
Against the states, the 14th Amendment Due Process Clause should be invoked
If the federal government is discriminating, what should be invoked?
Due process clause of fifth amendment
There are just three provisions of the Bill of Rights that cannot be asserted via the 14th Amendment Due Process Clause:
- 5th amendment right to indictment by a grand jury
- 7th amendment: right to a jury trial in a civil case
- 8th amendment: excessive fines clause
For discrimination by state governments, usually apply the
14th amendment
If States are discriminating against visitors, what should be invoked
article 4 privileges and immunities
If states are discriminating against migrants, people who want to move ther
Privileges or immunities clause of 14th amendment
Procedural Due Process protects
- persons against
- deprivations of live liberty or property;
- without due process of law
Who is a person who can receive procedural due process
- all people (> citizen)
2. corporations
What is a liberty interest?
Anything you want to do you have a liberty interest in doing
- Prison
- Physical punishment
What is a property interest?
Public education
Public employment if (termination for cause or tenured, ≠ at will)
Welfare benefits
Driver’s licenses
What is a life interest?
Your life, comes in if gov’t tries to kill you
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)
- Adequate Notice
2. Adequate Opportunity to be heard
To determine what is adequate notice and what is an adequate hearing, the court will balance three factors
(3)
- importance of the protected interest;
- risk of error with the procedures used and the probable value of other procedures
- how burdensome is it on the gov’t to provide with procedural protection
Economic regulation by the states or the federal government only has to meet what test?
Rational basis review
if the government wants to regulate personal rights, then it has to meet what test?
Strict Scrutiny
Strict Scrutiny requires the government to show?
The government must show
Compelling interest (very important) \+ Actual motive behind government action \+ No other way to achieve the interest(necessary)
Rational Basis Review requires?
The burden is on πto show that the law is not rationally related to any legitimate purpose
Fundamental privacy rights
8
- Sexual orientation
- contraception
- Abortion
- Marriage
- Family relations
- Private Education
- Possession of Obscene Material
- Refusal of medical procedures
Right to contraception includes
fundamental right to buy and use
What is the test for an elective abortion?
Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.
Examples of undue burden for abortions
- total ban
- requiring spousal consent
- requiring spouse to notify husband
- recording patient names
- parental consent without judicial bypass
Examples that do not create undue burden for abortions
- parental consent with judicial bypass
- 24 hour waiting period
- Truthful non-misleading information
- Refusing public funds
- Ban on certain methods if they are not the safest
What is the test for an protective abortion?
Any abortion restriction must have a life-health exception
What is the right to family relations?
The government cannot prohibit members of an extended family from living in a single household.
What is the sexual orientation right?
government cannot criminalize same sex sexual acitivity
What is the test use for the sexual orientation right?
rational basis
However, there’s no legitimate interest in this for the state
Is there a federal right to same sex marriage?
No
Does a state have to recognize a same sex marriage from other states?
No
What is the right to education?
There is a right to go to private schools
What is the right to obsess obscene materials?
Can poses within your home
≠child porn
What is the right to refuse medical procedures?
Can refuse any medical procedure even if it results in death
Right to travel is protected by
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
The right to vote is covered by
4
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
Level of right to vote test
If total ban: strict scrutiny
If makes it harder(procedural): gov’t must be important + no undue burdern
Voting regulations that are okay?
- reasonable residency requirements
- reasonable registration requirements
- reasonable time and manner regulations
- felons can be denied the right to vote
Voting restrictions that are unconstitutional?
- no poll tax
- limiting school board elections to only parents and property owners
- Counting votes using standards that are vague or uniform
- Making you register as a political party for a general election
How does presidential elections work?
Electors pledge their votes
Where is the takings clause?
5th amendment
Two kinds of takings
- direct government appropriation;
2. regulatory taking
Direct government appropriation occurs
when the government actually takes your property
What is a regulatory taking?
The regulation is so onerous that it amounts to appropriation
Types of regulatory takings
3
- Permanent physical invasion (no matter how minor)
- Deprivation of all economically beneficial use
- Balancing (economic impact, character of government action)
What is the limit on the government takings power
Must be taken for a public purpose but this is very broad (includes given to private developer)
What recourse is available in light of a taking?
fair market value
Generally not injunctions
When is procedural due process required?
Where there is a deprivation of one’s life, liberty, or property interest.
Does injury to reputation trigger procedural due process?
No
