Individual Rights

Question 1

Main Areas of Individual Rights

Answer 1

1. Procedural due process
2. Substantive due process
3. Equal protection

Question 2

Procedural due process

Answer 2

whether the govt is provided adequate procedures when it takes someones life, liberty or property

Question 3

Substantive due process

Answer 3

Whether the govt has an adequate reason for taking away someone’s life, liberty or property

Depends on levels of scruty, but subs DP is used to protect econ liberties and privacy

Question 4

Equal Protection

Answer 4

Whether the govts differences in the treatment of people are adequately justif

Question 5

Procedural DP Questions/Steps

Answer 5

1. Has there been a deprivation of life, liberty, or property?
2. What procedures are required?

If you answer that there has been
a deprivation of life, lib, prop - then go to step 2.

Question 6

Deprivation of Liberty

Answer 6

A deprivation of liberty occurs if there is the loss of a
significant freedom provided by the Constitution or a statute

Examples:

• Except in an emergency, before an adult to be institutionalized there needs to be a notice in a hearing
• When it is a parent institutionalizing a child, there only needs to be a screening by a neutral fact finder approves the commitment
• Harm to reputation by itself is not a loss of liberty
• Prisoners rarely have liberty interests

Question 7

Deprivation of Property

Answer 7

A deprivation of property occurs if there is an entitlement
and that entitlement is not fulfilled

Entitlement exists where there is a reasonable expectation to continue receipt of the benefit: i.e. being promised a job for a full year and getting fired early requires DP;

Question 8

Government negligence and Deprivation of DP

Answer 8

• Government negligence is not sufficient for a deprivation of due process.
  
  • Generally, there must be intentional government action or at least reckless action for liability to exist.
  • However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”

Question 9

Government Failure to Protect People

Answer 9

Generally, the government’s failure to protect people from privately inflicted harms does not deny due process

Only if a person in govt custody, or if the govt provides the danger, will the government have any duty to provide protection.

Question 10

Test for what Procedures are Required for Procedural DP

Answer 10

The test: Balance

1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of the fact-finding
3. The government’s interests
   
   • Usually efficiency and saving money

Question 11

Examples of Procedures for Procedural DP

Answer 11

1. Before welfare benefits can be terminated, there must be notice in the hearing
2. When Social Security disability benefits are terminated, there only needs to be a post termination hearing
3. When a student is disciplined by a public school, there must be notice of the charges and an opportunity to explain (suspension or expulsion) - there doesn’t need to be a trial: corporal punishment in schools (spanking) does not require DP
4. Before a parents right to custody of a child can be permanently terminated, there must be notice in a hearing
5. Punitive damages require instructions to the jury and judicial review; grossly excessive punitive damages violates DP
6. American citizen held as an enemy combatant must be given DP
7. Except in exigent circumstances, prejudgment attachment or govt seizure of assets, must be preceded by notice
8. in a hearing - govt may seize property used in illegal activity, even if it has an innocent owner

Question 12

Economic liberties

Answer 12

Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.

Question 13

The takings clause.

Answer 13

The government may take private property for public
use if it provides just compensation.

Court does not use levels of scrutiny for takings clause - it applies its own test:

Question 14

Test for Takings Clause

Answer 14

1. Is there a taking?
2. Is it for public use?
3. Is just compensation paid?

Question 15

The ways the Government can take & notes

Answer 15

1. possessory taking—Government confiscation or physical occupation of property is a taking.
2. regulatory taking—Government regulation is a taking if it leaves no reasonable economically viable use of the property.

Note

• Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking
• A property owner may bring a takings challenge to regulations that existed at the time the property was acquired
• Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable.
  
  • Temporarily denying an owner the right to develop the property is not a taking

Question 16

Public Use

Answer 16

If not for public use, the government will have to give property back - It is a taking for public use so long as a government acts out of a reasonable belief the taking will benefit the public

Question 17

Just Compensation

Answer 17

Just compensation is measured by the loss to the owner in FMV terms; gain to the taker is irrelevant

Question 18

The Contracts Clause

Answer 18

No state shall impair the obligations of contracts.

