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Conlaw II > Substantive Due Process > Flashcards

Substantive Due Process Flashcards

1
Q

definition

SUBSTANTIVE DP

A

asks whether the gov adequate reason/significant substantive justification for taking away a person’s life, liberty, or property

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2
Q

considerations

SUBSTANTIVE DP

A
  1. economic liberties
  2. right to privacy
  3. right to keep and bear arms
  4. right to travel
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3
Q

constitutional protection

ECONOMIC LIBERTIES

A

constitution provides only MINIMAL protection for economic interests

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4
Q

2 eras of treatment

ECONOMIC LIBERTIES

A
  1. loechner era = barf

2. since 1937, all loechner-era cases overruled

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5
Q

scrutiny

ECONOMIC LIBERTIES

A
  • SC says gov interference with economic liberties requires only RATIONAL BASIS
  • AKA gov will probs win
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6
Q

protected / scrutiny

RIGHT TO PRIVACY

A
  • privacy is protected as a FUNDAMENTAL right under the liberty of DP clause
  • generally, strict scrutiny is used
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7
Q

9 fundamental rights

RIGHT TO PRIVACY

A
  1. right to marry
  2. right to procreate
  3. right to custody of one’s children
  4. right to keep family together
  5. right to control upbringing of their children
  6. right to purchase and use contraceptives
  7. right to abortion
  8. right to engage in private consensual adult homosexual activity
  9. right to refuse medical treatment
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8
Q

right to procreate

RIGHT TO PRIVACY

A

gov must meet strict scrutiny to sterilize

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9
Q

right to custody of one’s children

RIGHT TO PRIVACY

A

state may create irrebuttable presumption that married woman’s husband is father of her child

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10
Q

right to keep family together

RIGHT TO PRIVACY

A
  • include extended family

- individuals must be related to be family

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11
Q

right to control upbringing of their children

RIGHT TO PRIVACY

A
  • law interfering with parental decision must meet strict scrutiny
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12
Q

scrutiny

RIGHT TO ABORTION

A
  • strict scrutiny NOT used for abortion

- abortion is the ONLY privacy right strict scrutiny is not used for

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13
Q

pre-viability

RIGHT TO ABORTION

A

prior to viability, gov

  • cannot PROHIBIT abortions
  • may regulate abortions AS LONG AS undue burden is not placed on the right

(UNDUE BURDEN test replaced strict scrutiny)

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14
Q

post-viability

RIGHT TO ABORTION

A

after viability, gov MAY prohibit abortion EXCEPT where necessary to protect woman’s life or health

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15
Q

gov abortion subsidies/facilities

RIGHT TO ABORTION

A

gov is NEVER constitutionally REQUIRED to subsidize or provide facilities for abortions

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16
Q

spousal consent/notification laws

RIGHT TO ABORTION

A

spousal consent/notification laws = unconstitutional

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17
Q

parental notice/consent requirements

RIGHT TO ABORTION

A

parental notice/consent requirements for minor’s abortion = may be required by state BUT ONLY IF
it contains alternative process where minor can obtain abortion by court approval where judge decides
a. abortion is in minor’s best interest OR
b. minor is mature enough to decide for herself

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18
Q

pre-viability 3 examples

RIGHT TO ABORTION

A
  1. 24-hour waiting period = not undue burden
  2. licensed physician requirement to perform = not undue burden
  3. prohibition of partial-birth abortion = not undue burden
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19
Q

viability definition

RIGHT TO ABORTION

A

= time at which fetus can survive outside the womb

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20
Q

scrutiny

RIGHT TO ENGAGE IN PRIVATE CONSENSUAL ADULT HOMOSEXUAL ACTIVITY

A

court did not indicate level of scrutiny

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21
Q

3-part holding

RIGHT TO REFUSE MEDICAL TREATMENT

A

only 1 case ever, which held

  1. competent adults have right to refuse medical care (even if life-saving)
  2. state may require clear and convincing evidence that person wanted treatment ended before termination
  3. state may prevent family members from terminating treatment of another (right to refuse treatment = individual)
22
Q

physician-assisted death

RIGHT TO REFUSE MEDICAL TREATMENT

A

right to privacy DOESN’T include a right to physician-assisted death

23
Q

evolution

RIGHT TO KEEP & BEAR ARMS

A
  • until 2008, SC said 2nd amendment protects right of people to have guns for militia service
  • in 2008, 2nd amendment protects right of individuals to have guns in home for sake of security
  • in 2010, SC says this right applies to state and local governments by incorporation into DP clause of 14th amendment
24
Q

permissible regulation

RIGHT TO KEEP & BEAR ARMS

A

right isn’t absolute = gov can regulate

  • who can have guns
  • where people can have guns
  • what types of guns
25
Q

scrutiny

RIGHT TO KEEP & BEAR ARMS

A

didn’t indicate level of scrutiny (seems like at least intermediate)

26
Q

interstate travel scrutiny

RIGHT TO TRAVEL

A
  • right to interstate travel = fundamental right

- laws that prevent people from moving to a state must be strict scrutiny

27
Q

durational residence requirements

RIGHT TO TRAVEL

A

where a person must live in a jurisdiction for a specified amount of time in order to gain a benefit
= must meet strict scrutiny

