Due Process Flashcards
What should you look for when assessing the best source for an argument that a particular law is unconstitutional?
Whether the Constitutional provision protects a person from state actors 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.
More Info: Privileges and Immunities Clause
What does Procedural Due Process protect?
It protects persons against deprivations of life, liberty, or property without due process of law.
More Info: Procedural Due Process
Who is a person with the right to receive procedural due process?
- All people (> citizen)
And
- Corporations
What is a liberty interest?
Anything that you want to do you have a liberty interest in doing. A liberty interest is compromised by imprisonment and physical punishment.
List the procedural due process property interests?
- Public education
- Public employment if: termination for cause or tenured, ≠ at will
- Welfare benefits
- Driver’s licenses
* More Info:* Due Process Property Interests
What is a life interest?
The interest in your life when the government seeks capital punishment.
What process is due? In other words, what procedures must the government follow in order to be able to deprive a person or corporation of life, liberty or property?
The government must give a person or corporation:
- Adequate notice to the plaintiff
And
- Adequate opportunity for plaintiff to be heard
To determine what constitutes adequate notice and hearing, the court must consider what three factors?
- Importance of the protected interest
- Risk of error with the procedures used and the probable value of other/additional procedures
- How burdensome it is on the government to provide the procedural protections
The economic regulation of private citizens and companies by both the states and the Federal Government only has to meet what test?
Rational Basis Review
If the government wants to regulate personal rights, what test must be meet?
Strict Scrutiny
What must the government show in order to pass the strict scrutiny standard?
The government must show that there is a compelling interest (very important), that the interest is the actual motive behind government action, and that there is no other way to achieve the interest (necessary).
More Info: Strict Scrutiny
What is the rational basis review test? Who bears the burden of persuassion?
The burden of persuassion is on the plaintiff to show that the law is not rationally related to any legitimate government purpose.
More Info: Rational Basis Review
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 which place an undue burden on 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 which do not place an undue burden on abortion access.
- Parental consent with judicial bypass option
- 24 hour waiting period
- Truthful and non-misleading information
- Refusing public funds
- Ban on certain methods if they are not the safest
What must any abortion restriction contain?
Any abortion restriction must have a life-health exception.
More Info: The Life-Health Exception
What is meant by the right to family relations?
The government cannot prohibit members of an extended family from living in a single household.
What is meant by the right to sexual orientation?
The government cannot criminalize same sex sexual acitivity.
What is the test applied when a law attempts to regulates sexual orientation?
Rational basis; however, there’s never a legitimate interest for a state actor to regulate sexual orientation, so it will fail rational basis review.
What is meant by the right to education?
There is a right to enroll in private schools.
What is meant by the right to possess obscene materials?
A person can possess the obscene material within their home. However, there is never a right to possess child pornography.
What is meant by 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 constitutional amendment?
The 14th Amendment Privileges and Immunities Clause allows every citizen to travel freely from state to state and to set up residency in a new state. However, international travel can be restricted
Which amendments protect the right to vote?
15th Amendment: no racial 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 places a total ban on voting rights, then the strict scrutiny standard is applied.
If the law makes it harder procedurally to vote, then the government’s interest must be important and impose no undue burdern on the right to vote.
List four examples of valid voting regulations.
- Reasonable residency requirements
- Reasonable registration requirements
- Reasonable time and manner regulations
- Felons can be denied the right to vote
List 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 overly vague
- 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 addressed by the Takings Clause?
- Direct government appropriations
- Regulatory takings
When does direct government appropriation occur?
When the government actually takes possession of private property.
What is a regulatory taking?
A regulation that 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
* More Info:* Regulatory Takings
What is the limit on the government’s takings power?
The land must be taken for a public purpose; however, the requirement is construed very broadly, and it may be satisfied even when the land is given to a private developer.
What recourse is available to a property owner facing a government taking?
The property owner can recieve the fair market value of the property as compensation. The owner generally cannot get an injunction to prevent the taking.
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.
