Individual Liberties Flashcards
Procedural Due Process
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
Substantive Due Process
- 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.
Takings Clause of the 5th Amendment
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
Two types of Property Takings
- Possessory taking- any physical occupation of the property by gov’t
- 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
Contracts Clause
- 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
Rights to privacy - fundamental rights under substantive due process
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
Abortion
- 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.
Right to Travel feely
- 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)
Right to vote
- 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
Right to education
No fundemental right. Rational basis.
Balancing Test for Regulatory Taking to Determine if Taking or Merely a Restriction
- 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
Applicable Standard Under Substantive Due Process Regulation
SDP affects everyone
- When a fundamental right is limited, action is evaluated under strict scrutiny
- In all other cases - Rational Basis
Standard for Government Conditions on the Development of Private Property
-Must be justified by a benefit that is roughly proportionate to the burden imposed.
Zoning Ordinances
- 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
Deprivation of Liberty
Occurs if there is the loss of a significant freedom provided by the Constitution or a statute
Deprivation of Property
Occurs if a person has an entitlement (reasonable expectation of a continued benefit) and that entitlement is not fulfilled.
What is Required for the Government to Have Liability for a Deprivation of Procedural Due Process?
- 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
Ex Post Facto Laws
- Neither fed. or state gov’s can adopt these laws
- ONLY applies to CRIMINAL CASES
Right to Refuse Medical Treatment
- 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
Procedural Due Process Analysis
- Has there been a deprivation of life, liberty, or property?
- 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
Analysis for Taking
- Is there a taking? If yes then,
- Is it for public use?
a. If no, Gov’t must return property
b. If yes, step 3 - Is just compensation paid?
