(17) Constitutional Law: Due Process

Question 1

Due Process

Overview

Answer 1

There is procedural and substantive due process.

Due process is applied to the states through the 14th Amendment and to the Federal government through the 5th Amendment.

Question 2

Who does Due Process protect?

Answer 2

All people, not just citizens. It also protects corporations.

Question 3

Procedural Due Process

Overview

Answer 3

The Due Process Clause of the 5th Amendment (Federal Gov) and the 14th Amendment (States) provides that no person shall be deprived of life, liberty, or property without due process of law.

A court will determine (a) If a protected interest is adversly affected by government action AND if so, (b) what process is due.

Question 4

What are a persons protected interests?

Procedural Due Process

Answer 4

Life, Liberty, and Property

Question 5

What is an infringement or threat to “Life”

Procedural Due Process

Answer 5

Ex. capital punishment.

Question 6

+ Examples

What is an infringement or threat to “Liberty”?

Procedural Due Process

Answer 6

An infringement of liberty is construed to mean a significant restraint on one’s physical freedom, freedom of choice or actions, or exercise of fundamental rights (those guaranteed by the constitution).

Ex. Being committed to a mental institution, parole revocation, loss of parental rights, injury to reputation if the person also loses significant employment or associational rights.

Question 7

What makes something a “Property” interest?

Procedural Due Process

Answer 7

There must be a legitimate claim of entitlement.

Question 8

Is there a property right to public education?

Procedural Due Process

Answer 8

YES

Question 9

Is there a property right to government issued licenses?

Procedural Due Process

Answer 9

YES

Question 10

Is there a property right to disability benefits and welfare benefits?

Procedural Due Process

Answer 10

YES

Question 11

Is there a property interest in public employment?

Procedural Due Process

Answer 11

Only if there is an employment contract (contract employees) or a clear understanding that the employee may only be fired for cause.

This does not apply to “at will” employees.

Question 12

How does a court determine what process is due?

Procedural Due Process

Answer 12

The court will consider 3 factors to determine the amount of process that is due. (1) The private interest affected by the governmental action; (2) the risk of error under current procedures and the probable value of additional or substitute safeguards; AND (3) the burden on the government in providing the additional process.

*The greater the interest the greater the court will require extensive procedural safeguards prior to termination.

Question 13

What is the General Rule for the process due, if an individuals protected interest is threatened by government action?

Procedural Due Proces

Answer 13

A person is entitled to notice of the government’s actions AND a hearing by an unbiased neutral decision maker (the hearing generally doesn’t need to happen before the deprivation).

Question 14

What process is due for enemy combatants?

Procedural Due Proces

Answer 14

Enemy combatants are entitled to a hearing.

Question 15

What process is due before the government takes real property?

Procedural Due Proces

Answer 15

Notice and a hearing is required prior to the government taking real property (forfeiture).

Question 16

What process is due for public employees?

Procedural Due Proces

Answer 16

Public employees are entitled to notice of employment termination and a pre-termination opportunity to respond.

Question 17

What process is due for public students being suspended or expelled?

Procedural Due Proces

Answer 17

Public students being suspended or expelled are entitled to notice (this includes higher education).

Question 18

What process is due for termination of government benefits?

Procedural Due Process

Answer 18

Notice and hearing is required before termination of government benefits.

Question 19

Substantive Due Process

Answer 19

Substantive due process limits the governments power to regulate certain activities. If the government action infringes upon a fundamental right then it is subject to strict scrutiny and if the government action infringes upon an interest that is not fundamental then it is subject to the rational basis test.

Question 20

Fundamental Rights

Overview

Answer 20

1. Right to Travel
2. Right to Vote
3. Right to Privacy
   a. Right to Abortion
   b. Right to Marriage
   c. Right to Procreate
   d. Right to Use Contraceptives
   e. Right to have Sex
   f. Parental Rights
   g. Right to Keep a Family
   h. Possession of Obscene Material

Question 21

Right to Travel

Substantive Due Process / Fundamental Rights

Answer 21

Right to travel from state to state, set up residency and be treated equally with respect to state benefits.

