5) Due Process / Indiv Rights

Question 1

const provisions can invoke against feds

Answer 1

Bill of Rights

inc 5A for discrim

Question 2

const provisions can invoke against states

Answer 2

14A DPC (not BOR directly)

Question 3

14A DPC incorporates all of BOR except:

Answer 3

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

Question 4

discrim by state gvts: use (usually)

Answer 4

14A EPC

Question 5

discrim by state gvts: use (exceptions)

Answer 5

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

Question 6

priv and immunities clause usu tested re

Answer 6

right to travel

Question 7

DP: 2 kinds

Answer 7

1) procedural

2) substantive

Question 8

procedural DP protects

Answer 8

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

Question 9

procedural DP: “people” def

Answer 9

all people (not just citizens
AND
corporations

Question 10

procedural DP: liberty interests

Answer 10

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

Question 11

procedural DP: property interests

Answer 11

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

Question 12

procedural DP: life interests

Answer 12

executions

Question 13

procedural DP: WHAT process is due? always must

Answer 13

1) adequate notice

2) adequate hearing

Question 14

procedural DP: test re adequacy of notice/hearing

Answer 14

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)

Question 15

substantive DP: source

Answer 15

unenumerated – not spelled out in const

Question 16

substantive DP: economic?

Answer 16

no – economic only must pass rational basis

Question 17

rational basis test

Answer 17

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!

Question 18

substantive DP: tests

Answer 18

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

no intermediate scrutiny!

Question 19

strict scrutiny: test

Answer 19

1) compelling gvt interest (and must be actual)

2) necessity: no other way to meet the compelling interest. Least restrictive alternative, narrowly tailored

Question 20

privacy interests protected by substantive DP: mnemonic

Answer 20

SCAMPERD

Question 21

privacy interests protected by substantive DP: list

Answer 21

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

Question 22

privacy right: Marriage: dx

Answer 22

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

Question 23

abortion: tests

Answer 23

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

Question 24

abortion: YES undue burden

Answer 24

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

Question 25

abortion: NOT an undue burden

Answer 25

``` 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) ```

Question 26

relatives: def

Answer 26

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

Question 27

sexual orientation: rule

Answer 27

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

Question 28

education: rule

Answer 28

right to private education if can afford it

Question 29

possession of obscene material: rule (+exception)

Answer 29

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

Question 30

right to die: def

Answer 30

ok refuse med tx (no right to assisted suicide)

Question 31

right to travel: source: domestic

Answer 31

1) domestic: 14 P+I -- ok travel freely from state to state, move to another state

Question 32

right to travel: source: intl

Answer 32

from DPC. Not absolute.

Question 33

right to vote: sources

Answer 33

1) general -- 1A right to association + 14A | 2) specific amendments re voting

Question 34

right to vote: 15A

Answer 34

no race discrim in voting

Question 35

right to vote: 19A

Answer 35

no sex discrim in voting

Question 36

right to vote: 24A

Answer 36

no fed poll tax (state neither, from gen right)

Question 37

right to vote: 26A

Answer 37

18+ no age discrim

Question 38

right to vote: TEST

Answer 38

1) if total ban: strict scrutiny | if procedural reqs/burden, test: undue burden

Question 39

right to vote: ok restrictions

Answer 39

(reasonable) 1) residency req 2) registration 3) time+manner 4) voter ID 5) felon disenfranchisement

Question 40

right to vote: NOT ok restrictions

Answer 40

1) poll tax 2) school board elections (limit to parents/property) 2) vague/nonuniform counting standards

Question 41

electoral college: who chooses the electors

Answer 41

technically state legislatures, not the popular vote

Question 42

electoral college: who votes for the electors where state has made it votable

Answer 42

same ppl who can vote for state legislature

Question 43

takings clause: const

Answer 43

5A: fed gvt can't take private property for public use w/o just compensation also applies to states via 14A

Question 44

takings: "public use"

Answer 44

"public purpose" very broad (inc ok take + give to someone else)

Question 45

takings: kinds

Answer 45

1) direct gvt appropriation (takes your property) | 2) regulatory taking

Question 46

takings: regulatory taking: def

Answer 46

regulation so onerous that tantamount to diret appropriation

Question 47

takings: regulatory taking: tests

Answer 47

1) permanent physical invasion, no matter how minor = yes 2) deprivation of ALL economically beneficial use = yes 3) if neither balancing test

Question 48

takings: regulatory taking: balancing test

Answer 48

economic + physical IMPACT DURATION of gvt activity CHARACTER o gvt activity