Individual Liberties

Question 1

What does Procedural Due Process deal with?

Answer 1

Is about the procedures the gov must follow when it takes away a person’s life, liberty, and property.

about the type of notice or liberty the gov muct provide

MC NOTE: If p is claimng for more notice then it deals with this

Question 2

What does Substantive process deal with

Answer 2

Asks wherther there is an adequate reson for the gov. “limiting” a persons life, liberty or property

P claims their right were taken away for no good reason then this

Question 3

What is equal protection?

Answer 3

Whether the gov’s distinctions drawn among people is adequatley justified. Whhtehr something is sufficient will turn on the level of scrutiny.

Equal Protection Clause of thr 14th Amendment deals w/ Treating a person or a group of people unfairly, differently from other groups

Question 4

Procedural Due Process

When is there a deprivation of liberty?

When does a deprivation of property occur?

Answer 4

1. ) A deprivation of liberty occurs if there is the loss of a significant freedom of action or a freedom provided by the Constitution or a statute.
   - Note:A harm to one’s reputation is not a loss of their liberty without due process
   - Before you can be taken to crazy house you need to have due process
2. ) A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.

Entitlement (Definition)- Reasonable expetation to continue receipt of a benefit under state or federal law

Question 5

True of False:

1.) Government negligence is sufficient for a deprivation of due process

Answer 5

1.) False. Generally, there must be intentional government action or at least reckless action for liability to exist.

Question 6

In emergency situations, when is the government liable under due process?

Answer 6

In emergency situations, the government is liable under due process only if its conduct “shocks the conscience”.

Question 7

True of False:

2.) The government’s failure to protect people from privately inflicted harms does not deny due process.

Answer 7

2.) True. (4 year old boy beaten by father. Mom sued Social cesurity services saying gov. didnt respond to calls. Lost because gov has no duty to protect people from private harm.

Question 8

In what situations does the government have a duty to protect people from private harm?

Answer 8

Only if person is in gov custody or if gov. creates the danger does gov. have a duty to protect from private harms)

Question 9

Procedural Due Process

The test

Answer 9

Balance:

1. The importance of the interest to the individual
2. the ability of additional procedures ti increase the accuracy of the fact-finding
3. the government’s interests

Examples:

• Before a person’s welfare benefits can be terminated there must be a notice and a hearing
• When SSD benfits are cut off a post termination hearing (there can be a cut off followed
• When a student is diciplined by a school ther Must be notice of the charges and an opportunity to explain. Exception: corporal punishment doesnt require any due process
• Before parents right to a child be terminated there Must be notice and
• American citizen held as an enemy combatant must be given due process.
  
  • Puntitive damages require instructions for the jury(to use their discretion) and judicial review(make sure award is reasonable).
  • Except in exigent circumstances(reason to belivee the person would get rid of the property), pre judgment attachment or gov seizure of assets must be proceeded by notice of the hearing.
  • Government may seize property even if is has an innocent owenr if the proerty has been used in illegal activites

Question 10

Economic Liberties:

What kind of test is used for laws affecting economic rights?

Answer 10

The rational basis test

Question 11

What kind of iiberties affect economic rights?

Answer 11

Due process challenge to a contract then it is rational basis review or challenge to having to pass the bar in a state deals w/ economic liberites

Question 12

What is the takings clause?

3.) What is just compensation in a taking?

Answer 12

The takings clause states gov can take private property for public use but it must provide just compensation.

3.) Measure in terms of the loss to the owner. Not the gain of the taker. In other words the FMV of the property when taken

Question 13

What are the 2 kinds of takings?

What is the difference between the two takings?

Answer 13

Possessory taking- When the government confiscates or physically occupies a property.

Regulatory taking- When a government regulation leaves no reasonable economically viable use of the property

Regulatory will not always require the government to provide just compensation. Focus to see if there is a reasonable economically viable use of the property.

Ex: Temporary Denial of use of land will not be a taking.

Other rules to know:

Gov. condition on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.

A property owner may bring a takings challenge to regulations that existed at the time the property was acquired.

Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable

Question 14

How to establish if a taking is for public use?

If a taking is for public use then what must happen?

If a taking isn’t for public use then what must happen

Answer 14

If the gov acts out of a reasonable belief that the taking will benefit the public.

The government must provide just compensation

Government must return the property

Question 15

What is the contracts clause?

Answer 15

The contracts clause state that no state shall impair the obligations of contracts. (Can’t retroactively impair contracts.)

• State or local interference with governmetn contracts must strict scrutiny
• The ex post facto clause does not apply in civil cases.

Question 16

Does the contract clause apply to states or the federal government?

