Due Process & Fundamental Rights Flashcards

(47 cards)

1
Q

Does the Constitution protect against wrongful conduct by the government or private citizens?

A

The government, not private individuals.

⚠️ Exceptions:

  1. Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
  2. Individual and gov. are excessively intertwined
    • Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
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2
Q

What are 3 main powers Congress can use to limit discrimination by private citizens?

A
  1. 13th Amendment;
  2. Commerce Clause; and
  3. Federal purse power
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3
Q

Who does the Bill of Rights apply to?

A
  1. Federal government; and
  2. States via the Fourteenth Amendment Due Process Clause (most provisions, see incorporation card)
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4
Q

Which provisions of the Bill of Rights are not incorporated to the states?

A
  1. 3rd Amendment
    • Right against quartering (only incorporated in 2nd Circuit)
  2. 5th Amendment
    • Right to indictment by a grand jury in criminal cases; and
  3. 7th Amendment
    • Right to a jury verdict in civil cases
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5
Q

Define

reverse incorporation doctrine

A

Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5th Amendment

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6
Q

Test for strict scrutiny

A

Law will be upheld if:

  1. It is necessary to achieve a compelling/crucial government interest; and
  2. Is the least restrictive means possible to achieve that interest (narrowly tailored)
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7
Q

When is strict scrutiny triggered?

A

if law involves a suspect classification or fundamental right

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8
Q

Test for intermediate scrutiny

A

Law will be upheld if it is substantially related to an important government interest

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9
Q

What are the requirements for strict and intermediate scrutiny?

A

Strict scrutiny: Government must demonstrate the classification is necessary to achieve a compelling governmental interest and is narrowly tailored to achieve that interest.

Intermediate scrutiny: Government must demonstrate the classification is substantially related to an important governmental interest.

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10
Q

Test for rational basis review

A

Law will be upheld if rationally related to a legitimate government purpose

⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary

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11
Q

Who bears the burden of proof in rational basis review?

A

Challenger; must prove that law is unconstitutional

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12
Q

What is Due Process?

A
  • Requirement that the government cannot deprive its citizens of life, liberty, or property without due process of law.
  • Two types: procedural and substantive
  • Rooted in both the 5th and 14th Amendments
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13
Q

What does procedural due process require (generally)?

A

If government is depriving an individual of life, liberty, or property, individual must be given:

  1. Notice;
  2. Opportunity to be heard (i.e. hearing); and
  3. Decision by a neutral arbitrator
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14
Q

What constitutes deprivation of liberty?

A

Significant restriction on freedom of movement, action, fundamental rights, or any other rights guaranteed/provided by the Constitution

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15
Q

What constitutes deprivation of property interests?

A

Deprivation of a “legitimate claim of entitlement.

Examples:

  • Public education;
  • Public employment (only if employee is tenured or can be fired for cause; “at-will” employment does not trigger due process);
  • Welfare benefits; or
  • Government-issued licenses
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16
Q

If a person has not yet received benefits, do they have a property interest in them?

A

No, can be terminated without due process

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17
Q

The court balances what 3 factors to determine the amount of process due?

A
  1. Importance of the protected interest;
  2. Risk of deprivation with current procedures and value of additional procedures; and
  3. Government burden (fiscal and administrative) to provide process
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18
Q

Is a hearing prior to terminating welfare benefits required?

A

Yes

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19
Q

Is a hearing prior to terminating disability benefits required?

A

No, only a post-termination evidentiary hearing

20
Q

Is a hearing prior to terminating public employment required?

A

No, only a post-termination evidentiary hearing.

⚠️ Notice and an opportunity to respond to the decision-maker is required before termination.

21
Q

Does the government need to provide notice before seizing personal property?

A

No, only real property

22
Q

What is substantive due process?

A

Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.

23
Q

Economic and most social welfare regulation is subject to what level of scrutiny?

A

Rational basis review (rationally related to a legitimate gov. purpose)

⭐️ Highly likely to be upheld. Court has not struck down economic regulation for violation of substantive due process since 1937.

