Individual Liberties

Question 1

Broadly what is the definition of Procedural Due Process?

Answer 1

Has the Government provided ADEQUATE PROCEDURES before takin away someone’s life, liberty or property?

Question 2

With regard to Procedural Due Process, what can a taking of “property” encompass, in addition to personal belongings or realty?

Answer 2

If there is an entitlement and that entitlement is not fulfilled.

Question 3

If a government action is challenged under PDP or the Equal Protection clause, the law will be upheld unless what?

Answer 3

— A fundamental right, suspect or quasi-suspect class is involved

OR

— The law is arbitrary or irrational

Question 4

Can PDP rights be waived?

Answer 4

Yes, if made voluntarily and knowingly

Question 5

Which benefits/entitlements require a notice and hearing BEFORE the State Action to conform with Procedural Due Process?

Answer 5

— When Welfare Benefits are terminated

— When a parent’s child custody rights are permanently terminated

— Government issuing a prejudgment attachment or seizing a person’s personal property (unless they have reason to believe that giving notice would allow them to dispose of the property)

Question 6

In which case must the government provide a post-termination hearing after the State Action has occurred?

Answer 6

When social security benefits are terminated

Question 7

When must the government provide a notice of the charges and an opportunity to defend oneself BEFORE the State Action in order to adhere to Procedural Due Process?

Answer 7

When a school disciplines a student

Question 8

What type of Procedural process must be afforded to (1) an adult, and (2) a child committed to a mental institution?

Answer 8

Adult = Prior notice and prior evidentiary hearing

Children = Prior screening by a neutral fact finder (parental consent alone insufficient)

Question 9

What is the test that the Supreme Court applies when considering deprivation of property/a benefit? Which test did this replace?

Answer 9

The test of entitlement. The person had a reasonable expectation to continue receiving that entitlement.

This replaces the Rights Privilege Distinction

Question 10

Can the government negligently deprive a person of Procedural Due Process?

Answer 10

No, there must be intentional government conduct.

Question 11

Does the government owe a duty to protect people from privately inflicted harms?

Answer 11

No, it’s only if a person is in Government custody or the Government created the harm.

Question 12

When will a deprivation of Liberty occur?

Answer 12

When there is a loss of SIGNIFICANT FREEDOM provided by the Constitution or a Statute.

Question 13

What is the three-part introductory paragraph you should include on a Procedural Due Process essay question?

Answer 13

Under the PDP Clause of the 14th Amendment, the State must provide some FAIR PROCESS or procedure BEFORE it deprives a person of their LIFE, LIBERTY or PROPERTY.

Fair process, at a minimum, required the opportunity to present objections to the proposed action to a fair, neutral decision-maker.

Whether a prior evidentiary hearing is required and the extent of the procedural requirements are determined by applying the 3-PART BALANCING TEST

Question 14

What is the 3-part balancing test you need to consider when the government has deprived a person of their life, liberty (a significant freedom provided by the Constitution/Statute), or property (continued receipt of an entitlement)?

Answer 14

— The importance of the individual interests

— The value of safeguarding that interest, and

— The Government’s interest in efficiency

Question 15

Which test is applied when considering the deprivation of economic liberties?

Answer 15

The Rational Basis Test. So the government will win unless the claimant can show that there was no rational basis for the law.

Question 16

What is the Takings Clause?

Answer 16

The Government cannot take private property unless it provides just compensation.

Question 17

What are the two types of “taking” by the government of private property?

Answer 17

1. Possessory Taking: where the government occupies it confiscates any amount of property
2. Regulatory Taking: The law leaves NO REASONABLE ECONOMICALLY VIABLE USE of the property.

Question 18

Will the reduction of a the value of a person’s property or a significant change of use be a regulatory taking?

Answer 18

No, the regulatory taking has to leave no reasonable economically viable use.

Question 19

An owner is temporarily denied all economic use of their property. Does this count as a governing “taking?”

Answer 19

No, but the Court will still weigh whether the government action was reasonable in light of the circumstances.

