Individual Rights Flashcards
A procedural due process inquiry asks . . .
whether gov’t has followed adequate procedures when it took away life, liberty, or property.
A substantive due process inquiry asks whether . . .
Gov’t has an adequate reason for taking away life, liberty, or property.
An equal protection inquiry asks whether . . .
the gov’t’s differences in the treatment of people are adequately justified.
What is the first question you should ask when posed with a procedural due process question?
Has there been a deprivation of life, liberty, or property?
A deprivation of liberty occurs if there is the loss of what?
A significant freedom provided by the Constitution or statute
Before an adult can be imprisoned, there must be ____ and ____.
Notice
a Hearing
If a parent elects to institutionalize a child, there only needs to be what to satisfy procedural DP?
A screening by a neutral fact-finder
A deprivation of property occurs if . . .
There is an entitlement and that entitlement is not fulfilled.
Government negligence is/isn’t sufficient for a deprivation of due process.
Isn’t
Harm to reputation is/isn’t enough to constitute a loss of liberty.
Isn’t
Gov’t negligence is not sufficient for a deprivation of due procress. Generally, there must be _____________ or at least _____________ for liability to exist.
Intentional gov’t action
Reckless gov’t action
In emergency situations, the government is liable under due process only if its conduct does what?
Shocks the conscience.
Prisoners always/sometimes/rarely/never have liberty interests.
Rarely
The government will only incur a duty to protect people from privately inflicted harm IF one of the following two things is true
1) Person is in gov’t custody; or
2) Gov’t creates the danger
In order to determine the procedures required under procedural DP, courts will balance what 3 factors?
Importance of the interest to the individual
Ability of additional procedures to increase the accuracy of the fact-finding
The Govt’s interest
Generally speaking, what is the government interest in a procedural DP problem?
Efficiency
Is an American citizen, held as an enemy combatant, entitled to due process?
Yes
Punitive damages require _______ and ________.
Instructions to the jury
Judicial review
Will due process concerns serve to invalidate an award of excessive punitive damages?
Yes
With one exception, the gov’t seizure of assets (i.e., prejudgment attachment) must be preceded by notice and hearing. What is the exception?
Exigent circumstances
Absent exigent circumstances, a gov’t seizure of assets (i.e., prejudgment attachment) must be preceded by which two things?
Notice and a hearing
True or false: corporal punishment requires due process
False. No DP required
Before a parent’s custody rights can be taken away, there must be what and what?
Notice and a hearing
For laws affecting economic rights, which level of scrutiny?
Rational basis
What is required in order for the gov’t to take private property for public use?
Just compensation
What are the two ways in which the gov’t can effectuate a taking?
Possessory taking
Regulatory taking
A possessory taking occurs when the government . . .
Confiscates or physically acquires property
A regulatory taking occurs when the gov’t . . .
Acts in such a way that it leaves a person without any reasonable economically viable use of his property
Is a decease in value enough to constitute a regulatory taking? Explain.
No. The act must leave a person without any reasonable economically viable use of his property
Government conditions of the development of property must be justified by a benefit that is ______________________ to the burden imposed. Otherwise, it is a taking.
Roughly proportionate
True or false: A property owner may not bring a takings challenge to regulations that existed at the time the property was acquired.
False
When will a temporary denial of an owner’s use of his property not be a taking?
When the gov’t’s action is reasonable.
When will the government’s use of a property be considered public?
When the gov’t acts out of a reasonable belief that the taking will benefit the public.
Just compensation for property is measured in terms of this, not this.
Measured in terms of loss to the owner
NOT gain to the taker.
What does the Contracts Clause of Article I, Section 10 say?
The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights.
The contracts clause applies only to ____ or ______ interference with this type of k.
State or local
Existing
State or local interference with _____ contracts must meet intermediate scrutiny.
Private
State or local interference with _____ contracts must meet strict scrutiny.
Gov’t
State or local interference with private contracts must meet _______ scrutiny.
Intermediate
State or local interference with government contracts must meet ______ scrutiny.
Strict
Describe how “intermediate scrutiny” is unique in its application to situations in which there is state or local interference with private contracts
It contains both intermediate scrutiny and rational basis language
Asks whether the legislation substantially imparts a party’s rights under an existing k.
If so, asks if the law is a reasonably and narrowly tailed means of promoting an important and legitimate gov’t interest.
intermediate scrutiny” asks which two questions in its application to situations in which there is state or local interference with private contracts
Asks whether the legislation substantially imparts a party’s rights under an existing k.
