individual rights

Question 1

types of due process

Answer 1

procedural due process
substantive due process
equal protection

Question 2

procedural due process

Answer 2

What procedures must the government follow when it takes away a person’s life, liberty or property?
i.e. notice, hearing

Question 3

substantive due process

Answer 3

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

Question 4

equal protection

Answer 4

Whether the government’s differences in the treatment is adequately justified?
Adequacy depends on level of scrutiny

Question 5

procedural due process - analysis

Answer 5

1. Has their been a deprivation of LLOP?

2. What procedures are required?

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.
i.e. Except for an emergency, before an adult can be institutionalized, there must be notice and a hearing.

Question 7

deprivation of property

Answer 7

A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.
NO rights/privileges distinction on due process.

Question 8

entitlement

Answer 8

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.

Question 9

procedural due process - analysis

Has their been a deprivation of LLOP?

Answer 9

1. Government negligence is not sufficient to state a claim for a deprivation of due process.
2. Generally, there must be INTENTIONAL govt action or at least reckless action for liability to exist.
3. However, In emergency situations, the govt is liable under due process ONLY if its conduct “shocks the conscience.”
4. “Shocks the conscience” means demonstrated with intent to cause harm.
5. Generally, the govt’s failure to protect people from privately inflicted harms does not deny due process.

Question 10

procedural due process - analysis

What procedures are required?

Answer 10

Balancing test for deprivation of LLOP

1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of the fact-finding (more procedures-more accurate decisions)
3. The government’s interests (efficiency)

Question 11

procedural due process - analysis

examples of procedures

Answer 11

1. Before welfare benefits are terminated, there must be notice and a hearing
2. When SS disability benefits are terminated, there need only be a post-termination hearing
3. 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)
4. Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing
5. Punitive awards require i) instructions to the jury and ii) judicial review to ensure reasonableness. (Grossly excessive punitive damages violate DP)
6. An american citizen detained as an enemy combatant must be accorded DP
7. 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.)

Question 12

economic liberties

Answer 12

rational basis test for law affecting economic rights
takings clause
contracts clause

Question 13

economic liberties

rational basis test for law affecting economic rights

Answer 13

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.

Question 14

economic liberties

takings clause

Answer 14

The government may TAKE private property for PUBLIC use if it provides JUST COMPENSATION.

Question 15

economic liberties

takings clause - analysis

Answer 15

1. 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)
2. Is it for public use?
3. Is just compensation paid?

Question 16

economic liberties

takings clause - takings exceptions

Answer 16

1. 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.
2. A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. (zoning or enviro law)
3. 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)

Question 17

economic liberties
takings clause
public use

Answer 17

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.

Question 18

economic liberties
takings clause
just compensation

Answer 18

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

Question 19

economic liberties

contracts clause

Answer 19

No state shall impair the obligations of contracts.

Question 20

economic liberties

contracts clause - analysis

Answer 20

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.

Question 21

Ex post facto

Answer 21

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.

Question 22

Bill of attainder

Answer 22

Bill of attainder is a law that directs punishment of a specific person(s) without a trial.

Question 23

individual liberties

Answer 23

due process, economic liberties, privacy, right to bear arms, right to travel, right to vote
right to an education is NOT a fundamental right

Question 24

privacy rights
(protected under substantive DP)
(strict scrutiny must be met)

Answer 24

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

Question 25

privacy rights

right to custody of one’s children

Answer 25

But state may create an irrebuttable presumption that a married woman’s husband is the father of her child.

Question 26

privacy rights

right to keep the family together

Answer 26

Family is broader than parent/child and includes extended family.
To be a family, individuals must be related.

Question 27

privacy rights

right to abortion

Answer 27

Prior to viability, states may NOT prohibit abortion but may regulate abortion so long as they do not create an undue burden on the ability to obtain abortions
After viability, states MAY prohibit abortion UNLESS necessary to protect the woman’s life or health.
Govt has NO duty to subsidize abortions or provide abortions in public hospitals
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 28

privacy rights

right to refuse medial treatment

Answer 28

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
4. There is NO constitutional right to physician-assisted death

Question 29

right to bear arms

Answer 29

1. Right of people to have gun for self-defense
2. Govt can regulate who has guns, what type of guns are possessed, where guns can be taken
3. Right to bear arms applies to state and local govt through 14th AMD
4. SCOTUS did not indicate level of scrutiny
5. SCOTUS did not declare an absolute right to own a gun

Question 30

right to travel

Answer 30

Right to travel is a fundamental right under the Equal Protection Clause and under the P&I Clause of the 14th AMD.

Question 31

right to travel

rights

Answer 31

1. Laws that prevent people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny. (50 days max allowable residency req for voting)
3. Restrictions on foreign travel need meet only rational basis.
4. NO fundamental right to international travel

Question 32

right to vote

Answer 32

1. Laws that deny some citizens the right to vote must meet SS, but regulations of the electoral process to prevent fraud only need be on balance desirable. (poll tax, prop ownership requirement)
2. 1 person-1 vote MUST BE MET for all state and local elections. (Districts must be about the same in population)
3. At large elections ARE constitutional UNLESS there is proof of a discriminatory purpose
4. Use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes w/o standards in a presidential election violates equal protection.