Question 20

A person buys land that has serious zoning restrictions imposed upon it. Does prior knowledge of the government regulation prevent you from claiming there has been a “taking?”

Answer 20

No, a person can still challenge the taking.

Question 21

When does the Court determine that a government taking is for public use?

Answer 21

When the government acts under the reasonable belief that the taking will benefit the public.

Question 22

How is just compensation measured?

Answer 22

Measured by the fair market value of the property at the time of the taking.

AND

By the loss to the owner, not the gain to the government.

Question 23

What does the Contracts Clause protect against?

Answer 23

It limits the ability of the state to enact laws that RETROACTIVELY IMPAIR EXISTING contracts.

It does not affect contracts that are yet to be made.

Question 24

Does the Contract Clause apply to both State and Federal laws?

Answer 24

Not to Federal laws.

Question 25

For state interference with Private Contracts, which test is applied?

Answer 25

Intermediate Scrutiny

— Does the law SUBSTANTIALLY IMPAIR a party’s rights under an existing contract.

— If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate government interest?

Question 26

For state interference with Public Contracts, which test is applied?

Answer 26

Strict Scrutiny

Question 27

What is the position under Post Ex Facto Laws? In what circumstances does this not apply?

Answer 27

The State or Federal Government cannot retroactively alter criminal offences or punishments.

It does not apply to civil cases

Question 28

Why is the Post Ex Facto Law often the wrong answer to a question about the Contracts Clauses?

Answer 28

Because the government will be altering rights under an existing civil contract, which has nothing to do with criminal law/punishment.

Question 29

What are Bills of Attainder?

Answer 29

Legislation that imposes punishment on individuals without a judicial trial.

Question 30

If a law limits liberties of ALL persons to engage in some activity, then it’s usually what type of question?

Answer 30

A Due Process question.

Question 31

If the law treats a person or certain class of persons differently from one another, then it’s usually what type of question?

Answer 31

Equal Protection

Question 32

The right to Privacy is what type of right and which test (rational, intermediate or strict scrutiny) applies?

Answer 32

The Right to Privacy is a fundamental right, protected by Substantive Due Process.

Strict Scrutiny Test applies.

Question 33

Which are the rights that trigger the Strict Scrutiny Test?

Answer 33

— Right to marry

— Right to procreate

— Custody over ones children

— Right to keep the family together

— Right to control the upbringing of ones children

— Right to purchase and use contraceptives

— Right to Travel

— Right to Vote

— Freedom of Speech

— Freedom of Association

— Freedom of Religion

Question 34

Does the right to abortion apply the Strict Scrutiny Test?

Answer 34

No, it’s the Undue Burden Test.

Question 35

What are the rules for restricting abortion rights pre-and-post viability?

Answer 35

Pre-viability = No Undue Burden

Post-viability = States may prohibit abortion, unless mother’s health threatened

Question 36

Which 3 rights have an undefined level of scrutiny applied to them?

Answer 36

2nd Amendment Right to Bear Arms

Right to engage in private, consensual, homosexuality activity

Right to refuse medical treatment

Question 37

Under which Clauses is the Right to Travel protected?

Answer 37

Under both Equal Protection and the Privileges and Immunities Clause (14th Amendment).

Question 38

Which test scrutiny must restrictions on the right to travel meet?

Answer 38

Strict Scrutiny Test

Question 39

If the Right to Travel involved restriction of FOREIGN TRAVEL, does this also need to meet the Strict Scrutiny Test?

Answer 39

No, this is a Rational Basis Test

Question 40

Are State regulations that require minimum residency before a person can receive a particular benefit generally Constitutional?

Answer 40

It will depend. Courts often apply Strict Scrutiny.

Question 41

What type of right is the Right to Vote?

Answer 41

It’s a Fundamental Right, so restrictions will generally need to be Strict Scrutiny.

Question 42

Which 7 rights are not fundamental and only require a Rational Basis Test?

Answer 42

— Right to practice a trade/profession

— Right to physician-assisted death

— Right to Education

— Age discrimination

— Disability

— Wealth or economic discrimination

— Sexual Orientation