Question 19

Rules for the Contracts Clause

Answer 19

1. Applies only to state or local interference with existing contracts
2. State or local interference with private contracts must meet intermediate scrutiny
   
   • 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?
3. State or local interference with government contracts must meet strict scrutiny
4. The ex post facto clause does not apply in civil cases.
   
   • (An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed).
   • Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)

Question 20

Fundamental Privacy Rights

Answer 20

1. The right to marry
2. The right to procreate
3. The right to custody of one’s children
4. The right to keep the family together
5. The right to control the upbringing of one’s children
   
   • Includes extended family
6. The right to purchase and use contraceptives
7. The right to abortion
8. The right to privacy protects a right to engage in private consensual homosexual activity
9. The right to refuse medical treatment

There is not a constitutional right to physician-assisted death.

Question 21

Right to Abortion

Answer 21

Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions.

• Viability = time the fetus can survive outside the womb

Examples:

• a requirement for a 24 hour waiting period for abortions is not an undue burden.
• a requirement that abortions be performed by licensed physicians is not an undue burden
• the prohibition of “partial birth abortions” is not an undue burden.

After viability, states may prohibit abortions unless
necessary to protect the woman’s life or health.

Question 22

Government’s Duty to Provide/Subsidize Abortions

Answer 22

The government has no duty to subsidize abortions or
provide abortions in public hospitals

Question 23

Spousal & Parent Notification/Consent to Abortion Laws Rules

Answer 23

• Spousal consent and notification laws are unconstitutional
• A state may require parental notice and/or consent for an unmarried minor’s abortion so long as it 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

Question 24

Level of Scrutiny for Private Homosexual Sexual Activity

Answer 24

Level of scrutiny unknown

Question 25

The right to refuse medical treatment

Answer 25

1. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
2. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
3. A state may prevent family members from terminating treatment for another.

Question 26

The second amendment right to bear arms

Answer 26

No level of scrutiny, but government can regulate who, where and type for guns

definitely for militias; 2A now predicts people to have guns in their home for security

Question 27

The right to travel

Answer 27

• Fundamental right under the Equal Protection clause and the privileges immunity clause under the 14th A
• Laws that prevent people from moving into a state must meet strict scrutiny
• Restrictions on foreign travel need meet only the rational basis test

Question 28

Durational residency requirements

Answer 28

• Durational residency requirements must meet strict scrutiny
• For voting - 50 days is max aloud durational residency req
• These reqs chill interstate travel and migration

Question 29

The right to vote

Answer 29

• 15th Amendment; fundamental rights under equal protection clause
• 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 - Ex: Poll taxes are impermissible
  
  • Property ownership reqs for voting are almost never allowed
  • Laws to prevent fraud in voting that are on balance desirable or ok

Question 30

Rules on Elections

Answer 30

1. One-person - one-vote must be met for all state and local elections
   
   • All districts must be about the same in population
2. At-large elections are constitutional unless there is proof of a discriminatory purpose
   
   • All of the voters vote for all of the office holders
3. The use of race in drawing election district lines must meet strict scrutiny
4. Counting uncounted votes without standards in a presidential election violates equal protection

Question 31

Right to Education

Answer 31

There is no fundamental right to education

Question 32

Rights triggering
strict scrutiny

Answer 32

1. Right to marry
2. Right to procreate
3. Right to custody of children
4. Right to keep family together
5. Right to control raising of children
6. Right to purchase and use contraceptives
7. Right to travel
8. Right to vote
9. Freedom of speech
   
   • (covered under First Amendment, §VIII)
10. Freedom of association
    
    • (covered under First Amendment, §VIII)
11. Free exercise of religion
    
    • (if the law burdening religion is not a neutral law of general applicability)
    • (covered under First Amendment, §VIII)

Question 33

Rights triggering
“Undue burden test”

Answer 33

Right to abortion

Question 34

Not a fundamental right
(Only rational basis review)

Answer 34

• Right to practice a trade or profession
• Right to physician-assisted death
• Right to education

Question 35

Level of scrutiny unknown

Answer 35

• Right to engage in private consensual homosexual activity
• Right to refuse medical treatments
• Right to possess firearms