Due Process and Incorporation Flashcards
What amendments govern the federal government?
The Bill of Rights. In the case of discrimination, the Fifth Amendment bars the federal government from doing so.
What amendment govern the states?
The 14th Amendment Due Process Clause incorporates all amendments in the Bill of Rights except the 5th Amendment right to a grand jury, 7th Amendment right to jury trials in civil cases, and 8th Amendment bar on excessive fines.
The Equal Protection Clause of the 14th Amendment prohibits a state from discriminating.
A state is prohibited from discrimination against out-of-state business interests and corporations according to the Due Process Clause
A state is prohibited from discrimination against out-of-staters in general according to the privileges and immunities clause of Art. IV.
What is due process?
- Procedural due process;
2. Substantive due process.
What is procedural due process?
The individual has a right to fundamentally fair procedural safeguards where there is a deprivation of one’s life, liberty, or property.
A “person” includes all people, incl. aliens, and corporations.
Liberty - Any act that invades a liberty interest, including freedom from bodily restraint and physical punishment.
Property - Where there is a property interest in something. There is a constitutionally protected property interest in the statutory entitlement to: continued attendance at a public school.; welfare benefits; driver’s license. There is a property interest in fixed term or just cause employment (not at-will employment). There is a property interest in garnishing wages or once employment benefits have been given. There is a property interest in forfeiture and business licensing.
Life - Rigorous due process is required for capital punishment.
What procedure is required for procedural due process?
In order to determine what procedural safeguards are necessary, the following factors balance the relevant interests:
- the private interest that will be affected by the official action;
- the risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures; and
- the government’s interest in streamlined procedures, including the fiscal and administrative burdens.
Generally, the government must give two things before any deprivations:
- Notice; and
- Hearing.
What is substantive due process?
Rights that are unenumerated.
Substantive due process rights are not economic. Economic regulations will be upheld if they are rationally related to a legitimate government interest.
It now deal with rights of personhood rather than property rights.
If the government wants to regulate personal rights then it has to meet the highest level of scrutiny. The government must show:
- a compelling government interest; and
- that is necessary to serve the interest/it is the least restrictive alternative/narrowly tailored.
What are the privacy rights?
Contraceptives - There is a right to privacy as to the use of contraceptives.
Marriage - There is a right to marry.
Abortion:
There is a right to abortion. Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on the right. Any regulation on a post-viability abortion is allowed except where it is necessary to preserve the life or health of the mother.
Undue burdens: total ban; spousal consent or notification; recording names of patients; and parental consent without judicial bypass.
Not undue burdens: parental consent with judicial bypass; 24-hour waiting period; truthful non-misleading information requirement; refusing public funds; and prohibition of certain methods not the safest.
Family Relations - There is a right for related persons to live together and control visitation with children by others.
Sexual Orientation - Using the rational basis test, there is a right to sexual orientation and activity.
Education - There is a right to privately educate their children.
Obscene material - There s a right to possess obscene material in the privacy of your own home. This does not include child pornography. The government can severely restrict the sale, purchase, receipt, transport, and distribution of such material.
Right to Die - There is a right to not be forced to undergo an unwanted medical procedure. There is no right to assisted or general suicide.
Right to travel - The P + I clause in Art. IV gives a right to travel freely from state to state. Durational residency requirements may be challenged. International travel is not absolute but subject to restrictions.
Right to vote - There is a right to vote for citizens over 18 years of age. However, regulations of ballot access requires only rational basis scrutiny. Also, voter registration requirements are valid so long as they do not impose an undue burden.
Restrictions that are constitutional: residency; reasonable voter registration; time and manner of casting votes; voter ID laws; and denying felons.
Restrictions that are unconstitutional: poll taxes, property ownership in school board elections; and non-uniform or too vague standards.
What is the takings clause?
The 5th and 14th Amendments provides taht private property shall not be taken for public use without just compensation.
Three kinds of takings:
1. Direct government appropriation - There must be an actual appropriation not just a regulation.
- Regulatory taking - Any permanent, physical invasion will constitute a taking. A land use regulation is a taking if it denies an owner all reasonable, economically beneficial uses of his land. The courts have developed a balancing test:
a. the economic impact of the regulation;
b. the extent to which the regulation has interfered with distinct investment-back expectations, and
c. the character of the governmental action. - Temporary restrictions - The court will look at the dimensions of a property interest and the term of years.
- Conditional permits - A condition on a grant of a permit is allowed if:
a. there is a logical nexus between the condition and the governmental purpose; and
b. there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition.
Public use is broadly any public purpose.
