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Constitutional Law > Individual Rights > Flashcards

Individual Rights Flashcards

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1
Q

Procedural due process

A

Whether the gov’t has followed adequate procedures when it takes away a person’s life, liberty, or property.

(e.g. what kind of notice, hrg provided?)

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2
Q

Substantive due process

A

Whether the gov’t has an adequate reason for taking away a person’s life liberty, or property

(depends on level of scrutiny used)

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3
Q

Equal protection

A

Whether there’s an adequate justification for the government’s differences in the treatment of people

(depends on level of scrutiny used)

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4
Q

How to tell if a problem is procedural due process, substantive due process, or equal protection

A
  • Ask:
    • What’s the relief requested?
    • What’s the nature of the claim?
  • If the plaintiff wants better procedures, it’s procedural due process
  • If the plaintiff wants the gov’t acts invalid due to lack of justification, it’s substantive due process
  • If the plaintiff is saying they were treated differently than those similarly situated, it’s equal protection
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5
Q

When a deprivation of liberty occurs

A

Occurs when there is a loss of a significant freedom provided by the Constitution or a statute

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6
Q

Examples of loss of liberty

A
  • Unless there’s an emergency, must have a notice and hearing to commit an adult,
  • for a parent admitting a kid, only a screening by a neutral factfinder;
  • harm to reputation by itself is not a loss of liberty;
  • prisoners rarely have liberties.
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7
Q

A deprivation of property occurs when

A

occurs when there is an entitlement and that entitlement is not fulfilled

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8
Q

Rights and privileges distinction for the purpose of due process analysis

A

Discarded by the S. Ct. in the 1960s (often a trick q in the MBE. If this is an answer choice, it’s wrong)

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9
Q

When entitlement exists

A

exists when there is a reasonable expectation to continue receipt of a benefit

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10
Q

Examples of deprivation of property

A

Person fired w/o due process although they were promised the job for a year…

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11
Q

Government negligence and due process

A
  • Government negligence is not sufficient for a deprivation of due process
  • There must be an intentional government act or at least reckless action
  • However, in emergency situations, the government isliable under due process only if its conduct “shocks theconscience.”
  • Generally, the government’s failure to protect people from privately inflicted harm does not deny due process
  • Government has duty to provide protection only if it literally creates the danger, or when the person is in government custody
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12
Q

Procedural Due Process Test

A

Balance:

  1. the importance of the interest to the individual 2)
  2. ability of additional procedures to increase the accuracy of fact-finding, and
  3. the government’s interests (efficiency)
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13
Q

Types of benefits that require a notice and hearing before they can be terminated

A
  • welfare benefits
  • permanent termination of custory
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14
Q

Benefit that requires only a post-termination hearing for it to be terminated

A

social security disability benefits

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15
Q

Student’s right to procedural DP in school

A
  • Before a school can discipline a student there must be notice of the charges and an opportunity to explain
  • Exception: Corporal punishment in schools does not require any due process hearing
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16
Q

Procedural Due Process requirement for proper punitive damages

A
  • Punitiva damage awards require instructions to the jury and judicial review to ensure reasonableness
  • excess punitive damage awards are unconstitutional.
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17
Q

Procedural Due Process for enemy combatants

A

An American citizen detained as an enemy combatant must be accorded due process

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18
Q

Government Seizure of Assets

A
  • Prejudgment attachment or government seizure of assets require notice and a hearing
  • Exception- Exigent Circumstances
    • if there’s reason to believe the person would get rid of the property if notice came before the hearing, seizure may occur immediately after the notice
  • Exception- Illegal Activties
    • Government may seize assets used in illegal activity, even if the property has an innocent owner
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19
Q

Level of scrutiny used for economic liberties

A
  • Only a rational basis test is used for laws affecting economic rights
  • Constitution provides only minimal protection for economic liberties
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20
Q

Examples of laws affecting economic liberties

(RB review)

A

due process challenge to:

  • a minimum wage law,
  • state laws that regulate people practicing in certain trades or professions
  • consumer protection laws
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21
Q

The takings clause

A

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

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22
Q

Possessory taking

A

Government confiscation of physical occupation of property

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23
Q

Regulatory taking

A

government regulation that leaves no reasonable economically viable use of the property

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24
Q

Government regulation of property development

A

Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed

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25
Q

Subsequent property owner’s takings challenge

A

A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

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26
Q

Takings for temporary denial of owner’s use of property

A

Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable

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27
Q

Public use definition

A

the government acts out of a reasonable belief that the taking will benefit the public

28
Q

Just compensation definition

A

Economic market value of property in hands of owner.

