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Constitutional Law > Individual Liberties > Flashcards

Individual Liberties Flashcards

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1
Q

Define procedural due process.

A

the procedures the government must take to deprive a person of life, liberty, or property.

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2
Q

Define deprivation of liberty.

A

A loss of significant freedom provided by the constitution or a statute.

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3
Q

Define deprivation of property.

A

when a person is entitled to a benefit and that entitlement is not fulfilled.
(entitlement = reasonable expectation to the continued receipt of a benefit)

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4
Q

Does negligence by the government resulting in a deprivation of liberty or property give rise to liability?

A

No - the government is only liable for reckless or intentional deprivation.

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5
Q

What is the government’s duty re: protecting individuals from privately inflicted harms?

A

No duty, so no due process when the government fails to protect.

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6
Q

If there has been a deprivation of life, liberty, or property, what are the required procedures?

A

It depends on the outcome of a 3-part balancing test.

  1. the significance of the interest to the individual
  2. the ability of additional procedures to reduce an erroneous deprivation of liberty (increase the accuracy of fact-finding)
  3. the government’s interest (usually efficiency and saving govt $).
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7
Q

What procedures are required to meet DP in a welfare case?

A

Both notice and hearing

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8
Q

What procedures are required to meet DP to deprive a parent of custody?

A

Both notice and hearing

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9
Q

What procedures are required to meet DP to institutionalize an adult?

A

Both notice and hearing (unless it’s an emergency)

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10
Q

What procedures are required to meet DP to deny a person Social Security disability benefits?

A

Only a post-termination hearing.

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11
Q

What procedures are required to meet DP to do harm to a person’s reputation.

A

None - this alone is not a loss of liberty.

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12
Q

What procedures are required to meet DP if a prisoner asserts a loss of liberty claim?

A

Prisoners almost always lose.

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13
Q

What procedures are required to meet DP to claim punitive damages?

A

jury instructions to guide discretion, and judicial review to ensure award is reasonable.

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14
Q

Define substantive due process.

A

protection of (1) economic liberties and (2) safeguarding property

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15
Q

What standard of review is used to evaluate deprivation of economic liberties?

A

Rational basis

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16
Q

How does the 5th Amendment takings clause work (in basic terms)?

A

For the government to take private property, it must be for public use, and the govt must provide just compensation.

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17
Q

Define possessory taking.

A

The government confiscates or physically occupies property (no matter how small the area).

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18
Q

Define regulatory taking.

A

The government makes a law that leaves the private property owner with no reasonable, economically viable use of the property.

A mere reduction in property’s value is not a taking.

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19
Q

What result if the government makes conditions on development of property?

A

It is not a taking if the benefit is roughly proportionate to the burden imposed.

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20
Q

Can a person bring a takings claim if the government regulation existed before they acquired the property?

A

Yes

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21
Q

What result if the government temporarily denies a person the use of their private property?

A

It is not a taking unless the government’s action is unreasonable.

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22
Q

How do you know when the taking is for public use?

A

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

Even if a private individual is benefited as a result, as long as the government’s purpose is public, that counts.

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23
Q

What constitutes just compensation?

A

FMV of the property taken.

Note: the government’s actual gain is irrelevant.

24
Q

What is the basic principle of the Contracts Clause?

A

No state shall impair the obligations of contracts.

25
Q

Does the Contracts clause apply to the federal government?

A

No, only to the state and local governments - when they interfere with already existing contracts.

26
Q

What result if a state action interferes with future contracts?

A

Not a violation of the contracts clause.

27
Q

What level of scrutiny do courts use when evaluating a state or local government’s interference with existing private contracts?

A

Blend of intermediate and strict scrutiny:

  1. does the legislation substantially impair a party’s rights under an existing contract, and if so…
  2. is the law reasonably and narrowly tailored means of promoting an important and legitimate public interest?
28
Q

What level of scrutiny do courts use when evaluating a state or local government’s interference with contracts to which the government is a party?

A

Strict scrutiny

29
Q

What is the constitutional status of ex post facto laws?

A

Unconstitutional in criminal context!

30
Q

Is privacy a fundamental right protected by substantive DP?

A

Yes, absolutely.

31
Q

What standard of review do courts use when there is governmental interference with the right to marry?

A

Strict scrutiny

32
Q

What standard of review do courts use when there is governmental interference with the right to procreate?

A

Strict scrutiny

33
Q

What standard of review do courts use when there is governmental interference with the right to custody of one’s children.

A

Only terminated if there is parental abuse or neglect.

34
Q

May states create an irrebutable presumption that a married woman’s husband is the father of her child (thereby potentially depriving the actual biological father custody)?

A

Yes - states can do this.

35
Q

What standard of review do courts use when there is governmental interference with the right to keep a family together (including extended family)?

A

Strict scrutiny

36
Q

What standard of review do courts use when there is governmental interference with the right of parents to control the upbringing of their children?

A

Strict scrutiny

37
Q

What standard of review do courts use when there is governmental interference with the right to an abortion?

A

States may regulate abortion so long as they do not create an undue burden on the ability to get an abortion prior to viability.

38
Q

Can government be required to subsidize abortions or provide them in public hospitals?

A

No.

39
Q

Can states require spousal consent for a woman to get an abortion?

A

No.

40
Q

Can states require minors to have parental consent to get an abortion?

A

Only if there’s an alternative means where the minor can go before a judge who will determine her best interests.

41
Q

What standard of review do courts use when there is governmental interference with the right to travel domestically?

A

Strict scrutiny.

42
Q

Can a state pass laws that discourages people from moving to their state?

A

No this violates the fundamental right to domestic travel.

43
Q

Do durational residency requirements violate the fundamental right to travel domestically?

A

Generally yes.

Deemed okay in the voting context so long as the requirement is no more than 50 days.

44
Q

What standard of review do courts use when there is governmental interference with the right to vote?

A

Strict scrutiny.

45
Q

What is the one-person, one-vote requirement?

A

congressional districts must represent the same number of people - so states must redistrict to ensure that each congress person represents exactly the same number of people.

46
Q

What is the constitutional status of at-large elections?

A

They are presumed unconstitutional unless there is proof that they exist for a discriminatory purpose.

47
Q

What standard of review do courts use when governments use race in redistricting?

A

Strict scrutiny

48
Q

What constitutional provision does this violate?: counting uncounted votes without standards in a Presidential election?

A

Equal Protection violation

49
Q

What standard of review do courts use when there is governmental interference with the right to consensual same-sex activity in a private place?

A

Unarticulated

50
Q

What standard of review do courts use when there is governmental interference with the right to die?

A

States can require clear and convincing evidence that the person wanted treatment to be terminated before the doctors pull the plug.

The standard of review is unarticulated.

51
Q

Can a state prohibit individuals from terminating treatment for their family members?

A

Yes - fear of bad motives (e.g. to collect insurance).

The standard of review is unarticulated.

52
Q

What standard of review do courts use when government interferes with the right to bear arms for self defense?

A

Unarticulated

53
Q

What standard of review do courts use when there is governmental interference with the right to physician-assisted suicide?

A

Rational Basis Review (not a fundamental right)

54
Q

What standard of review do courts use when there is governmental interference with the right to education?

A

Rational Basis Review (not a fundamental right)

55
Q

What standard of review do courts use when there is governmental interference with the right to international travel?

A

Rational Basis Review (not a fundamental right)

Constitutional Law (11 decks)

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