Due Process Clause

Question 1

What provision regarding due process is applicable against the federal government?

Answer 1

5th A

Question 2

What provision regarding due process is applicable against states?

Answer 2

14th A

Question 3

What is procedural due process?

Answer 3

Procedural due process, protected under the due process clause of the 5th A, extended to the states under the 14th A protects against governmental deprivation of life, liberty or property without due process of law

Question 4

What is liberty as it pertains to due process of law?

Answer 4

Freedom from bodily restraint and physical punishment

Question 5

What is property as it pertains to due process of law?

Answer 5

Property includes:
1. public education
2. public employment if the employment is either
- fixed-term or
-employee may only be fired for cause
3. welfare benefits
4. driver’s license

Question 6

What is life for purposes of due process clause?

Answer 6

Capital punishment

Question 7

Who does due process clause apply to?

Answer 7

all people, citizens and non-citizens, and corporations

Question 8

What is required under procedural due process?

Answer 8

To deprive someone of life, liberty or property, the government must giveL
1. notice
2. opportunity for a hearing

Question 9

What are factors that determine whether person has been given adequate notice and hearing?

Answer 9

Factors to determine adequacy of notice and hearing:
1. the importance of the individual interest protected
2. the risk of erroneous deprivation of the interest through the procedures used
3. the government’s interest in a streamlined process

Question 10

What is substantive due process?

Answer 10

The rights that are not ennumerated in the Constitution

Question 11

What are substantive due process standards of review?

Answer 11

1. Strict scrutiny
2. Rational basis review

Question 12

What is required for a rational basis review?

Answer 12

The P must show that the law is not rationally related to any legitimate government interest

Question 13

What is required for strict scrutiny review?

Answer 13

The government must show a compelling government interest and that its legislation is narrowly tailored to achieve its purpose

Question 14

What type of rights are implicated by economic regulation?

Answer 14

Substantive due process rights are not economic

Question 15

What standard of scrutiny are economic regulations subjected to?

Answer 15

Because economic rights are not included as rights protected by substantive due process, economic regulations only have to meet rational basis review

Question 16

What are fundamental rights subject to substantive due process?

Answer 16

1. Contraception
2. Marriage
3. Family relations
4. Private education
5. Possession of obscene material
6. Right to travel
7. Right to vote

Question 17

What is protected regarding family relationships regarding fundamental rights?

Answer 17

1. States cannot prohibit members of an extended family from living together in a single household

Question 18

Is it a violation of substantive due process for a state to ban unrelated persons from living together in a single-family residence?

Answer 18

No

Question 19

What is protected regarding the substantive due process fundamental right regarding possession of obscene material?

Answer 19

One has the right to possess obscene material other than child pornography in one’s own home, but there is no right to buy or sell that same material

Question 20

What is the fundamental right to travel?

Answer 20

The 14th A privileges or immunities clause allows citizens to travel freely from state to state and to set up residency in a new state

Question 21

Where does the fundamental right to vote come from?

Answer 21

Generally, the right to vote comes from the First Amendment Right of Association and 14th A

Question 22

What aspect of the fundamental right to vote is protected by the 15th A?

Answer 22

States cannot discriminate with respect to race regarding voting

Question 23

What is the fundamental right regarding voting protected by the 19th A?

Answer 23

States cannot discriminate with respect to sex

Question 24

What are voting restrictions that are constitutional?

Answer 24

1. reasonable residency and voter registration requirements
2. reasonable regulation of time and manner of casting votes
3. denying felons the right to vote

Question 25

What voting restrictions are unconstitutional

Answer 25

1. can’t require voters at school board elections own property
2. can’t count votes using standards that lack uniformity or are too vague

Question 26

What is the status of rights to engage in same-sex intimacy?

Answer 26

While not a fundamental right, states can’t ban same-sex intimacies and autonomy

Question 27

What is the status of the right to die?

Answer 27

The right to die isn’t a fundamental right, but there is a right to refuse an unwanted medical procedure

Question 28

Is there a right to physician-assisted suicide?

Answer 28

No