If so, asks if the law is a reasonably and narrowly tailed means of promoting an important and legitimate gov’t interest.
An ex post facto law is one that does what?
Criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
The Ex Post Facto Clause does NOT apply in which type of case?
Civil
Retroactive civil liability is evaluated under which level of scrutiny?
Rational Basis Test
A bill of attainder is one that . . .
Directs the punishment of a specific person or persons without a trial.
Privacy is/isn’t a fundamental rights protected under the substantive DP.
Is
A restriction against the right to marry can only be imposed if it meets this level of scrutiny. Why?
Strict
It is considered part of the right to privacy
The right to procreate is/isn’t a fundamental right protected under substantive dp.
Is
Laws infringing on the the right to procreate require what level of scrutiny?
Strict
A state may create what regarding a married woman, her husband, and her child
Create a irrebuttable presumption of paternity
The right to custody of one’s children is/isn’t a fundamental right protected under substantive dp.
Is
The right to keep the family together is/isn’t a fundamental right protected under substantive dp.
Is
Laws infringing on the the right to custody of one’s children and the right to keep the family together must meet which level of scrutiny?
Strict
The right to keep the family together is/isn’t a fundamental right protected under substantive dp.
Is
The right to purchase and use contraceptives is/isn’t a fundamental right protected under substantive dp.
Is
What feature of the unborn fetus will control the level of scrutiny in an abortion context?
Viability
What does “viability” in the abortion context mean?
Able to survive outside the womb
Prior to viability, states may not prohibit abortions, but may regulate them so long as . . .
They do not create an undue burden on the ability to obtain abortions.
A requirement for a 24-hour waiting period for abortions is/isn’t an undue burden on a person’s ability to obtain one.
Isn’t
A requirement that abortions be performed by licensed physician is/isn’t an undue burden on a person’s ability to obtain one.
Isn’t
The prohibition of “partial birth abortions” is/isn’t an undue burden on a person’s ability to obtain one.
Isn’t
After viability, states may prohibit abortions unless . . .
Abortion is necessary to protect the woman’s health or life.
Must a government help subsidize abortions?
No
Must a government provide subsidized abortions in public hospitals?
No
Spousal consent and notification laws for abortion are/aren’t unconstitutional.
Are
While spousal consent and notification laws for abortion are ordinarily unconstitutional, a state may require parental notice and/or consent for an unmarried minor’s abortion SO LONG AS . . .
The state creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself.
What case determined that the right to privacy protects the right to engage in private, consensual homosexual activity?
Lawrence v. Texas
While competent adults have the right to refuse medical treatment, a state may require _______________ that a person wanted treatment terminated before it is ended.
Clear and convincing evidence
Is a state permitted to prevent family members from termination medical treatment of another?
Yes
There is/isn’t a constitutional right to physical-assisted death.
Isn’t
What level of scrutiny is used to determined 2nd Amendment Cases?
Trick question. We’re not entirely sure.
The Second Amendment permits ownership of guns for this purpose.
Security
True of False? The 2nd Amendment right to bear arms is absolute.
False
The government can regulate _____, ______, and ______ under the 2nd Amendment.
Who can own
Where they can be possessed
What type of guns
Laws the prevent people from moving into a state are evaluated under which level of scrutiny?
Strict
Durational residency requirements are evaluated under which level of scrutiny?
Strict
What is the maximum length of time a state can require someone to live in its borders before he can qualify to vote?
50 days
Restrictions on foreign travel are evaluated under which level of scrutiny?
Rational basis
Laws that deny some citizens the right to vote are evaluated under which level of scrutiny?
Strict
What must be true of regulations of the electoral process to prevent fraud?
They must be “on balance, desirable.”
One-_____, one-_______ must be met for all state and local elections.
One-person, one-vote.
For any elected body divided into districts, what must be true of those districts?
Must have about the same population
At-large elections are constitutional UNLESS
There is proof of a discriminatory purpose.
The use of race in drawing election district lines is evaluated under which level of scrutiny?
Strict
The use of race in drawing election district lines, when meant to benefit minorities, is evaluated under which level of scrutiny?
Still strict
True or False? Counting uncounted votes without standards in a presidential election violates EP.
True
There is/isn’t a fundamental right to education.
Isn’t.
For each of the three levels of scrutiny (RB, IS, SS), on whom is the burden of proof?
RB = challenger
IS = gov’t
SS = gov’t
The Contract Clause applies only to state legislation, not ____ ______
Court decisions.
Bills of Attainder are made unconstitutional by Article __, Sections __ and ____.
Article I, Sections 9 (Congress) and 10 (state)
