Due Process Flashcards
What should you look for when examining what the best source for an argument that a particular law is unconstitutional?
Whether the Constitutional provision protects a person from the states or from the Federal government.
If the Federal government is discriminating against the states, what should be invoked?
The 14th Amendment Due Process Clause should be invoked.
If the Federal government is discriminating against citizens, what should be invoked?
The due process clause of 5th Amendment.
What provisions of the Bill of Rights are not incorporated to the states through 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.
What constitutional analysis should you apply for discrimination by state governments?
14th Amendment.
What is the Constitutional argument against states discriminating against visitors?
Article 4: Privileges and Immunities Clause
What is the Constitutional argument against states discriminating against non-state citizens from moving to their state?
Privileges or immunities clause of 14th Amendment.
Procedural Due Process protects?
Persons against deprivations of life liberty or property without due process of law.
Define who is a person with the right receive procedural due process?
- all people (> citizen);
- corporations.
What is a liberty interest?
Anything you want to do you have a liberty interest in doing. The Liberty interest is compromised by imprisonment and physical punishment.
List procedural due process property interest?
- Public education;
- Public employment if (termination for cause or tenured, ≠ at will); (3) Welfare benefits;
(4) Driver’s licenses.
What is a life interest?
The interest in your life when the government seeks capital punishment.
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?
The government must give:
- Adequate Nnotice to π; and,
- Adequate opportunity for π to be heard.
To determine what is adequate notice and what is an adequate hearing, the court will balance what three factors?
- 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?
Economic regulation of private citizens and companies by the states or the Federal government only has to meet what test?
Rational Basis Review
If the government wants to regulate personal rights, what test does it have to meet?
Strict Scrutiny
Strict scrutiny requires the government to show?
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).
What does rational basis review require?
The burden is on π to show that the law is not rationally related to any legitimate government purpose.
List the fundamental privacy rights?
- Sexual orientation;
- Contraception;
- Abortion;
- Marriage;
- Family relations;
- Private Education;
- Possession of Obscene Material;
- Refusal of medical procedures.
What does the right to contraception protect?
The fundamental right to buy and use contraception.
When is an elective abortion law unconstitutional?
Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.
List five examples of laws causing an undue burden for abortion access.
- A total ban on abortions;
- Requiring spousal consent;
- Requiring spouse to notify husband;
- Recording patient names;
- Parental consent without a judicial bypass.
List five examples of laws NOT causing an undue burden for abortion access.
- 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 must any abortion regulation contain?
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 right to sexual orientation?
The government cannot criminalize same sex sexual acitivity.
What is the test used when a law regulates the sexual orientation right?
Rational basis; however, there’s never a legitimate interest in regulating for a state.
What is the right to education?
There is a right to enroll in private schools.
What is the right to posess obscene materials?
A person can poses the material within their home(≠ child pornography)
What is the right to refuse medical procedures?
A person has the right refuse any medical procedure even if it results in death
The right to travel is protected by which amendment?
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
Which amendments protect the right to vote?
15th Amendment: no race discrimination;
19th Amendment: no sex discrimination;
24th Amendment: no poll taxes;
26th Amendment: no age discrimination above 18.
What is the level of scrutiny applied to voting legislation?
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.
Four examples of valid voting regulations?
- Reasonable residency requirements;
- Reasonable registration requirements;
- Reasonable time and manner regulations; and,
- Felons can be denied the right to vote.
Four examples of voting restrictions that are unconstitutional?
- Poll taxes;
- Limiting school board elections to only parents and property owners;
- Counting votes using standards that are vague; and,
- Requiring political party registration for a general election.
How is the president elected?
Electors pledge their votes.
Where is the takings clause?
The 5th Amendment.
What are the two types of takings?
- Direct government appropriation; and,
- Regulatory taking.
When does direct government appropriation occur?
When the government actually takes possession of private property.
What is a regulatory taking?
A regulation is so onerous that it amounts to appropriation.
List the two types of regulatory takings.
If the regulation causes a:
- Permanent physical invasion (no matter how minor); or,
- Deprivation of all economically beneficial use of the property.
What is the limit on the government takings power?
The land must be taken for a public purpose; however, the requirement is very broad (it includes given to private developer).
What recourse is available in light of a taking?
Property owner can recieve fair market value compensation. Owner generally cannot get an injunction.
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.
