Individual Rights

Question 1

If the Federal Government is discriminating:

Answer 1

The Due Process Clause of the 5th Amendment should be invoked.

Question 2

There are three provisions of the Bill of Rights that cannot be asserted via the 14th Amendment Due Process Clause

Answer 2

1) 5thA: right to indictment by a grand jury
2) 7thA: right to a jury trial in civil cases; and
3) 8thA: Excessive Fines Clause

Question 3

Against the states, the ___ Amendment _____ Clause should be invoked.

Answer 3

14, Due Process

Question 4

For discrimination by state governments, usually the Equal Protection Clause of the 14th Amendment will apply unless:

Answer 4

1) the state is discriminating against out of state business interest or corporation. DP Clause might apply.
2) state is discrimination against citizens of another state. P& applies.

Question 5

Privileges and Immunities Clause of the 14th amendment is typically a wrong answer but could be right in regard to:

Answer 5

travel

Question 6

The 14th Amendment DP clause allows:

Answer 6

the Bill of Rights to be invoked against the states

Question 7

The 5th Amendment DP clause applies:

Answer 7

directly to the federal government

Question 8

Both the 14th and 5th Amendment DP clause offer the following protection:

Answer 8

Procedural DP & Substantive DP

Question 9

Procedural Due Process

Answer 9

Protects persons against deprivations of life liberty or property without due process of the law.
Persons: all people not just citizens, and corporation
Liberty: very broad and includes freedom from bodily restraint and physical punishment. Basically anything a person wants to do with their body.
Property: narrower. If the state can take something away for no reason, no property interest.
Property: public education, public employment (tenure or for-cause), welfare benefits, drivers licenses
Life: If the state is trying to execute someone, it must provide due process of law.

Question 10

What process is due?

Answer 10

The government must give two things before any deprivation:

1) adequate notice
2) Hearing

Question 11

What is adequate notice or hearing?

Answer 11

1) the importance of the individual interest protected;
2) the risk of an erroneous deprivation of this interest through the procedures use; and
3) the government’s interest in streamlined procedures.

Question 12

Substantive due process

Answer 12

These rights are not spelled out in constitution.

Question 13

Substantive due rights are not

Answer 13

economic

Question 14

Rational basis review

Answer 14

The plaintiff must show that the law is not rationally related to any legitimate government purpose. This is very easy to meet.

Question 15

Both over inclusive and under inclusive laws will meet

Answer 15

rational basis review

Question 16

Strict scrutiny:

Answer 16

If the government wants to regulate personal rights, then it has to meet the highest level of scrutiny, strict scrutiny.

Question 17

Test for strict scrutiny:

Answer 17

A compelling government interest; and

there is no other way to serve (narrowly tailored) that interest other than the regulation at issue

Question 18

SCAMPERD or DECRAMPS

Answer 18

Sexual orientation, contraception, abortion, marriage, possess, education, relatives, death

Question 19

Privacy rights:

Answer 19

1) Contraceptives: Buy and Use
2) Marriage: right to marry
3) Abortion: A woman has a protected privacy interest in choosing to have an abortion before the fetus is viable. Any regulation on pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.

Question 20

Examples of undue burden (abortion)

Answer 20

1) a total ban of abortion
2) spousal consent required
3) spousal notification
4) recording the names of patients who seek abortions
5) requires minors to get parental consent without a judicial bypass option

Question 21

Does not create an undue burden (abortion)

Answer 21

1) parental consent with a bypass option
2) 24 hour waiting period
3) a requirement that doctors give truthful and non-misleading information to women seeking abortions
4) refusing public funds
5) a prohibition on certain methods of abortion if they are not the safest

Question 22

Abortion subsequent to viability:

Answer 22

a state cannot force a woman to continue a pregnancy if it endangers her life or health.

Question 23

Privacy Right: Family Relations

Answer 23

1) government cannot prohibit members of an extended family from living in a single household
2) the state can ban unrelated persons from living together in a single family household

Question 24

Privacy Right: Sexual Orientation

Answer 24

1) It is unconstitutional to criminalize homosexual sodomy or other homosexual intimacies and autonomy.
2) Level of scrutiny: rational basis scrutiny

Question 25

Privacy Right: Private Education

Answer 25

Parents have a right to privately educate their children outside the public school system.

Question 26

Possession of Obscene Material

Answer 26

in the privacy of one's home. However, there is not a protected right to sell or buy that same material.

Question 27

Exception for Obscene Material

Answer 27

no right to child pornography

Question 28

Right to Die (just refuse medical treatment)

Answer 28

There is a right to refuse unwanted medical procedures such as life support. A terminally ill patient has no right to suicide or assisted suicide

Question 29

Right to travel (not privacy right)

Answer 29

14th amendment P&I clause

Question 30

Right to International travel:

Answer 30

is not absolute and may be subject to reasonable restrictions in the name of national security

Question 31

Right to Vote ( not a privacy right)

Answer 31

15th: states cannot discriminate with respect to race and the right to vote 19th: no sex discrimination 24th: there can be no federal poll taxes; also not state poll taxes but not from 24th 26th: all citizens 18 years or older can vote

Question 32

General fundamental right to vote

Answer 32

Total Ban: Strict Scrutiny

Question 33

voting restrictions that are constitutional

Answer 33

a) reasonable residency requirements b) reasonable voter registration requirements c) reasonable regulation of the time and manner of casting votes d) denying felons the right to vote

Question 34

voting restrictions which are unconstitutional:

Answer 34

1) poll tax 2) cannot require that voters at school board elections own property; and 3) cannot count votes using standards that lack uniformity or are too vague

Question 35

Who can vote for state electors?

Answer 35

Anyone who may vote for state legislature

Question 36

Takings Clause

Answer 36

The 5th amendment provides that the federal government cannot take: private property for public use without just compensation. This prohibition applies to the states as well, through the Due Process Clause of the 14th Amendment.

Question 37

Two kinds of takings:

Answer 37

1) Direct Government Appropriation : where the government actually take someone's property 2) Regulatory taking: where the government doesn't actually take someone's property, but imposes some sort of regulatory requirement that is so onerous, it is effectively the same thing.

Question 38

Three categories in determining whether a regulatory requirement is so onerous as to amount to a taking:

Answer 38

a) if the regulation requires the property owner to suffer some permanent physical invasion b) deprivation of all economically beneficial use c) the government will balance the economic and physical impact of the regulation on the property owner as well as the duration and character of the government action.

Question 39

Limit on eminent domain?

Answer 39

The SC interpreted the public use language of the Takings Clause to mean public purpose. This standard is easily met.