Due Process

Question 1

What should you look for when examining what the best source for an argument that a particular law is unconstitutional?

Answer 1

Whether the Constitutional provision protects a person from the states or from the Federal government.

Question 2

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

Answer 2

The 14th Amendment Due Process Clause should be invoked.

Question 3

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

Answer 3

The due process clause of 5th Amendment.

Question 4

What provisions of the Bill of Rights are not incorporated to the states through the 14th Amendment Due Process Clause?

Answer 4

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.

Question 5

What constitutional analysis should you apply for discrimination by state governments?

Answer 5

14th Amendment.

Question 6

What is the Constitutional argument against states discriminating against visitors?

Answer 6

Article 4: Privileges and Immunities Clause

Question 7

What is the Constitutional argument against states discriminating against non-state citizens from moving to their state?

Answer 7

Privileges or immunities clause of 14th Amendment.

Question 8

Procedural Due Process protects?

Answer 8

Persons against deprivations of life liberty or property without due process of law.

Question 9

Define who is a person with the right receive procedural due process?

Answer 9

1. all people (> citizen);
2. corporations.

Question 10

What is a liberty interest?

Answer 10

Anything you want to do you have a liberty interest in doing. The Liberty interest is compromised by imprisonment and physical punishment.

Question 11

List procedural due process property interest?

Answer 11

1. Public education;
2. Public employment if (termination for cause or tenured, ≠ at will); (3) Welfare benefits;
   (4) Driver’s licenses.

Question 12

What is a life interest?

Answer 12

The interest in your life when the government seeks capital punishment.

Question 13

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?

Answer 13

The government must give:

1. Adequate Nnotice to π; and,
2. Adequate opportunity for π to be heard.

Question 14

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

Answer 14

1. importance of the protected interest;2. risk of error with the procedures used and the probable value of other procedures; and, 3. how burdensome is it on the government to provide with procedural protection?

Question 15

Economic regulation of private citizens and companies by the states or the Federal government only has to meet what test?

Answer 15

Rational Basis Review

Question 16

If the government wants to regulate personal rights, what test does it have to meet?

Answer 16

Strict Scrutiny

Question 17

Strict scrutiny requires the government to show?

Answer 17

The government must show Compelling interest (very important)+

Interest is the actual motive behind government action+

There is no other way to achieve the interest(necessary).

Question 18

What does rational basis review require?

Answer 18

The burden is on π to show that the law is not rationally related to any legitimate government purpose.

Question 19

List the fundamental privacy rights?

Answer 19

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.

Question 20

What does the right to contraception protect?

Answer 20

The fundamental right to buy and use contraception.

Question 21

When is an elective abortion law unconstitutional?

Answer 21

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

Question 22

List five examples of laws causing an undue burden for abortion access.

Answer 22

1. A total ban on abortions;
2. Requiring spousal consent;
3. Requiring spouse to notify husband;
4. Recording patient names;
5. Parental consent without a judicial bypass.

Question 23

List five examples of laws NOT causing an undue burden for abortion access.

Answer 23

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.

Question 24

What must any abortion regulation contain?

Answer 24

Any abortion restriction must have a life-health exception.

Question 25

What is the right to family relations?

Answer 25

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

Question 26

What is the right to sexual orientation?

Answer 26

The government cannot criminalize same sex sexual acitivity.

Question 27

What is the test used when a law regulates the sexual orientation right?

Answer 27

Rational basis; however, there’s never a legitimate interest in regulating for a state.

Question 28

What is the right to education?

Answer 28

There is a right to enroll in private schools.

Question 29

What is the right to posess obscene materials?

Answer 29

A person can poses the material within their home(≠ child pornography)

Question 30

What is the right to refuse medical procedures?

Answer 30

A person has the right refuse any medical procedure even if it results in death

Question 31

The right to travel is protected by which amendment?

Answer 31

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. However, International travel can be restricted

Question 32

Which amendments protect the right to vote?

Answer 32

15th Amendment: no race discrimination;

19th Amendment: no sex discrimination;

24th Amendment: no poll taxes;

26th Amendment: no age discrimination above 18.

Question 33

What is the level of scrutiny applied to voting legislation?

Answer 33

If the law is a total ban on voting: strict scrutiny.

If makes it harder procedurally to vote: government’s interest must be important + impose no undue burdern.

Question 34

Four examples of valid voting regulations?

Answer 34

1. Reasonable residency requirements;
2. Reasonable registration requirements;
3. Reasonable time and manner regulations; and,
4. Felons can be denied the right to vote.

Question 35

Four examples of voting restrictions that are unconstitutional?

Answer 35

1. Poll taxes;
2. Limiting school board elections to only parents and property owners;
3. Counting votes using standards that are vague; and,
4. Requiring political party registration for a general election.

Question 36

How is the president elected?

Answer 36

Electors pledge their votes.

Question 37

Where is the takings clause?

Answer 37

The 5th Amendment.

Question 38

What are the two types of takings?

Answer 38

1. Direct government appropriation; and,
2. Regulatory taking.

Question 39

When does direct government appropriation occur?

Answer 39

When the government actually takes possession of private property.

Question 40

What is a regulatory taking?

Answer 40

A regulation is so onerous that it amounts to appropriation.

Question 41

List the two types of regulatory takings.

Answer 41

If the regulation causes a:

1. Permanent physical invasion (no matter how minor); or,
2. Deprivation of all economically beneficial use of the property.

Question 42

What is the limit on the government takings power?

Answer 42

The land must be taken for a public purpose; however, the requirement is very broad (it includes given to private developer).

Question 43

What recourse is available in light of a taking?

Answer 43

Property owner can recieve fair market value compensation. Owner generally cannot get an injunction.

Question 44

When is procedural due process required?

Answer 44

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

Question 45

Does injury to reputation trigger procedural due process?

Answer 45

No.