Individual Liberties

Question 1

Procedural Due Process

Answer 1

Procedures the gov’t must follow in order to deprive someone of their “life, liberty, or happiness”

Usually, Gov’t must provide notice and a hearing

Gov’t negligence not enough must be intentional or reckless deprivation

Question 2

Substantive Due Process

Answer 2

• Substantive Due Process guarantees that laws should be reasonable and not arbitrary; If the law limits a fundamental right, such as the right to travel, recognized privacy rights, voting, and all First Amendment rights, the court will apply the strict scrutiny standard.
• In all other cases, the rationality test is applied, and the law will be upheld if it is rationally related to a legitimate government interest.

Question 3

Takings Clause of the 5th Amendment

Answer 3

Gov’t may take private property for a PUBLIC USE but must provide (1) just compensation OR
(2) terminate the regulation and pay damages during the time of the taking.

“public use” - anything that benefits the public (very broad)

:just compensation” - reasonable fmv at time of taking

Question 4

Two types of Property Takings

Answer 4

1. Possessory taking- any physical occupation of the property by gov’t
2. Regulatory taking (regulation leave no viable economic use - applied very strictly)

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

Question 5

Contracts Clause

Answer 5

• No state shall impair the obligations of its contracts.
• Only applies to state or local interference with already existing private contracts. May only interfere if they can meet intermediate scrutiny (sub. related to important gov’t purpose - narrowly tailored)
• State or local gov’t interference with federal gov’t contracts must meet strict scrutiny

Question 6

Rights to privacy - fundamental rights under substantive due process

Answer 6

Right to marry
Right to procreate
Right to custody of children
Right of Parents to control upbringing
Right to purchase contraceptives
Right to Abortion (not strict scrutiny)
Right to private consensual sex
Right to refuse medical treatment (while competent) (no standard)
NO right to physician-assisted suicide

Question 7

Abortion

Answer 7

• States cannot prohibit abortion prior to viability which is the baby being able to survive outside the mother’s womb.
• After viability, state may prohibit abortions except to save mother life or health.

-State cannot place an undue burden on getting an abortion prior to viability. Includes:
24 hour waiting period is undue burden

-However, requiring a licensed physician and spousal cosent are not undue burdens. Parental notice for minors ok as long as alternate procedures are provided.

Question 8

Right to Travel feely

Answer 8

• Laws that restrict the right to travel freely among the states must meet strict scrutiny.
• Voting rule - 50 days is the maximum time for restricting out of staters from registering to vote
• No fundamental right to international travel (Rational Basis Test)

Question 9

Right to vote

Answer 9

• Any law denying someone the right to vote must meet strict scrutiny
• Using race to draw voting line - strict scrutiny
• At large elections ok unless discriminatory intent and impact

Question 10

Right to education

Answer 10

No fundemental right. Rational basis.

Question 11

Balancing Test for Regulatory Taking to Determine if Taking or Merely a Restriction

Answer 11

• If merely decreases the value of property does not amount to taking if there is still economically viable use of the property
• Court will consider
  1) the economic impact of the regulation on the claimant and
  2) whether the regulation substantially interferes with distinct, investment backed expectations of the claimant

Question 12

Applicable Standard Under Substantive Due Process Regulation

Answer 12

SDP affects everyone

• When a fundamental right is limited, action is evaluated under strict scrutiny
• In all other cases - Rational Basis

Question 13

Standard for Government Conditions on the Development of Private Property

Answer 13

-Must be justified by a benefit that is roughly proportionate to the burden imposed.

Question 14

Zoning Ordinances

Answer 14

• Ordnance that regulate the way real property may be used, pursuant to the police power do not amount to a taking, even if they deny an owner the highest and best use of his property, as long as they:
  1. Substantially advance legitimate state interests and
  2. Do not extinguish a fundamental attribute of ownership

Question 15

Deprivation of Liberty

Answer 15

Occurs if there is the loss of a significant freedom provided by the Constitution or a statute

Question 16

Deprivation of Property

Answer 16

Occurs if a person has an entitlement (reasonable expectation of a continued benefit) and that entitlement is not fulfilled.

Question 17

What is Required for the Government to Have Liability for a Deprivation of Procedural Due Process?

Answer 17

• Negligence by gov’t is not enough
• Must be some intentional government action or at least reckless action for liability to exist
• ex. Prisoner slips on a pillow - Not sufficient for dep. of DP
• In emergency situations the government is liable under due process only if its conduct shocks the conscience
  ex. Death in high speed police chase did not shock the conscience

Question 18

Ex Post Facto Laws

Answer 18

• Neither fed. or state gov’s can adopt these laws

- ONLY applies to CRIMINAL CASES

Question 19

Right to Refuse Medical Treatment

Answer 19

• Competent adults have the right to refuse even life-saving treatment
• State has a compelling interest in protecting the sanctity of life and so may require clear and convincing evidence that a person wanted treatment terminated before it is ended
• State may prevent family members from terminating treatment for another. Right belongs to individual
• No constitutional right to physician assisted suicide

Question 20

Procedural Due Process Analysis

Answer 20

1. Has there been a deprivation of life, liberty, or property?
2. If there has been a deprivation (and only if), then ask: What procedures are required?
   a. 3 Part Balancing Test
   i. Importance of interest to individual; and
   ii. The value of specific procedural safeguards
   to that interest; against
   iii. The Gov’t’s interest in fiscal and
   administrative efficiency

Question 21

Analysis for Taking

Answer 21

1. Is there a taking? If yes then,
2. Is it for public use?
   a. If no, Gov’t must return property
   b. If yes, step 3
3. Is just compensation paid?