Individual Rights Flashcards
Procedural due process
Whether the gov’t has followed adequate procedures when it takes away a person’s life, liberty, or property.
(e.g. what kind of notice, hrg provided?)
Substantive due process
Whether the gov’t has an adequate reason for taking away a person’s life liberty, or property
(depends on level of scrutiny used)
Equal protection
Whether there’s an adequate justification for the government’s differences in the treatment of people
(depends on level of scrutiny used)
How to tell if a problem is procedural due process, substantive due process, or equal protection
- Ask:
- What’s the relief requested?
- What’s the nature of the claim?
- If the plaintiff wants better procedures, it’s procedural due process
- If the plaintiff wants the gov’t acts invalid due to lack of justification, it’s substantive due process
- If the plaintiff is saying they were treated differently than those similarly situated, it’s equal protection
When a deprivation of liberty occurs
Occurs when there is a loss of a significant freedom provided by the Constitution or a statute
Examples of loss of liberty
- Unless there’s an emergency, must have a notice and hearing to commit an adult,
- for a parent admitting a kid, only a screening by a neutral factfinder;
- harm to reputation by itself is not a loss of liberty;
- prisoners rarely have liberties.
A deprivation of property occurs when
occurs when there is an entitlement and that entitlement is not fulfilled
Rights and privileges distinction for the purpose of due process analysis
Discarded by the S. Ct. in the 1960s (often a trick q in the MBE. If this is an answer choice, it’s wrong)
When entitlement exists
exists when there is a reasonable expectation to continue receipt of a benefit
Examples of deprivation of property
Person fired w/o due process although they were promised the job for a year…
Government negligence and due process
- Government negligence is not sufficient for a deprivation of due process
- There must be an intentional government act or at least reckless action
- However, in emergency situations, the government isliable under due process only if its conduct “shocks theconscience.”
- Generally, the government’s failure to protect people from privately inflicted harm does not deny due process
- Government has duty to provide protection only if it literally creates the danger, or when the person is in government custody
Procedural Due Process Test
Balance:
- the importance of the interest to the individual 2)
- ability of additional procedures to increase the accuracy of fact-finding, and
- the government’s interests (efficiency)
Types of benefits that require a notice and hearing before they can be terminated
- welfare benefits
- permanent termination of custory
Benefit that requires only a post-termination hearing for it to be terminated
social security disability benefits
Student’s right to procedural DP in school
- Before a school can discipline a student there must be notice of the charges and an opportunity to explain
- Exception: Corporal punishment in schools does not require any due process hearing
Procedural Due Process requirement for proper punitive damages
- Punitiva damage awards require instructions to the jury and judicial review to ensure reasonableness
- excess punitive damage awards are unconstitutional.
Procedural Due Process for enemy combatants
An American citizen detained as an enemy combatant must be accorded due process
Government Seizure of Assets
- Prejudgment attachment or government seizure of assets require notice and a hearing
- Exception- Exigent Circumstances
- if there’s reason to believe the person would get rid of the property if notice came before the hearing, seizure may occur immediately after the notice
- Exception- Illegal Activties
- Government may seize assets used in illegal activity, even if the property has an innocent owner
Level of scrutiny used for economic liberties
- Only a rational basis test is used for laws affecting economic rights
- Constitution provides only minimal protection for economic liberties
Examples of laws affecting economic liberties
(RB review)
due process challenge to:
- a minimum wage law,
- state laws that regulate people practicing in certain trades or professions
- consumer protection laws
The takings clause
The government may take private property for public use if it provides just compensation
Possessory taking
Government confiscation of physical occupation of property
Regulatory taking
government regulation that leaves no reasonable economically viable use of the property
Government regulation of property development
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed
Subsequent property owner’s takings challenge
A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
Takings for temporary denial of owner’s use of property
Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable
Public use definition
the government acts out of a reasonable belief that the taking will benefit the public
Just compensation definition
Economic market value of property in hands of owner.
Measured in terms of the loss to the owner, not the gain to the taker (the government)
Example of economic market value
If the government takes private property worth $100k, but will receive $100 million in benefits from its use of that land, it must give the owner $100,000
Result if If taking was not for public use
If this was not for public use Government must return the property
The contracts clause
No state shall impair the obligations of contracts
applicability of the contracts clause
- applies only to state or local interference with existing contracts
- federal interference with existing contracts must be challenged under due process
Requirement for contract claim to be heard in the courts
- Must be an already existing contract interfered with
- State and Local governments free to regulate future contracts
Scrutiny level for state or local interference with private contracts
state or local interference with private contracts must meet intermediate scrutiny
Intermediate scrutiny test for state and local interference with private contracts
- Does the legislation 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 public interest?
