Due Process and Incorporation

Question 0

Exam question asks whether a law is constitutional, what should you look for?

Answer 0

Look for the actual content of the individual rights in question.

Question 1

When an exam question asks “What is the best source for an argument that a particular law is unconstitutional” What should you ask?

Answer 1

Whether the constitutional provision protects from the states or the federal government.

Question 2

The bill of rights can be invoked against the federal government when…

Answer 2

The Federal government is acting.

When it is discriminating, the 5th amendment due process clause should be invoked.

Question 3

What clause should been invoked when the states are acting.

Answer 3

The due process clause of the 14th amendment should be invoked

Question 4

What 3 provisions of the bill of rights cannot be invoked against the states via the 14th amendment due process clause.

Answer 4

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

Question 5

When will the 14th amendment equal protection clause NOT apply to state discrimination.

Answer 5

1. Discrimination against out of state persons - VISITORS - 4th Amendment Privileges and Immunities will apply.
2. Right to travel restrictions - Privileges and immunities provision of the 14th amendment will apply - waiting period for unemployment benifits.

Question 6

What do both due process clauses, 14th and 5th provide?

Answer 6

Procedural Due Process

Substantive Due Process

Question 7

Procedural Due Process - Defined

Answer 7

Protects persons against deprivation of 
Life
Liberty
Property
Protects all people - corporations too
without due process of law

Question 8

What is the meaning of Liberty protected by procedural due process

Answer 8

Deprivation of freedom or physical punishment by the state

Bodily restraint
physical punishment

Question 9

What is the meaning of property protected by procedural due process

Answer 9

Property interests will include public education, public employment, welfare Benefits, Drivers license

Tenured employment or termination for cause = property interest
At will employment - no property interest

Question 10

What conditions of public employment will constitute a property right protected by procedural due process

Answer 10

Tenure or termination for cause in an employment agreement will constitute a property interests.

At will employment will not.

Question 11

What process is due to deprive someone of life, liberty or property?

Answer 11

adequate NOTICE
and
adequate HEARING

Question 12

Test to determine if adequate notice and adequate hearing have been met:

Answer 12

Balancing Test

Importance of the protected interest
Risk of error

against

Burden of the government to provide procedural protections

Question 13

Substantive Due Process - Economic Regulation

Answer 13

Challenges to economic regulation subject to rational basis scrutiny.

Regulation will be upheld if it is rationally related to any legitimate government interest.

Question 14

Substantive Due Process - Fundamental Rights - In General

Answer 14

Where the government interferes or attempts to regulate fundamental rights of personhood. Such regulation will be subject to strict scrutiny or other heightened scrutiny.

Question 15

SDP - Abortion

Answer 15

Woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. Regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.

Question 16

Examples of an undue burden on the right to choose an abortion - list 5

Answer 16

Total Ban
Spousal Consent
Spousal Notification
Recording of patient names
Parental Consent without judicial by pass

Question 17

Not an undue burden on a woman’s right to choose an abortion.

List 5 Examples

Answer 17

Parental consent WITH judicial by-pass
24 hour waiting period
truthful non-misleading information
refusal to provide public funds
ban on methods if not the safest

Question 18

Unconstitutional restriction on abortion even post viability

Answer 18

Any restriction that does not provide for an exception for the life and health of the mother.

The state cannot force a mother to carry a fetus to term if it threatens the health of the mother

Question 19

SDP - Family Relations

Answer 19

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

Can ban unrelated persons from living together in a single family residence

Question 20

SDP - Sexual Orientation

Answer 20

The government cannot criminalize same sex sexual activity.

Strict Scrutiny not applied - rational basis review

Question 21

Federal right to same sex marriage or recognition of same sex marriage

Answer 21

There is no federal right to same sex marriage

States are free to recognize same sex marriages from other states at their discretion.

Question 22

SDP - Private Education

Answer 22

Government cannot prevent parents from sending children to private school or require children to attend public school

Question 23

SDP - Possession of Obscene Material

Answer 23

There is a right to possess obscene material in your own home.

No right to sell or buy

EXCEPTION - no child pornography

Question 24

SDP - Right to Die

Answer 24

you have a right to refuse medical treatment or procedures

no right to suicide or assisted suicide.

Question 25

SDP - Right to travel - (NOT a Privacy Right) domestic and overseas

Answer 25

14th Amendment P&I clause allows every citizen to travel freely from state to state and set up residency in a new state.

Right to travel internationally is not absolute - can restrict for national security reasons.

Question 26

Where does the right to vote come from?

Answer 26

1st amendment right of association and the 14th amendment
15th Amendment - no racial discrimination
19th amendment - no sex discrimination
24th amendment - no poll taxes
26th amendment - cannot discriminate over 18 years of age

Question 27

Level of Scrutiny applied to voting restrictions

Answer 27

Total ban - Strict Scrutiny
Process Regulation - Government can regulate the voting process if there is an IMPORTANT GOVERNMENT INTEREST and NO UNDUE BURDEN on the right to vote.

Question 28

Voting Restrictions deemed constitutional - List 4

Answer 28

Reasonable residency requirements
Reasonable registration requirements
Reasonable regulation of time and manner
Felon disenfranchisement - strict scrutiny applied and upheld

Question 29

Unconstitutional restrictions on voting rights - List

Answer 29

Poll tax
School board elections restricted to parents and property owners
Counting votes using vague standards that are not uniform (Bush v Gore)

Question 30

Voting in presidential elections

Answer 30

President is not elected by popular vote but by electors

method for choosing electors is a state decision

Question 31

5th Amendment Takings Clause

Answer 31

Government cannot take private property without just compensation.

Applies to the states through the 14th amendment.

Will not prevent the taking - only requires just compensation

Question 32

2 kinds of takings

Answer 32

Direct government appropriations

Regulatory takings - “where regulation is so onerous as to be tantamount to a direct appropriation”

Question 33

3 categories in determining whether a regulation is so onerous as to amount to a taking

Answer 33

1. Permanent Physical Invasion - no matter how minor
2. Deprivation of ALL economically beneficial use
3. Balancing of economic impact on the owner against the character of the government actions.

Question 34

Strict Scrutiny Test

Answer 34

Government action must be narrowly tailored to achieve a compelling state interest

Question 35

Privacy Rights

Answer 35

Contraception
Marriage
Abortion - exception to strict scrutiny - restrictions on pre viability abortion is ok if it does not place an undue burden

Question 36

What level of scrutiny applies to due process claims involving same sex sexual activity

Answer 36

Rational basis review

Question 37

What provision protects the right to travel

Answer 37

14th Amendment Privileges and Immunities

Right to international travel is protected by the 5th amendment and is not absolute

Question 38

What is a regulatory taking

Answer 38

Where the regulation is so onerous that it is tantamount to direct appropriation.
These would include:
1. Permanent Physical Invasion no matter how minor - wires in walls
2. Depravation of all economically beneficial use - must be all use.
3. Balancing - where economic impact and character of governments action. Temporary total ban on development was not a taking.

Question 39

What reason must the government provide to take your property

Answer 39

Any public purpose…very very broad

Question 40

Test Whether State Law is in conflict with Federal Law (3)

Answer 40

1. Whether the subject needs to be uniformly enforced.
2. Whether the federal regulatory scheme is so pervasive and extensive as to leave no room for state law.
3. Whether the existence of state law would obstruct the full accomplishment of the federal purpose.