Due Process & Portions of Bill of Rights Flashcards
Which Constitutional Provision should you use?
a) Claims against federal government: 5th Amendment Due Process Clause
b) Claims against a state government: 14th Amendment Due Process Clause
Exam tip!
Q’s on this topic will present themselves in two diff forms
the 1st asks what is the best source for an argument that a particular law is unconstitutional = for this, ask whether the cont. provision protects from the states or the fed. gov’t
the 2nd asks whether a law is const. = for this. look to the actual content of the individual rights
Due Process Clause (both Fifth and Fourteenth Amendments)
Procedural Due Process
i) Protects against governmental deprivation of “life, liberty, or property” without due process of law
(1) “Liberty” = freedom from bodily restraint and physical punishment
(2) “Property” = public education, public employment (if fixed-term employment OR can be fired only for cause), welfare benefits, driver’s license
(3) “Life” = capital punishment
ii) Applies to all people (not just citizens) as well as corporations
iii) To deprive someone of life, liberty, or property, the government must give: notice and an opportunity to be heard (i.e., a hearing)
(1) Factors to determine adequate notice and hearing:
(a) The importance of the individual interest protected;
(b) The risk of an erroneous deprivation of this interest through the procedures used; and
(c) The government’s interest in streamlined procedures
Due Process Clause (both Fifth and Fourteenth Amendments)
Substantive Due Process
Rights that are not enumerated in the Constitution
Exam tip!
the Privileges or Immunities Clause of the 14th am. is frequently a wrong answer on the MBE
However, it may be a right answer with regard to the right to travel
Due Process Clause (both Fifth and Fourteenth Amendments)
Substantive Due Process: Standards of Review
(1) Rational basis = the PLAINTIFF must show that the law is not RATIONALLY related to any LEGITIMATE government interest
(2) Strict scrutiny = the government must show a COMPELLING government interest and that its legislation is NARROWLY tailored to achieve its purpose
Due Process Clause (both Fifth and Fourteenth Amendments)
Substantive Due Process: Economic Regulation
Substantive due process challenge directed at an economic regulation is subject only to a rational basis review
Due Process Clause (both Fifth and Fourteenth Amendments)
Substantive Due Process: Fundamental Rights List
(1) Contraception
(2) Marriage
(3) Abortion
(4) Family Relations
(5) Private Education
(6) Possession of Obscene Material
(7) Right to Travel
(8) Right to Vote
Receives strict scrutiny review
Burden is on the GOV’T
Fundamental Rights 1-4
(1) Contraception
(2) Marriage
(3) Abortion
(a) Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion
(i) Examples of undue burden:
1. Total ban on abortion
2. Spousal consent or notification requirement
3. Recording the names of patients who seek abortions
4. Requiring minors to get parental consent without a judicial bypass option
(ii) Examples of no undue burden:
1. Requiring minors to get parental consent with a judicial bypass option
2. A 24-hour waiting period
3. Requiring doctors to give truthful, non-misleading information to women seeking abortions
4. Refusing public funds
5. A prohibition on certain methods of abortion if they are not the safest
(4) Family Relations
(a) States cannot prohibit members of an extended family from living in a single household
(b) States can ban unrelated persons from living together in a single-family residence
Fundamental Rights 5-8
(5) Private Education
(a) Parents have a right to privately educate their children outside the public school system
(6) Possession of Obscene Material
(a) Right to possess obscene material (except child pornography) in the privacy of one’s home
(i) However, no right to buy or sell that same material
(7) Right to Travel
(a) 14th Amendment Privileges or Immunities Clause allows citizens to travel freely from state to state and to set up residency in a new state (int’l travel is not absolute)
(8) Right to Vote
(a) Generally, right to vote comes from First Amendment Right of Association and 14th Amendment
(i) Other voting rights:
1. 15th Amendment: States cannot discriminate with respect to race
2. 19th Amendment: States cannot discriminate with respect to sex
3. 24th Amendment: No poll taxes
4. 26th Amendment: Right to vote for citizens 18 years or older
(b) Restrictions that are constitutional:
(i) Reasonable residency and voter registration requirements
(ii) Reasonable regulation of time and manner of casting votes
(iii) Denying felons the right to vote
(c) Restrictions that are unconstitutional:
(i) Cannot require voters at school board elections to own property
(ii) Cannot count votes using standards that lack uniformity or are too vague
No Fundamental Right but some Nuance
(1) Sexual Orientation
(a) States cannot ban same-sex intimacies and autonomy (not a fundamental right; use rational basis review with “teeth”)
(2) Right to Die
(a) Not a fundamental right; there is a right to refuse unwanted medical procedures (i.e., life-support), but no right to physician-assisted suicide
5th amendment Takings Clause
a) Government cannot take private property for public use without just compensation
i) “Public use” = “public purpose” (easy standard to meet)
5th amendment Takings Clause: 4 Kinds
i) Direct government appropriation = where government actually takes property
ii) Regulatory taking = where government doesn’t take property but imposes a regulatory requirement that is so onerous as to effectively amount to a taking of land
(1) Categories to determine whether a regulatory requirement amounts to a taking:
(a) The regulation requires the property owner to suffer some permanent physical invasion;
(b) The regulation deprives the property owner of all economically beneficial use to the property; or
(c) Balance the economic versus physical impact of the regulation on the property owner, as well as the duration and character of the government action.
(i) Temporary restrictions = does not permanently deprive the owner of all economically beneficial uses of his land = A court will look at both the dimensions of a property interest and the term of years
(iii) Conditional permits = a condition on the grant of a permit for land development
(1) Permissible if:
(a) there is a logical nexus between the condition and the governmental purposes; and
(b) there is rough proportionality between the impact on the proposed development and the governmental objectives served by the condition