Measured in terms of the loss to the owner, not the gain to the taker (the government)

29
Q

Example of economic market value

A

If the government takes private property worth $100k, but will receive $100 million in benefits from its use of that land, it must give the owner $100,000

30
Q

Result if If taking was not for public use

A

If this was not for public use Government must return the property

31
Q

The contracts clause

A

No state shall impair the obligations of contracts

32
Q

applicability of the contracts clause

A
  • applies only to state or local interference with existing contracts
  • federal interference with existing contracts must be challenged under due process
33
Q

Requirement for contract claim to be heard in the courts

A
  • Must be an already existing contract interfered with
  • State and Local governments free to regulate future contracts
34
Q

Scrutiny level for state or local interference with private contracts

A

state or local interference with private contracts must meet intermediate scrutiny

35
Q

Intermediate scrutiny test for state and local interference with private contracts

A
  1. Does the legislation substantially impair a party’s rights under an existing contract?
  2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
36
Q

State and local interference with government conracts

A

State or local interference with government contracts must meet strict scrutiny

(gov’t can’t get out of its own contracts)

37
Q

Ex post facto clause definition

A

a law that criminally punishes conduct that was lawful when it was done, or one that increases punishment for a crime after it was committed.

38
Q

Ex post facto clause rules

A
  • Neither federal or state government can adopt ex post facto laws that are criminal laws
  • the ex post facto clause does not apply in civil cases
  • Retroactive civil liability only need meet a rational basis test
39
Q

bill of attainer

A

a law that directs the punishment of a specific person or persons without a trial

(unconstitutional)

40
Q

Right to privacy scrutiny level

A
  • privacy is a fundamental right protected under substantive due process
  • if the government interferes with privacy rights, strict scrutiny is used
41
Q

List of privacy rights

A

Gov’t can violate these rights only if SS is met

  • the right to marry (incl. same sex);
  • the right to procreate
  • right to custody
  • right to keep the family together
  • right to control the upbringing of one’s children
  • the right to purchase and use contraceptives
  • the right to abortion
  • right to engage in private consensual homosexual activity.
42
Q

Same sex marraige scrutiny level

A

No defined scrutiny used; violates EP clause

43
Q

right to custody presumption

A

State may create a rebuttable presumption that a married woman’s husband is the father of her child

44
Q

The right to keep the family together

A

includes extended family (e.g. Ohio tenant law);

but they must be related

45
Q

Right to control upbringing of one’s children

A
  • includes right to send kid to religious school
  • Due Process violation when court affords grandparent visitation over parents’ objections
46
Q

The right to abortion

A
  • Prior to viability outside the womb, states may not prohibit abortions
  • but they may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions
47
Q

Abortion right examples

A

Not undue burden:

  • 24 hr waiting period
  • requirement that abortions be performed by licensed physician
  • prohibition of partial birth abortions

undue burden:

  • requiring physicians to have admitting privileges at a hospital within 30 miles
  • that a facility have “ambulatory surgical facilities”
48
Q

State restriction on abortion after viability

A

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

49
Q

Government role in funding abortions

A

as it pertains to abortions, the government has no duty to subsidize abortions or provide abortions in public hospitals

50
Q

spousal consent and notification laws for abortion

A

spousal consent and notification laws are unconstitutional

51
Q

Parental consent laws for abortion

A
  • A state may require parental notice/consent for an unmarried minor’s abortion
  • Must also create alternative judicial proceeding
  • minor can go to a judge for approval
  • Judge will approve if he finds it would be in the minor’s best interests or that she is mature enough to decide for herself.
52
Q

Scrutiny level for the right to privacy protection of private consensual homosexual activity

A

There is no specified scrutiny for the right to privacy protection of private consensual homosexual activity

53
Q

The right to refuse medical treatment

A
  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
54
Q

Right to physician-assisted death

A

no constitutional right to physician-assisted death

55
Q

Only second amendment case

(DC v. Heller)

A
  • The second amendment protects the right to have guns in one’s home for the sake of security.
  • No bans on handguns in DC.
  • Scrutiny level not indicated.
56
Q

DC v. Heller exception

A
  • Right to bear arms not absolute.
  • The government can regulate:
    • where you have guns (e.g. schools),
    • who has guns (e.g. felons and mentally ill)
    • what type of guns you have.
  • But no blanket bans.
57
Q

Restrictions on moving to another state

A
  • Laws that prevent people from moving into a state must meet Strict scrutiny
  • Durational residency requirements must meet strict scrutiny
  • For voting, 50 days is the maximum allowable durational residency requirement.
58
Q

Restrictions on foreign travel

A

Restrictions on foreign travel must meet rational basis

(no fundamental right to international travel)

59
Q

Restriction on right to vote

A
  • 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
60
Q

Poll taxes/property ownership voting requirements

A

Poll taxes and property ownership requirements for voting are unconstitutional

61
Q

One person one-vote requirement

A

One-person, one-vote must be met for all state and local elections.

62
Q

At large elections

A

At-large elections (all voters vote for all officers) are constitutional unless there is proof of a discriminatory purpose

63
Q

Gerrymandering

A

The use of race in drawing election district lines must meet strict scrutiny

64
Q

Election standards

A

Counting uncounted votes without standards in a presidential election violates Equal Protection

65
Q

Right to education

A

There is no fundamental right to education

Constitutional Law (10 decks)

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