Individual liberties Flashcards
what is procedural due process?
procedures that govt must follow to take away someones
1) life
2) liberty
3) property
how is liberty defined
loss of liberty occurs when there is a loss of a significant freedom provided by constitution or statue
how is property defined
an ENTITLEMENT (a reasonably continued receipt of the benefit)
is government negligence enough for deprivation of due process?
NO, usually need intentional government action or at least recklessness
does governments failure to protect people from privately inflicted harms deny due process
NO.
x/c if govt created danger or person was in government custody
what procedures are required if deprivation (balance test)
1) private individuals interest
2) ability of procedures to increase fact finding (safeguards)
3) governments interest (money and efficiency)
examples for what type of procedures needed
1) welfare benefits termination: both notice and hearing
2) permanent termination of parent’s right to custody: both notice and hearing
3) student disciplined by school: notice of charges and chance to explain to administration
4) harm to reputation by itself is NOT LOSS of liberty
what has substantive due process been used to protect (2 things)
1) economic liberties and
2) safe guard property
what type of std is used to protect economic liberties
RBR.
what is the test for takings clause
1) is there a taking
2) is it for public use
3) is there just compensation
what is a taking under takings clause (2 ways)
1) possessory taking: govt confiscation or physical occupation of property is always a taking. Also includes govt action that significantly damages property or impairs its use
2) regulatory taking: government regulation is a taking if it leaves NO REASONABLE ECONOMICALLY VIABLE use of property
is temp denying an owner use of property a taking?
No if taking so long as the government’s action is reasonable
what is for public use
acts out of reasonable belief that taking will benefit the public.
how to determine just compensation
fair market value.
how is just compensation measured??
in terms of LOSS to the owner in reasonable market value terms and the gain to Govt is irrelevant.
when are ex post facto laws unconst.
only in criminal cases, not apply to civil cases
what std of review does privacy get under fundamental rights?
strict scrutiny
examples of privacy rights for a fundamental right that require strict scrutiny
1) right to marry
2) right to procreate
3) right to custody of ones children
4) right to keep the family together
5) right of parents to control the upbringing of their children
6) the right to purchase and use contraceptives
7) right to abortion (undue burden)
8) right to engage in private consensual same-sex activity
9) right to refuse medical treatment
10) second amendment right to bear arms in home
11) right to travel
12) the right to vote
13) freedom of speech
14) freedom of association
15) free exercise of religion
what is the standard of review for right to abortion prior to viability
undue burden
examples of undue burden on state for abortion
1) requiring physician to have admitting privileges at nearby hospital
2) the govt has NO duty to subsidize abortions
3) spousal consent or notification
4) parental notice and consent UNLESS judge exception
examples of not undue burden for abortion
1) 24 hour waiting period for abortions
2) abortions performed by licensed physicians
3) prohibition on partial birth abortions
what is the rule for abortions after viability
states may prohibit abortions UNLESS necessary to protect the woman’s life or health
the right to refuse medical treatment
1) competent adults have the right to refuse medical treatment even life saving
2) needs clear and convincing evidence
can a state prevent family members from terminating treatment of another?
Yes
