5) Due Process / Indiv Rights Flashcards Preview

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Flashcards in 5) Due Process / Indiv Rights Deck (48)
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1

const provisions can invoke against feds

Bill of Rights
inc 5A for discrim

2

const provisions can invoke against states

14A DPC (not BOR directly)

3

14A DPC incorporates all of BOR except:

1) 5A indictment by grand jury
2) 7A jury trial in civil cases
3) 8A excessive fines

4

discrim by state gvts: use (usually)

14A EPC

5

discrim by state gvts: use (exceptions)

1) visitors: Art. 4 priv + immunities
2) migrants to state: 14A priv + immunities
3) out of state businesses: DPC

6

priv and immunities clause usu tested re

right to travel

7

DP: 2 kinds

1) procedural
2) substantive

8

procedural DP protects

people
against deprivation of life, liberty, or property
w/o due process of law

9

procedural DP: "people" def

all people (not just citizens
AND
corporations

10

procedural DP: liberty interests

anything you want to do w your body, esp
freedom from bodily restraint
freedom from physical punishment

11

procedural DP: property interests

1) public education
2) public employment (only if tenured or just-cause provision, not at-will)
3) welfare benefits
4) driver's license

12

procedural DP: life interests

executions

13

procedural DP: WHAT process is due? always must

1) adequate notice
2) adequate hearing

14

procedural DP: test re adequacy of notice/hearing

balance factors:
1) importance of the interest
2) risk of erroneous deprivation of the right (if protection not given)
3) burden to the gvt (of giving the protection)

15

substantive DP: source

unenumerated -- not spelled out in const

16

substantive DP: economic?

no -- economic only must pass rational basis

17

rational basis test

to in, indiv must show:
no rational relation
to any legit gvt interest

over-inclusive + under-inclusive ok

"legit interest" dnn to be the actual one!

18

substantive DP: tests

rational basis (economic interest)
strict scrutiny (privacy interest)

no intermediate scrutiny!

19

strict scrutiny: test

1) compelling gvt interest (and must be actual)
2) necessity: no other way to meet the compelling interest. Least restrictive alternative, narrowly tailored

20

privacy interests protected by substantive DP: mnemonic

SCAMPERD

21

privacy interests protected by substantive DP: list

1) Sexual orientation
2) Contraception
3) Abortion
4) Marriage
5) Possess obscenity
6) Education
7) Relatives
8) Death

22

privacy right: Marriage: dx

states can regulate marriage. But SS triggered if saying your group can't marry AT ALL (not just if limiting who you can marry)

23

abortion: tests

1) elective: woman has a protected privacy interest in choosing to have an abortion before fetus is viable. Any regulation on pre-viability abortion is unconst if it imposes undue burden on woman's right to choose abortion.
2) therapeutic: restrictions on post-viability abortion must have a health of the mother exception

24

abortion: YES undue burden

total ban
spousal consent or notice
recording pt names
parental consent w/o judicial bypass

25

abortion: NOT an undue burden

parental consent w/ judicial bypass
24 hr waiting period
req drs provide specific (truthful, nonmisleading) info
no public funds
ban certain method (unless it's safest)

26

relatives: def

1) gvt CAN'T prohibit members of extended family from living in single household
2) but CAN ban unrelated ppl living in single family residence

27

sexual orientation: rule

1) sexual activity can't be criminalized
2) RBR (but held no rational basis)
(marriage: DPC+EPC)

28

education: rule

right to private education if can afford it

29

possession of obscene material: rule (+exception)

ok at home
no right to buy / sell
exception: child porn

30

right to die: def

ok refuse med tx (no right to assisted suicide)