Reasonable residency restrictions or waiting periods may be imposed on recipients of state benefits.

Question 22

Right to Travel International Rule

Substantive Due Process / Fundamental Rights

Answer 22

There is a right to international travel but it is not a fundamental right and is subject to the rational basis test.

Question 23

Right to Vote

Substantive Due Process / Fundamental Rights

Answer 23

Right applies to all citizens 18 years or older, but strict scrutiny only applies depending on the regulation.

15th Am - no discrimination w/respect to race
19th Am - No discrimination w/respect to sex
24th Am - No poll taxes
26th Am - Right to vote for citizens 18 years and older

Question 24

Voting Regulations where Rational Basis Test applies

Substantive Due Process / Fundamental Rights

Answer 24

Voter ID, residency, felons not being able to vote, banning certain write in candidates are all subject to the rational basis test.

Note: Denying felons the right to vote has been found constitutional.

Question 25

Can a state reasonably regualte the time and manner of casting votes?

Substantive Due Process / Fundamental Rights

Answer 25

YES, these restrictions have been found to be constitutional.

Question 26

Right to Use Contraceptives

Substantive Due Process / Fundamental Rights

Answer 26

Married and unmarried persons have the right to use contraceptives.

Question 27

Right to have Sex

Substantive Due Process / Fundamental Rights

Answer 27

No legitimate state interest to prohibit fully consenting adults to engage in non-commercial sexual conduct.

Question 28

Parental Rights

Substantive Due Process / Fundamental Rights

Answer 28

This includes the right to maintain custody, raise ones child, privately educate ones child

Question 29

Right to Keep a Family

Substantive Due Process / Fundamental Rights

Answer 29

Related persons have a right to live together in a single household this includes extended family members.

Unrelated persons do not have this right.

Question 30

Possession of Obscene Material

Substantive Due Process / Fundamental Rights

Answer 30

Right to possess obscene material (except child pornography) in the privacy of one’s home.

There is no right to buy or sell this same material.

Question 31

Right to Abortion

Substantive Due Process / Fundamental Rights

Answer 31

The woman has a fundamental right to have an abortion but the state must take into consideration the health of the woman and potential life of the fetus.

Therefore the undue burden test applies. There is a pre-fetus viability and post-fetus viability undue burden test rule.

Question 32

Right to Abortion:

Undue Burden Test - Pre Fetus Viability Rule

Substantive Due Process / Fundamental Rights

Answer 32

An undue burden exists when the purpose or effect of the state law places substantial obstacles in the way of a woman’s right to seek an abortion before the fetus attains viability.

Question 33

Right to Abortion:

Is imposing a 24hr waiting period an undue burden?

Substantive Due Process / Fundamental Rights

Answer 33

NO, imposing a 24hr waiting period is not an undue burden.

Question 34

Right to Abortion:

Is requiring minors to obtain parental consent OR a woman to notify her husband an undue burden?

Substantive Due Process / Fundamental Rights

Answer 34

YES, requiring a minor to obtain parental consent or a woman to notify her husband before proceeding with an abortion is an undue burden.

Question 35

Right to Abortion:

Post Fetus Viability Rule

Substantive Due Process/Fundamental Rights

Answer 35

Once the fetus reaches viability, the state may regulate and even prohibit abortion as long as there is an exception to preserve the health or life of the mother.

Question 36

Rule & When does it apply

Strict Scrutiny

Substantive Due Process

Answer 36

Strict scrutiny applies to regulations that infringe upon fundamental rights.

The** government **must show that the law is necessary to achieve a compelling government interest and is narrowly tailored.

Question 37

Strict Scrutiny:

What is a compelling government interest?

Substantive Due Process

Answer 37

Compelling = something that is necessary or crucial such as national security or preserving public health/safety.

Question 38

Rational Basis Test

Substantive Due Process

Answer 38

The plaintiff must show that the law is not rationally related to a legitimate government interest.

It is presumed the law is rationally related so the P has the burden to prove otherwise.

Economic regulations must meet the rational basis test