State and local interference with government conracts
State or local interference with government contracts must meet strict scrutiny
(gov’t can’t get out of its own contracts)
Ex post facto clause definition
a law that criminally punishes conduct that was lawful when it was done, or one that increases punishment for a crime after it was committed.
Ex post facto clause rules
- Neither federal or state government can adopt ex post facto laws that are criminal laws
- the ex post facto clause does not apply in civil cases
- Retroactive civil liability only need meet a rational basis test
bill of attainer
a law that directs the punishment of a specific person or persons without a trial
(unconstitutional)
Right to privacy scrutiny level
- privacy is a fundamental right protected under substantive due process
- if the government interferes with privacy rights, strict scrutiny is used
List of privacy rights
Gov’t can violate these rights only if SS is met
- the right to marry (incl. same sex);
- the right to procreate
- right to custody
- right to keep the family together
- right to control the upbringing of one’s children
- the right to purchase and use contraceptives
- the right to abortion
- right to engage in private consensual homosexual activity.
Same sex marraige scrutiny level
No defined scrutiny used; violates EP clause
right to custody presumption
State may create a rebuttable presumption that a married woman’s husband is the father of her child
The right to keep the family together
includes extended family (e.g. Ohio tenant law);
but they must be related
Right to control upbringing of one’s children
- includes right to send kid to religious school
- Due Process violation when court affords grandparent visitation over parents’ objections
The right to abortion
- Prior to viability outside the womb, states may not prohibit abortions
- but they may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions
Abortion right examples
Not undue burden:
- 24 hr waiting period
- requirement that abortions be performed by licensed physician
- prohibition of partial birth abortions
undue burden:
- requiring physicians to have admitting privileges at a hospital within 30 miles
- that a facility have “ambulatory surgical facilities”
State restriction on abortion after viability
After viability, states may prohibit abortions unless necessary to protect the woman’s life or health
Government role in funding abortions
as it pertains to abortions, the government has no duty to subsidize abortions or provide abortions in public hospitals
spousal consent and notification laws for abortion
spousal consent and notification laws are unconstitutional
Parental consent laws for abortion
- A state may require parental notice/consent for an unmarried minor’s abortion
- Must also create alternative judicial proceeding
- minor can go to a judge for approval
- Judge will approve if he finds it would be in the minor’s best interests or that she is mature enough to decide for herself.
Scrutiny level for the right to privacy protection of private consensual homosexual activity
There is no specified scrutiny for the right to privacy protection of private consensual homosexual activity
The right to refuse medical treatment
- Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
- A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
- A state may prevent family members from terminating treatment for another
Right to physician-assisted death
no constitutional right to physician-assisted death
Only second amendment case
(DC v. Heller)
- The second amendment protects the right to have guns in one’s home for the sake of security.
- No bans on handguns in DC.
- Scrutiny level not indicated.
DC v. Heller exception
- Right to bear arms not absolute.
- The government can regulate:
- where you have guns (e.g. schools),
- who has guns (e.g. felons and mentally ill)
- what type of guns you have.
- But no blanket bans.
Restrictions on moving to another state
- Laws that prevent people from moving into a state must meet Strict scrutiny
- Durational residency requirements must meet strict scrutiny
- For voting, 50 days is the maximum allowable durational residency requirement.
Restrictions on foreign travel
Restrictions on foreign travel must meet rational basis
(no fundamental right to international travel)
Restriction on right to vote
- Laws that deny some citizens the right to vote must meet strict scrutiny
- but regulations of the electoral process to prevent fraud only need be on balance desirable
Poll taxes/property ownership voting requirements
Poll taxes and property ownership requirements for voting are unconstitutional
One person one-vote requirement
One-person, one-vote must be met for all state and local elections.
At large elections
At-large elections (all voters vote for all officers) are constitutional unless there is proof of a discriminatory purpose
Gerrymandering
The use of race in drawing election district lines must meet strict scrutiny
Election standards
Counting uncounted votes without standards in a presidential election violates Equal Protection
Right to education
There is no fundamental right to education
