Due Process & Incorporation

Question 1

Under the doctrine of selective incorporation, which amendments are incorporated to the states?

Answer 1

1st, 2nd, 4th, 5th, 6th, 8th

*DPC doesn’t permit a state to interfere with parents childrearing decisions

Question 2

What important rights are not incorporated to the states? (2 points)

Answer 2

1- 5th amendment grand jury right

2- 7th amendment jury right in civil cases

Question 3

The DPC and EP Clauses of the 14th amendment protect whose rights? (3 points)

Answer 3

1- people (not just citizens)

2- corporations (not entitled to self-incrimination protection)

3- aliens

Question 4

Procedural Due Process of 5th & 14th Amendments protect against what? (2 points)

Answer 4

1- Acts that invade a liberty interest

2- Property interests: public education, welfare benefits, driver’s license, public employment, prejudgment garnishment, forfeiture of property, business licensing

Question 5

What 3 factors due courts use to determine what procedural safeguards are necessary?

Answer 5

1- the private interest affected by the action

2- the risk of an erroneous deprivation through the procedures used

3- the govts interest in streamlined procedures

*irrebuttable presumptions violate procedural due process

Question 6

Analysis Tips for 13th Amendment

Answer 6

private individuals acting

Question 7

Analysis Tips for 14th Amendment

Answer 7

States Acting

Question 8

Analysis Tips for Commerce Clause

Answer 8

important source of congressional power over civil rights

Question 9

Analysis Tips for Contract Clause

Answer 9

where state revokes a K to which its a party to

Question 10

Analysis Tips for Due Process Clause

Answer 10

best for unconstitutional arguments when:

1- state acts; or

2- state doesn’t grant a hearing or invades privacy rights

Question 11

Analysis Tips for Equal Protection

Answer 11

when state action interferes w/ a fundamental interest

Question 12

Analysis Tips for General Welfare Power or Spending Power

Answer 12

when voluntary cooperation by party with fed govt is the only way to reach a result

Question 13

Analysis Tips for Police Powers

Answer 13

only applicable for state action

Question 14

Analysis Tips for Privileges & Immunities Clause

Answer 14

when states discriminate against nonresidents on fundamental matters

Question 15

Analysis Tips for Supremacy Clause

Answer 15

1- not a congressional power

2- relevant when statutes conflict with state activities

Question 16

Analysis Tips for Taxing Power

Answer 16

1- allowed for regulatory purposes if there is a revenue-raising function

2- best answer if commerce clause isn’t available

Question 17

SDP: Challenges to economic regulation are subjected what type scrutiny?

Answer 17

Rational Basis

Question 18

SDP: Which fundamental rights get strict scrutiny?

Answer 18

IMPORTANT ONES: Abortion, Family Relations, Sexual Orientation, Right to travel

OTHER ONES
1- right to vote
2- First amendment rights
3- private education
4- obscene material
5- right to die
6- medical records

Question 19

Special Abortion Considrations

Answer 19

States can regulate abortion AFTER the fetus is viable

1- before viability- only to protect mothers birth; No undue burden

2- after viability- to protect mothers life

3- consent requirements- unduly burdensome

4- government funding- no right to use for abortion

5- late term abortion- unconstitutional

Question 20

What are the 4 types of Takings?

Answer 20

any permanent, physical invasion, no matter how minor, constitutes a taking

1- direct taking

2- regulatory taking

3- temporary restrictions

4- conditional permits