Individual Liberties Flashcards
Define procedural due process.
the procedures the government must take to deprive a person of life, liberty, or property.
Define deprivation of liberty.
A loss of significant freedom provided by the constitution or a statute.
Define deprivation of property.
when a person is entitled to a benefit and that entitlement is not fulfilled.
(entitlement = reasonable expectation to the continued receipt of a benefit)
Does negligence by the government resulting in a deprivation of liberty or property give rise to liability?
No - the government is only liable for reckless or intentional deprivation.
What is the government’s duty re: protecting individuals from privately inflicted harms?
No duty, so no due process when the government fails to protect.
If there has been a deprivation of life, liberty, or property, what are the required procedures?
It depends on the outcome of a 3-part balancing test.
- the significance of the interest to the individual
- the ability of additional procedures to reduce an erroneous deprivation of liberty (increase the accuracy of fact-finding)
- the government’s interest (usually efficiency and saving govt $).
What procedures are required to meet DP in a welfare case?
Both notice and hearing
What procedures are required to meet DP to deprive a parent of custody?
Both notice and hearing
What procedures are required to meet DP to institutionalize an adult?
Both notice and hearing (unless it’s an emergency)
What procedures are required to meet DP to deny a person Social Security disability benefits?
Only a post-termination hearing.
What procedures are required to meet DP to do harm to a person’s reputation.
None - this alone is not a loss of liberty.
What procedures are required to meet DP if a prisoner asserts a loss of liberty claim?
Prisoners almost always lose.
What procedures are required to meet DP to claim punitive damages?
jury instructions to guide discretion, and judicial review to ensure award is reasonable.
Define substantive due process.
protection of (1) economic liberties and (2) safeguarding property
What standard of review is used to evaluate deprivation of economic liberties?
Rational basis
How does the 5th Amendment takings clause work (in basic terms)?
For the government to take private property, it must be for public use, and the govt must provide just compensation.
Define possessory taking.
The government confiscates or physically occupies property (no matter how small the area).
Define regulatory taking.
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.
What result if the government makes conditions on development of property?
It is not a taking if the benefit is roughly proportionate to the burden imposed.
Can a person bring a takings claim if the government regulation existed before they acquired the property?
Yes
What result if the government temporarily denies a person the use of their private property?
It is not a taking unless the government’s action is unreasonable.
How do you know when the taking is for public use?
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.
What constitutes just compensation?
FMV of the property taken.
Note: the government’s actual gain is irrelevant.
What is the basic principle of the Contracts Clause?
No state shall impair the obligations of contracts.
Does the Contracts clause apply to the federal government?
No, only to the state and local governments - when they interfere with already existing contracts.
What result if a state action interferes with future contracts?
Not a violation of the contracts clause.
What level of scrutiny do courts use when evaluating a state or local government’s interference with existing private contracts?
Blend of intermediate and strict scrutiny:
- does the legislation substantially impair a party’s rights under an existing contract, and if so…
- is the law reasonably and narrowly tailored means of promoting an important and legitimate public interest?
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?
Strict scrutiny
What is the constitutional status of ex post facto laws?
Unconstitutional in criminal context!
Is privacy a fundamental right protected by substantive DP?
Yes, absolutely.
What standard of review do courts use when there is governmental interference with the right to marry?
Strict scrutiny
What standard of review do courts use when there is governmental interference with the right to procreate?
Strict scrutiny
What standard of review do courts use when there is governmental interference with the right to custody of one’s children.
Only terminated if there is parental abuse or neglect.
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)?
Yes - states can do this.
What standard of review do courts use when there is governmental interference with the right to keep a family together (including extended family)?
Strict scrutiny
What standard of review do courts use when there is governmental interference with the right of parents to control the upbringing of their children?
Strict scrutiny
What standard of review do courts use when there is governmental interference with the right to an abortion?
States may regulate abortion so long as they do not create an undue burden on the ability to get an abortion prior to viability.
Can government be required to subsidize abortions or provide them in public hospitals?
No.
Can states require spousal consent for a woman to get an abortion?
No.
Can states require minors to have parental consent to get an abortion?
Only if there’s an alternative means where the minor can go before a judge who will determine her best interests.
What standard of review do courts use when there is governmental interference with the right to travel domestically?
Strict scrutiny.
Can a state pass laws that discourages people from moving to their state?
No this violates the fundamental right to domestic travel.
Do durational residency requirements violate the fundamental right to travel domestically?
Generally yes.
Deemed okay in the voting context so long as the requirement is no more than 50 days.
What standard of review do courts use when there is governmental interference with the right to vote?
Strict scrutiny.
What is the one-person, one-vote requirement?
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.
What is the constitutional status of at-large elections?
They are presumed unconstitutional unless there is proof that they exist for a discriminatory purpose.
What standard of review do courts use when governments use race in redistricting?
Strict scrutiny
What constitutional provision does this violate?: counting uncounted votes without standards in a Presidential election?
Equal Protection violation
What standard of review do courts use when there is governmental interference with the right to consensual same-sex activity in a private place?
Unarticulated
What standard of review do courts use when there is governmental interference with the right to die?
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.
Can a state prohibit individuals from terminating treatment for their family members?
Yes - fear of bad motives (e.g. to collect insurance).
The standard of review is unarticulated.
What standard of review do courts use when government interferes with the right to bear arms for self defense?
Unarticulated
What standard of review do courts use when there is governmental interference with the right to physician-assisted suicide?
Rational Basis Review (not a fundamental right)
What standard of review do courts use when there is governmental interference with the right to education?
Rational Basis Review (not a fundamental right)
What standard of review do courts use when there is governmental interference with the right to international travel?
Rational Basis Review (not a fundamental right)
