Economic Rights - Nov. 16 Flashcards
In addition to requiring a grand jury in trials involving the death penalty, what other rights does the Fifth Amendment protect? (Q)
In addition to the grand jury requirement, the Fifth Amendment prohibits the government from:
trying people for the same crime twice (also called the prohibition against double jeopardy),
forcing people to testify against themselves in criminal proceedings (also called the privilege against self-incrimination),
depriving people of life, liberty, or property without due process of law, and
taking private property for public use without compensation.
In general, the Fourth and Fifth Amendments outline basic limits on police procedures.
Are citizens protected from infringements of their Fifth Amendment rights made by the states? (Q)
Yes, but only for certain Fifth Amendment rights. The Supreme Court has selectively incorporated the protections of the Fifth Amendment. The right to a grand jury was not incorporated. This means that states remain free to craft their own grand jury practices without regard for citizens’ Fifth Amendment rights.
The remaining Fifth Amendment protections, including the prohibitions against double jeopardy, self-incrimination, and takings without compensation, have been incorporated. States are also required to provide citizens with due process under the Fourteenth Amendment.
What is substantive due process? (Q)
Under the principle of substantive due process, the government requires substantively valid justifications in order to deprive individuals of life, liberty, or property. The Supreme Court has concluded that the liberty protected by substantive due process is not only freedom from physical restraint, but also protection from governmental interference with certain rights and liberty interests.
Substantive due process rights are guaranteed to citizens through the Fifth and Fourteenth Amendments. The Fifth Amendment protects against incursions by the federal government, whereas the Fourteenth Amendment protects against incursions by the states.
What is a fundamental right, for purposes of substantive due process? (Q)
Fundamental rights include rights expressly enumerated in the Bill of Rights, as well as a limited number of implied rights typically involving privacy or autonomy interests. Implied fundamental rights include the right to marry, the right to purchase and use contraception, the right to have and raise children, the right to control a child’s education, the right to refuse medical treatment, the right to vote, and the right to interstate travel.
These implied fundamental rights are not expressly enumerated in the Constitution; rather, the Supreme Court has inferred their existence in its interpretation of the Fourteenth Amendment’s guarantees of substantive due process and the Bill of Rights.
Are all fundamental rights expressly enumerated in the Constitution? (Q)
No. Rights need not be expressly enumerated in the Constitution in order to be deemed fundamental. Rather, the Supreme Court has inferred the existence of a limited number of implied fundamental rights in its interpretation of the guarantees of the Fourteenth Amendment’s Due Process Clause and the Bill of Rights.
The Court has concluded that the specific guarantees in the Bill of Rights have penumbras creating a zone of privacy. These express constitutional guarantees center around a fundamental principle of personal autonomy or right to privacy, within which the government cannot intrude absent a compelling justification.
For purposes of substantive due process, what is a fundamental right? (Q)
For purposes of substantive due process, a fundamental right is one that is implicit in the scope of ordered liberty, such that liberty and justice would not exist without the right. Usually, these are rights that are objectively rooted in the history and traditions of the United States. However, if an important right has historically been denied to a certain class of people (e.g., the right to marry for same-sex couples), it may be deemed fundamental even though it is not rooted in history and tradition. Aside from these general principles, the Supreme Court has not laid down any firm rules governing what rights are or are not fundamental, nor has the Court applied these principles consistently across cases. For these reasons, substantive due-process litigation tends to be politically charged and highly controversial.
What is the test for determining if an interest is a constitutionally protected fundamental right or liberty interest? (Q)
An interest is a fundamental right or liberty interest if it is:
fundamental to the American scheme of ordered liberty or
deeply rooted in the nation’s history and tradition.
Fundamental rights and liberty interests are protected by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. Fundamental rights typically involve privacy or autonomy interests. Some accepted fundamental rights include the right to privacy, the right to marry, the right to purchase and use contraception, the right to have and raise children, the right to refuse medical treatment, the right to vote, and the right to interstate travel.
