Kaplan Pgs 117-131 Due Process And BOR Flashcards
What is the bill of rights?
The first 10 amendments to the constitution
Originally the Bill of Rights was only applicable to the federal government, but what changed that made it also applicable to the states?
The 14th amendment was adopted that required that states could not abridge the privileges or immunities of citizens, deprive people of life/ liberty/property without due process, or deny equal protection to anyone
What are the three major things that are included in the 14th amendment?
– Due process
– equal protection
– privileges and immunities
DP, EP, P&IC
Under the privileges and immunities clause, the court struck down a California law that limited the payment of welfare benefits for first year residents to the amount that they would have gotten from their former state. Why was this?
Because the law violated the right to travel freely from state to state
The Supreme Court rejected the idea that the due process clause incorporated all of the Bill of Rights, but under the doctrine of selective incorporation, what did they find?
That these specific provisions are applicable to the states:
• 1st: freedom of speech and press, right to assemble, petition the government for a redress of grievances, free exercise of religion, establishment clause
• 2nd: right to keep and bear arms
• 4th: right to be free from unreasonable searches and seizures
• 5th: double Jeopardy, self incrimination, just compensation for a taking
• 6th: speedy and public trial for criminal prosecutions, right to confront and cross-examine witnesses, right to counsel, right to a jury trial in a criminal case
• 8th: against cruel and unusual punishment, excessive bail, excessive fines
• due process clause: the state cannot infringe on fundamental rights of parents to make childbearing decisions regarding care, custody, and control
NOT INCLUDED: 14th extends the bill of rights except in these areas
– Fifth amendment: right to a jury trial in a criminal case
– seventh amendment: right to a jury trial in a civil case
– third amendment: prevent quartering soldiers in your home
The due process and equal protection clauses protect the rights of who?
Persons, and not just citizens. Both a corporation and aliens are considered to be persons under due process and equal protection
What are the two amendments that protect against the deprivation of life, liberty, or property?
The fifth and 14th
If there has been a deprivation of someone’s life, liberty, or property by the government, what is that person entitled to under procedural due process?
Fundamentally fair procedural safeguards such as a form of notice and a meaningful hearing within a reasonable time
What are acts that invade a liberty interest that are required to have some kind of procedural due process under the 14th?
– freedom from bodily restraints: the state must give a parolee an evidentiary hearing before it can revoke parole or probation
– physical punishment: corporal punishment of kids in public schools is valid but there’s a liberty interest that exists
– commitment to a mental institution: there must be an adversary hearing provided for adults that are being committed against their will. Minor kids must be given a screening by a neutral factfinder
How does the forced administration of medicine not invade a liberty interest under the 14th?
The federal government can give antipsychotic drugs to a defendant against his will in order to render him competent to stand trial as long as:
– it is medically appropriate
– it does not cause substantial side effects
– it is necessary to significantly further an important governmental trial related interest
What are things that people have an expected property interest in under procedural due process?
– Public education: entitlement to continue to attend public school. But no evidentiary hearing is required when a student is dismissed for academic reasons
– continued welfare benefits
– state can’t revoke a driver’s license without a hearing
– public employment: there is a property interest in a person keeping their job if the employment is under a tenure system or there’s a clear understanding that the employee can only be terminated for cause. There is no property interest if the position is “at will“ or when a state refuses to renew a fixed term contract
– pre-judgment garnishment: this cannot be done for wages without notice or hearing. If a person is already getting employment benefits, he has a property interest in continuing to get those
– forfeiture of property: the government only has to send a certified letter to a prison to notify an inmate that their property that has been seized will be forfeited. All that is required is an action that is reasonably calculated to apprise the interested parties of the action and give them an opportunity to present their objections. Actual notice is not required, so constructive notice is enough
– business licensing: a licensing scheme for adult businesses must give applicants prompt judicial determination of their claim that the government unconstitutionally denied a license
Is procedural due process required when there has been no state action?
No
Under procedural due process that protects life, liberty, and property interests, what are examples of each of those things?
– Liberty: freedom from bodily restraints, physical punishment, commitment to a mental institution
– property: public education, welfare benefits, drivers license, public employment, wage garnishment, forfeiture of property, business licensing
– life: capital punishment, abortion, right to die
Once it has been determined that a sufficient deprivation of life, liberty, or property has occurred, what is the next step in procedural due process analysis?
Consider these factors:
– the private interest that will be affected by the action
– the risk of erroneous deprivation of this interest and the probable value of extra or substitute procedures
– the government’s interest in streamlined procedures including fiscal and administrative burdens
What does due process require with regard to a judge that hears a case?
That he will recuse himself if he has a pecuniary interest in the case such that an average judge would possibly be tempted to give an unbalanced or untrue judgement
I.e.: if one party had a significant and disproportionate influence in getting the judge elected, the judge must recuse himself
What does due process say about irrebuttable presumptions?
They violate due process. I.e.: a statutory presumption that pregnant teachers are incapable of performing their duties is unconstitutional, as is a presumption that unwed fathers are unfit parents
When you see the 13th amendment, what is the best answer?
Something that involves a private individual that is not a state actor discriminating
At its core, what is the commerce clause?
Congressional power to enact legislation that affects interstate commerce
When are you most likely to see the contract clause come up?
When the state revokes a contract that it was a party to
At its core, what is the dormant commerce clause?
Prohibits a state from passing legislation that improperly burdens or discriminates against interstate commerce
What is the difference between the commerce clause and the dormant commerce clause?
- Commerce clause: gives CONGRESS the power to enact legislation that affects interstate commerce
– dormant commerce clause: STOPS A STATE from passing legislation that burdens are discriminates against interstate commerce
What is the best case for a due process clause argument?
When the state does not give a hearing or invades privacy rights
What is the best answer choice if equal protection is an issue?
One that has state action interfering with the fundamental interest, like the right to vote or travel, or a classification by race/alienage/sex
What is the only time that police power will be the answer?
When there is state action versus federal action
What does the privileges and immunities clause do?
It bars states from discriminating against non-resident citizens on fundamental matters unless the regulation specifically targets a problem that comes from a non-resident’s behaviour
If you see the privileges and immunities clause as an answer choice, what should you think?
It is almost never correct
The supremacy clause is not a good choice on an exam unless what?
There is a congressional statute or provision that conflicts with a state activity
When should the Supreme Court avoid making a constitutional decision?
– when there is no issue in controversy/no adversarial conflict
– when the plaintiff cannot show injury by the statute in question
– when the issue isn’t ripe
– when the decision requires a ruling that is broader than the facts of the case
– when the complaint can be resolved in a non-constitutional manner
– when the court can determine a statutory construction that avoids constitutional analysis
– when the complainant benefitted from the statute he now argues is unconstitutional
Under substantive due process, what are the major types of regulation?
– Economic regulation
– fundamental rights
What kind of protection does economic regulation get under substantive due process?
Challenges to economic regulations get deferential rational basis scrutiny. The challenger has the burden to prove that the regulation lacks a rational connection to a legitimate government interest.
Since the 1930s, the Supreme Court has not struck down any economic regulation on substantive due process grounds.
Basically an economic regulation is upheld if it is rationally related to a legitimate government interest