individual rights Flashcards
types of due process
procedural due process
substantive due process
equal protection
procedural due process
What procedures must the government follow when it takes away a person’s life, liberty or property?
i.e. notice, hearing
substantive due process
Whether the government has an adequate reason when taking away a person’s LLOP?
e.g. economic liberties, privacy
Adequacy depends on level of scrutiny
equal protection
Whether the government’s differences in the treatment is adequately justified?
Adequacy depends on level of scrutiny
procedural due process - analysis
- Has their been a deprivation of LLOP?
2. What procedures are required?
deprivation of liberty
A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
i.e. Except for an emergency, before an adult can be institutionalized, there must be notice and a hearing.
deprivation of property
A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.
NO rights/privileges distinction on due process.
entitlement
A person has a property interest if there is an entitlement.
An entitlement exists if there is a reasonable expectation to the continuation of the benefit.
procedural due process - analysis
Has their been a deprivation of LLOP?
- Government negligence is not sufficient to state a claim for a deprivation of due process.
- Generally, there must be INTENTIONAL govt action or at least reckless action for liability to exist.
- However, In emergency situations, the govt is liable under due process ONLY if its conduct “shocks the conscience.”
- “Shocks the conscience” means demonstrated with intent to cause harm.
- Generally, the govt’s failure to protect people from privately inflicted harms does not deny due process.
procedural due process - analysis
What procedures are required?
Balancing test for deprivation of LLOP
- The importance of the interest to the individual
- The ability of additional procedures to increase the accuracy of the fact-finding (more procedures-more accurate decisions)
- The government’s interests (efficiency)
procedural due process - analysis
examples of procedures
- Before welfare benefits are terminated, there must be notice and a hearing
- When SS disability benefits are terminated, there need only be a post-termination hearing
- Before a school can suspend or expel a student, there must be notice of the charges and an opportunity to explain. (Corporal punishment does not require DP)
- Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing
- Punitive awards require i) instructions to the jury and ii) judicial review to ensure reasonableness. (Grossly excessive punitive damages violate DP)
- An american citizen detained as an enemy combatant must be accorded DP
- Except in exigent circumstances, prejudgment attachment or government seizure of assets requires notice and a hearing. (Govt may seize prop used in illegal activity, even if it has an innocent owner.)
economic liberties
rational basis test for law affecting economic rights
takings clause
contracts clause
economic liberties
rational basis test for law affecting economic rights
On a DP challenge to employment regulation (i.e. minimum wage), trades/professions, or consumer protections, a rational basis test is used and government usually wins.
economic liberties
takings clause
The government may TAKE private property for PUBLIC use if it provides JUST COMPENSATION.
economic liberties
takings clause - analysis
- Is there a taking?
a. Is there a possessory taking? Govt confiscation or physical occupation of property (cable tv box)
b. Is there a regulatory taking? Govt regulation leaves no reasonable economically viable use of property (zoning ord) - Is it for public use?
- Is just compensation paid?
economic liberties
takings clause - takings exceptions
- Govt 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. (zoning or enviro law)
- Temporarily denying an owner use of property is NOT a taking SO LONG AS the govt’s action is reasonable. (3 yr moratorium on development)
economic liberties
takings clause
public use
Govt may take prop BUT ONLY for public use.
(But every taking is public use)
A taking is for public use as long as the govt acts out of the reasonable belief that the taking will benefit the public.
economic liberties
takings clause
just compensation
Govt may take prop for public use, but it must pay just compensation.
JC is measured in loss to owner in a reasonable market value terms.
Gain to the taker is irrelevant
economic liberties
contracts clause
No state shall impair the obligations of contracts.
economic liberties
contracts clause - analysis
Applies only to state or local interference w/existing Ks.
(Never applies to feds)
State or local interference w/private Ks must meet intermediate scrutiny
a. Does the legislation substantially impair a party’s rights under an existing K?
b. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
State or local interference w/govt Ks must meet strict scrutiny
The ex post facto clause does not apply in civil cases.
Retroactive civil liability only need meet rational basis test.
Ex post facto
An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or that increases the punishment for a crime after it was committed.
Bill of attainder
Bill of attainder is a law that directs punishment of a specific person(s) without a trial.
individual liberties
due process, economic liberties, privacy, right to bear arms, right to travel, right to vote
right to an education is NOT a fundamental right
privacy rights
(protected under substantive DP)
(strict scrutiny must be met)
right to marry right to procreate right to one's children right to keep the family together right to control the upbringing of one's children right to purchase and use contraceptives right to abortion right to engage in private consensual homosexual activity right to refuse medical treatment
