Due Process Clause

Question 1

1st step of DP analysis

Answer 1

Before the government may deprive a person of life, liberty, or property, it must provide the person with due process.

Question 2

DP RULE

Answer 2

1. There must be state action (means action by state or federal government) action, for without state action there can be no need for due process.
   2. The state action must lead to the deprivation of an individual’s right.
   3. The individual right must be one of life, liberty, or property.

Question 3

DP

LIife

Answer 3

Life, with exceptions

Question 4

DP

Liberty

Answer 4

1) Liberty–“essential to the orderly pursuit of happiness to men”
○ Right to contract,
○ engage in occupation,
○ acquire useful knowledge,
○ marry, establish a home,
○ raise children,
○ worship acc to one’s conscience
○ See also Fundamental rights chart

Question 5

DP

Property

Answer 5

requires the person to have “a legitimate claim of entitlement to it”
◊ Ownership of real estate, chattels, money
◊ Right to a job, i.e., you currently have that job
◊ Right to assistance from the Govt

Question 6

After regular DP is met–>

Answer 6

■ If these are met, first consider the procedures used. Was the person provided notice and an opportunity to be heard before the government deprived them of life, liberty, or property?

■ If procedural process is met, then address whether the requirement for substantive due process has been met. Start by determining whether life, liberty, or property interest has impacted by the government action.

Question 7

who has the burden of proof for DP claim?

Answer 7

○ For both Sub & Pro Due Process–>initial burden is on the Plaintiff:
◊ The plaintiff must demonstrate that the state law creates a constitutionally protected int that they were deprived of

Question 8

Procedural DP

what is it generally?

Answer 8

○ Concerns the right to a fair legal process and entails, for instance, the right to receive notice and a hearing.

Question 9

Pro DP RULE

Answer 9

1. The government must provide advance notice of the intent to infringe a person’s right
   ■ Notice does not require actual notice.
   ■ Rather, it only requires that the notice be designed reasonably to ensure that all interested parties will learn of the pending action.

2.AND the government must provide the person with an opportunity to be heard so that he or she may challenge the infringement.

Question 10

Substantive DP

what is it generally?

Answer 10

○ Judicially developed doctrine that requires the government to have a sufficiently strong “reason” for infringing a person’s rights to life, liberty, or property.

Question 11

Substantive DP

requires you to apply

Answer 11

■ Used when examining the necessary strength of the gov’s reason:
1. Strict scrutiny
2. Intermediate scrutiny
3. Rational basis scrutiny

○ Absent a sufficiently strong reason, the government is not permitted to infringe on a person’s rights (even if procedural due process was met).

Question 12

Diff bw Sub and Pro DP

Answer 12

• To distinguish the two, look at the remedy sought:
  ○ Substantive = the plaintiff is seeking to have a government action declared
  unconstitutional as violating a constitutional right.
  ○ Procedural = a person or group is seeking to have a government action declares
  unconstitutional because of the lack of adequate safeguards, such as notice and a hearing.