substantive due process

Question 1

fundamental rights include

Answer 1

all first amendment rights

right to interstate travel

privacy-related rights

voting

right to bear arms for self defense in the home and in public

Question 2

whether an unenumerated right is fundamental depends on:

Answer 2

whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.

Question 3

when is it a DP case vs. EP

Answer 3

if the government is denying everyone a fundamental right – DP issue

if government is denying a group a fundamental right – EP and DP problem

Question 4

privacy related rights that are fundamental

Answer 4

(1) marriage

(2) procreation

(3) use of contraceptives

(4) parental rights

(5) keeping extended family together

(7) NOT ABORTION

(8) freedom to read obscene material in one’s home

Question 5

what does it mean when a law burdens a fundamental right?

Answer 5

it triggers strict scrutiny

(laws that do not burden fundamental rights are subject to rational basis review)

Question 6

standard of review for restrictions on marriage in prisoner’s rights cases

Answer 6

A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.

categorical ban on prison marriage is illegal

Question 7

scope of fundamental right to marriage

Answer 7

laws that burden right to marriage:
- ban on interracial marriage
- ban on same sex marriage

laws that do not substantially burden right to marriage:
- minimum age requirements

Question 8

scope of fundamental right to procreation

Answer 8

Individuals have a fundamental right to reproduce that cannot be limited by the state.

no forced sterilizations of repeat offenders of crimes

Question 9

scope of fundamental right to use contraceptives

Answer 9

A state cannot prohibit the distribution of nonmedical contraceptives to adults or minors

Question 10

scope of fundamental parental rights

Answer 10

They include the companion- ship, care, custody, and upbringing of children

Ex:
state cannot require public school education

state cannot require education in English

parents can forbid visitation by grandparents

Question 11

scope of fundamental right to keep extended family together

Answer 11

There’s a fundamental right for family members—even extended ones—to live together. However, this right does not extend to unrelated people.

Question 12

how do court look at state abortion regulations

Answer 12

laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review.

the Court has identified several legitimate state interests that can support a restriction, namely,
— respecting and preserving prenatal life at all stages of development
—- protecting maternal health and safety
—– eliminating “particularly gruesome or barbaric medical procedures”
—– preserving the integrity of the medical profession; mitigating fetal pain
—- preventing discrimination based on race, gender, or disability

Question 13

fundamental rights relating to right to travel

Answer 13

interstate travel

NOT international travel

Question 14

scope of fundamental interstate right to travel

Answer 14

An individual has a fundamental right (1) to travel from state to state, and (2) to be treated equally after moving into a new state

tolls for entering or leaving a state are invalid

penalties for parents leaving their kid in one state are valid

RESIDENCY REQUIREMENTS ARE SOMETIMES INVALID

Question 15

to what extent do residency requirements violate substantive due process right to interstate travel?

Answer 15

one year residency to receive welfare benefits – invalid

one year residence to receive state-subsidized medical care — invalid

one year residency to vote in state – invalid

thirty day residency to vote in state — valid

one year residency to get divorced - valid

Question 16

restrictions on right to vote that are valid and invalid

Answer 16

INVALID
- poll taxes
- conditioning voting or holding office on ownership of property (unless special election)

VALID
- reasonable time periods for residency
- ID requirements
- early registration for primary elections

Question 17

one person one vote principle — voter dilution as grounds for due process challenge

Answer 17

The “one person, one vote” principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts.

Question 18

requirement of one person one vote for state and local elections

Answer 18

Fo state and local elections, the populations of voting districts must be substantially equal. a 10% variance is presumptively valid. Otherwise, A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest.

Ex: of legit state interest includes maintaining the integrity of local political subdivision lines, as long as final apportionment is substantially based on population

Question 19

requirement of one person one vote for federal elections

Answer 19

States must use almost exact mathematical equality when creating congressional districts within the state—even a 0.7% variance was invalidated.

This isn’t true, however, when Congress apportions representatives among the states; Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathemat- ical formula, as are state plans.

Question 20

how can states measure voting districts?

Answer 20

total population, not just eligible population

Question 21

racial gerrymanering vs partisan gerrymandering

Answer 21

if race is predominant factor in drawing a voting district, the map must satisfy strict scrutiny

partisan gerrymandering is nonjusticiable

Question 22

test for whether firearm regulation burdens second amendment rights

Answer 22

whether regulation is consistent with historical tradition of firearm regulation

sensitive places restrictions are constitutional

no general bans on handguns in the home or in public for self-defense

Question 23

unspecified rights – that court has not yet said are fundamental … has stopped short of calling them fundamental but seems to treat them as special

Answer 23

(1) same sex intimate conduct in private setting

(2) right of competent adults to refuse medical treatment
– state can compel vaccination
— no fundamental right to assisted suicide

Question 24

what test applies to laws prohibiting nonresidents from voting

Answer 24

apparently it is a rational basis standard

Question 25

when does “one person one vote” not apply?

Answer 25

when there is an at-large system of election such districts do not select one representative a-piece