28
Q

foreign travel scrutiny

RIGHT TO TRAVEL

A
  • right to foreign travel = not a fundamental right

- only rational basis test used

29
Q

maximum residence requirement for voting

RIGHT TO TRAVEL

A

50 days is maximum allowable durational residence requirement

30
Q

type of right

RIGHT TO EDUCATION

A

NOT a fundamental right under the constitution

31
Q

difference between substantive and procedural

DUE PROCESS

A

Procedural DP = requires the gov to use fair process and procedures before depriving a person of life, liberty, or property

Substantive DP = guarantees that laws will be reasonable and not arbitrary

32
Q

default analysis

SUBSTANTIVE DP

A

= if the gov regulation does not interfere with a fundamental right, the regulation will be

  • subject to rational basis test
  • and probably upheld

EXCEPTION = grossly punitive damages awards violate DP

33
Q

fundamental right analysis

SUBSTANTIVE DP

A

= if a law directly and substantially impairs a fundamental right, the court will apply strict scrutiny and the law will probably be invalidated

34
Q

grossly punitive damages

SUBSTANTIVE DP

A

damages that exceed compensatory damages by tenfold or more = probably grossly excessive

35
Q

civil rights amendments

SUBSTANTIVE DP

A

= 13th, 14th, 15th amendments

36
Q

scope/effect

CIVIL RIGHTS AMENDMENTS

A

= primarily guarantee individual rights against states

37
Q

thirteenth amendment

CIVIL RIGHTS AMENDMENTS

A

Section 2 may be used to regulate private discriminatory behavior if such behavior constitutes badge or incident of slavery

38
Q

fourteenth amendment

CIVIL RIGHTS AMENDMENTS

A

Section 5

  1. authorizes congress to prohibit discrimination by state and local governments
  2. may not be used to regulate private discrimination
39
Q

fifteenth amendment

CIVIL RIGHTS AMENDMENTS

A
  1. limitation on both the states and the federal government
    = prohibits state and fed gov from denying any citizen the right to vote on account of race or color
  2. contains an enabling clause that allows Congress to adopt legislation protecting the right to vote from discrimination
40
Q

slaughterhouse cases

CIVIL RIGHTS AMENDMENTS

A

= held that the fundamental rights protected against federal abuse (first 10 Amendments) are not privileges or immunities of national citizenship within the meaning of the Fourteenth Amendment nor are such other basic rights as the right to live, work, and eat

= the guarantees of the Bill of Rights are protected from state action only by the DP and EP clauses of 14th amendment
= privileges or immunities clause of the Fourteenth Amendment did not incorporate the Bill of Rights, either totally or selectively, against the states

41
Q

guarantee

RIGHT TO KEEP & BEAR ARMS

A

= guarantees the right to carry and use typical weapons (e.g., handguns) for the purpose of self-defense

42
Q

limitation

RIGHT TO KEEP & BEAR ARMS

A

= DOES NOT guaranty the right to carry “dangerous or unusual weapons”

43
Q

total incorporation

SUBSTANTIVE DP

A
  • Entire Bill of Rights has been incorporated against the states
  • Has been supported by certain SC justices in dissent
  • BUT has never been adopted by the majority
44
Q

selective incorporation

SUBSTANTIVE DP

A

most, but not all, of the rights contained in the Bill of Rights have been held to apply to the states as well, through the due process clause of the Fourteenth Amendment

45
Q

jot-for-jot incorporation

SUBSTANTIVE DP

A

= when a right is incorporated against the states, it has the exact same effect as it does federally

NOTE: this is inapplicable when right has not been incorporated in the first place

46
Q

jot-for-jot - example

SUBSTANTIVE DP

A

= INAPPLICABLE to 6th amendment

b/c not incorporated against states so fed gov required to require unanimous jury, state gov not required

47
Q

incorporation doctrine

SUBSTANTIVE DP

A

= by its terms, Bill of Rights applies only to federal government

  • SC however, has held
    1. that all of the Bill of Rights have been incorporated into the 14th Amendment and
    2. thus made applicable to state and local gov
    3. EXCEPT FOR
    a. 5th amendment’s right to a grand jury in criminal case
    b. 7th amendment right to a jury in a civil case
48
Q

significance of nebbia

SUBSTANTIVE DP

A

beginning of post-lochner era that focuses on fundamental rights instead of substantive protection of economic interests

49
Q

state police power

SUBSTANTIVE DP

A

states have general police power to protect the welfare of the people which is only limited by bill of rights

50
Q

ordered liberty

SUBSTANTIVE DP

A

concept that allowing gov to infringe on rights so fundamental would create chaos, make liberty a sham

51
Q

footnote 4 of carolene products

SUBSTANTIVE DP

A
  • Sets up judicial restraint and general deference to legislature
  • Mentions “more searching inquiry” for fundamental rights and equal protection
52
Q

prefatory clause

RIGHT TO KEEP & BEAR ARMS

A

“for a well-regulated militia”

= was initially construed to be the limitation of the right

Conlaw II (7 decks)

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