Due Process

Question 1

When you see what is the best source for an argument that a particular law is unconstitutional, look for

Answer 1

ask whether the constitutional provision protects from the states or from the federal government.

Question 2

If the Federal government is discriminating against the states, what should be invoked?

Answer 2

Against the states, the 14th Amendment Due Process Clause should be invoked

Question 3

If the federal government is discriminating, what should be invoked?

Answer 3

Due process clause of fifth amendment

Question 4

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

Answer 4

1. 5th amendment right to indictment by a grand jury
2. 7th amendment: right to a jury trial in a civil case
3. 8th amendment: excessive fines clause

Question 5

For discrimination by state governments, usually apply the

Answer 5

14th amendment

Question 6

If States are discriminating against visitors, what should be invoked

Answer 6

article 4 privileges and immunities

Question 7

If states are discriminating against migrants, people who want to move ther

Answer 7

Privileges or immunities clause of 14th amendment

Question 8

Procedural Due Process protects

Answer 8

1. persons against
2. deprivations of live liberty or property;
3. without due process of law

Question 9

Who is a person who can receive procedural due process

Answer 9

1. all people (> citizen)

2. corporations

Question 10

What is a liberty interest?

Answer 10

Anything you want to do you have a liberty interest in doing

• Prison
• Physical punishment

Question 11

What is a property interest?

Answer 11

Public education
Public employment if (termination for cause or tenured, ≠ at will)
Welfare benefits
Driver’s licenses

Question 12

What is a life interest?

Answer 12

Your life, comes in if gov’t tries to kill you

Question 13

What process is due? What kind of procedure does the government have to follow in order to be able to deprive a person or corporation of life, liberty or property?
(2)

Answer 13

1. Adequate Notice

2. Adequate Opportunity to be heard

Question 14

To determine what is adequate notice and what is an adequate hearing, the court will balance three factors
(3)

Answer 14

1. importance of the protected interest;
2. risk of error with the procedures used and the probable value of other procedures
3. how burdensome is it on the gov’t to provide with procedural protection

Question 15

Economic regulation by the states or the federal government only has to meet what test?

Answer 15

Rational basis review

Question 16

if the government wants to regulate personal rights, then it has to meet what test?

Answer 16

Strict Scrutiny

Question 17

Strict Scrutiny requires the government to show?

Answer 17

The government must show

Compelling interest (very important)
\+
Actual motive behind government action
\+
No other way to achieve the interest(necessary)

Question 18

Rational Basis Review requires?

Answer 18

The burden is on πto show that the law is not rationally related to any legitimate purpose

Question 19

Fundamental privacy rights

8

Answer 19

1. Sexual orientation
2. contraception
3. Abortion
4. Marriage
5. Family relations
6. Private Education
7. Possession of Obscene Material
8. Refusal of medical procedures

Question 20

Right to contraception includes

Answer 20

fundamental right to buy and use

Question 21

What is the test for an elective abortion?

Answer 21

Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion.

Question 22

Examples of undue burden for abortions

Answer 22

1. total ban
2. requiring spousal consent
3. requiring spouse to notify husband
4. recording patient names
5. parental consent without judicial bypass

Question 23

Examples that do not create undue burden for abortions

Answer 23

1. parental consent with judicial bypass
2. 24 hour waiting period
3. Truthful non-misleading information
4. Refusing public funds
5. Ban on certain methods if they are not the safest

Question 24

What is the test for an protective abortion?

Answer 24

Any abortion restriction must have a life-health exception

Question 25

What is the right to family relations?

Answer 25

The government cannot prohibit members of an extended family from living in a single household.

Question 26

What is the sexual orientation right?

Answer 26

government cannot criminalize same sex sexual acitivity

Question 27

What is the test use for the sexual orientation right?

Answer 27

rational basis However, there's no legitimate interest in this for the state

Question 28

Is there a federal right to same sex marriage?

Answer 28

No

Question 29

Does a state have to recognize a same sex marriage from other states?

Answer 29

No

Question 30

What is the right to education?

Answer 30

There is a right to go to private schools

Question 31

What is the right to obsess obscene materials?

Answer 31

Can poses within your home | ≠child porn

Question 32

What is the right to refuse medical procedures?

Answer 32

Can refuse any medical procedure even if it results in death

Question 33

Right to travel is protected by

Answer 33

``` The 14th Amendment Privileges and Immunities Clause allows every citizen to travel freely from state to state + to set up residency in a new state. + International travel can be restricted ```

Question 34

The right to vote is covered by | 4

Answer 34

15th amendment: no race discrimination 19th amendment: no sex discrimination 24th amendment: no poll taxes in a federal election (nor states) 26th amendment: no age discrimination above 18

Question 35

Level of right to vote test

Answer 35

If total ban: strict scrutiny If makes it harder(procedural): gov't must be important + no undue burdern

Question 36

Voting regulations that are okay?

Answer 36

1. reasonable residency requirements 2. reasonable registration requirements 3. reasonable time and manner regulations 4. felons can be denied the right to vote

Question 37

Voting restrictions that are unconstitutional?

Answer 37

1. no poll tax 2. limiting school board elections to only parents and property owners 3. Counting votes using standards that are vague or uniform 4. Making you register as a political party for a general election

Question 38

How does presidential elections work?

Answer 38

Electors pledge their votes

Question 39

Where is the takings clause?

Answer 39

5th amendment

Question 40

Two kinds of takings

Answer 40

1. direct government appropriation; | 2. regulatory taking

Question 41

Direct government appropriation occurs

Answer 41

when the government actually takes your property

Question 42

What is a regulatory taking?

Answer 42

The regulation is so onerous that it amounts to appropriation

Question 43

Types of regulatory takings | 3

Answer 43

1. Permanent physical invasion (no matter how minor) 2. Deprivation of all economically beneficial use 3. Balancing (economic impact, character of government action)

Question 44

What is the limit on the government takings power

Answer 44

Must be taken for a public purpose but this is very broad (includes given to private developer)

Question 45

What recourse is available in light of a taking?

Answer 45

fair market value Generally not injunctions

Question 46

When is procedural due process required?

Answer 46

Where there is a deprivation of one's life, liberty, or property interest.

Question 47

Does injury to reputation trigger procedural due process?

Answer 47

No