Answer 16

Applies only to state or local interferences with existing contracts

Question 17

State or local interference with private contracts must meet what scrutiny?

What must be proven to show that the state or local law is interfering with one’s contract?

If the state law interferes with one’s contract, when the legislation still be held to be valid?

Answer 17

State or local interferenc with private contracts must meet immediate scrutiny

Must show that the state legislation substantially impairs the existing private contract

if the legislation is a reasonably and narrowly tailored means of promoting an important and legitimate public intest.

Question 18

Privacy is a fundamental right protected under substantive due process

Answer 18

1. The right to marry
2. The right to procreate
3. The right to custody of one’s children
4. The right to keep the family together
5. The right to control the upbringing of one’s children
6. The right to purchase and use contraceptives
7. The right to abortion

• Prior to viability, state may not prohibit abortions, but may regulate abortions so long as they do not creat an undue burdue on the ability to obtain abortions.
• Example: a requirement for a 24 hour waiting period for abortions is not an undue burden.
• Example: a requirement that they be perfromed by a liscensed physcian is not an undue burden
• Example:Prohibition of “partial birth abortions” is not an undue burden
• The government has no duty to subsidize abortions or provide abortions in public hospitals

Question 19

State or local interference with government contracts must meet what scrutiny?

Answer 19

Strict scrutiny

Question 20

What are ex post facto laws?

Answer 20

A law that the governmet cannot pass that either 1.) makes criminal an act that was innocent when done 2.) procribes greater punishment for an act that was already committed or 3) makes it easier to convict someone of a crime that they already committed

Question 21

If a fundamental right is being denied to everyone then what kind of problem is it?

If a fundamental right is being denied to some individuals but not others then what kind of problem is it?

Answer 21

Substantive due process problem

Equal Protection Problem

Question 22

Regulations limiting fundamental rights are reviewed under what scrutiny?

Answer 22

Strict Scrutiny Standard

(Must be necessary to protect a compelling governmental interest.

Question 23

A list of fundamental rights (Rights to Privacy)

Answer 23

• The right to marry
• The right to procreate
• The right to custody of one’s children
• The right to keep the family together
  
  • (The members must be related)
• The right to control the upbringing of one’s children
• The right to purchase and use contraceptives
• The right to abortion(undue burden test)
• The right to engage in private consensual homosexual activity(scrutny unknown)
• The right to refuse medical treatment(scrutiny unknown)
  
  • (There is no right to have a physicain assisted death) Rational basis review

Question 24

Right to abortion

What is viability?

1. )Prior to viabiliy how may the state regulate abortions?
2. ) After viability how may the state regulate abortions?
3. ) True of False: The governement has a duty to subsidize abortions or provide abortions in public hospitals?
4. ) True of False: Spousal consent and notification laws to obtain aborition are constitutional?
5. ) In what situation can a state require parental notice and/or consent for an unmarried minor’s abortion?

Answer 24

When the fetus can survive outside the womb.

1. ) State may not prohibit abortion but may regulate abortions so long as they don’t place an undue burden on the ability to get abortions. (Example of acts that aren’t an undue burden: pg. 30 script)
2. ) State may prevent abortions unless necessary to protect the woman’s life or health
3. ) False
4. ) False
5. ) As long as an altrenative procedure is in place for the minor to be able to go before a judge who can then determine whether it is in the best interest of the chilf to not have the baby.

Question 25

Is there a right to practive a trade or profession?

Answer 25

No. Receives rational basis review

Question 26

The second amendment right to bear arms

Answer 26

(Scrutiny unknown) This right is not absolute. The government can regulate who, what, when or what kind of weapon people can have.

Question 27

1. )Laws that prevent The right to travel must meet what kind of review?
2. ) What is a durational residency requirement and what kind of review is it meet with?
3. ) Restrictions on foreign travel need meet what kind of review ?

Answer 27

1. ) Strict Scrutiny
2. ) Strict Scrutiny
3. ) Rational Basis Review

Question 28

The right to vote

1. ) Laws that deny some citizens the right to vote must meet what review level?
2. ) What is the One-person - one-vote principle?
3. ) When drawing boundaries for elections can race be the predominant factory? If so what scrutiny must it pass?

Answer 28

1. ) Strict Scrutiny (but regulations of the electoral process to prevent fraud only need be on balance desirable) Reasonable time periods for residency are valid (Ex: 30)
   * 2.)* That there must be mathematical equality when creating congressional districts in a state. The variance in the differences between districts can only be a percentage off
2. ) No. Must pass strict srutiny

Question 29

The right to vote

What is an exception to the apportionment requirment in voting?

Answer 29

1.) At large election

Question 30

Education

Is there a fundamental right to education?

Answer 30

No