24
Q

What is the Contracts Clause?

A

Prohibits states from substantially impairing existing contract duties. Article I, Section 10.

⚠️ Congress can still restrict contracts that will be made in the future

25
A restriction on **private contracts** is subject to what level of scrutiny?
Intermediate scrutiny. Will only be upheld if it is: 1. **Necessary** to achieve an important, legitimate public interest; 2. **Substantially related** to that interest; and 3. **Narrowly tailored** in promoting public interest
26
A restriction on **government contracts** is subject to what level of scrutiny?
Stricter scrutiny. Only upheld if: 1. **Necessary** and **reasonable** to achieve an **important, legitimate** public interest; 2. **Least restrictive means necessary** to promote that interest; and 3. Necessary because of **unforeseen circumstances**
27
# Define Takings Clause
Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain." ## Footnote Two types: **possessory** and **regulatory**.
28
Is the Takings Clause applicable to **states**?
Yes, via the Fourteenth Amendment
29
What types of **property interests** are protected by the Takings Clause?
**Real property interests:** * Fee simple * Easement * Leasehold estate * Mortgage/lien **Personal property:** * Patent rights * Trade secrets * Contracts
30
What is a **regulatory taking** and what factors does the court weigh when determining if a regulatory taking occurred?
A government regulation that is **so burdensome** it essentially amounts to taking. To decide if taking occurred, court weighs: 1. **Economic burden** on the owner; 2. **Extent of interference** with owner's reasonable use and enjoyment; and 3. Whether or not the taking **benefits society** (i.e. government’s interest in the taking)
31
What are two brightline types of **regulations** that constitute a taking? ("per se" takings")
If regulation results in: 1. Permanent physical occupation (no matter how minimal); or 2. Deprivation of **all** economically viable use of the property ## Footnote ⚠️ Must deprive the owner of **all economic value**, a severe decline in value does not constitute a taking absent other factors (ex. prohibiting structures to be built on an island where you want to build your beach home probably constitutes an unconstitutional taking)
32
Takings for **public use** are subject to what level of scrutiny?
Rational basis review
33
What constitutes "**just compensation**" for a taking?
Fair market value of the property at the time of taking, measured in loss to the owner
34
What is an **exaction** and when does it constitute a taking?
Improper demand that a property owner give something to the community in exchange for zoning or development approval. Constitutes a taking *unless* there is: 1. **Essential nexus** between exaction and legitimate state interests; and 2. **Rough proportionality** between burden on the developer and benefit to the public
35
# Define bill of attainder
Legislation that **inflicts punishment** on individuals or a designated group **without a trial**. Unconstitutional.
36
What is an **ex post facto** law?
Unconstitutional *criminal* law that either: 1. **Criminalizes conduct** that was *legal* at the time it was done; 2. Imposes a **harsher penalty** after crime is committed; 3. **Decreases** prosecution's **burden of proof** for crime; or 4. **Eliminates a defense** available to D when crime was committed (ex. changing statute of limitations)
37
Where in the Constitution is the Ex Post Facto Clause found?
Contracts Clause
38
List the **fundamental rights**
1. Right to **travel** (nationally); 2. Right to **vote**; and 3. Right to **privacy** * Marriage * Sexual relations * Child-rearing/parenting * Family members to live together * Contraception
39
How do you determine whether regulation of a fundamental right violates **substantive due process** or **equal protection**?
1. If right is infringed for **all people:** substantive due process 2. If right is only infringed for **certain classes** of people: violates equal protection
40
Restrictions on **fundamental rights** trigger what level of scrutiny?
strict scrutiny
41
Restrictions on **nonfundamental rights** trigger what level of scrutiny?
Rational basis review
42
What does the **right** **to contraception** protect?
The fundamental right to **buy and use** contraception
43
Is there a right to receive **public funding** for an abortion?
No
44
Do families have a **fundamental** right to live together?
Yes. Includes the right to live with extended family members.
45
Is there a right to *possess* **obscene materials**?
Yes, within one's home. ## Footnote ⚠️ Exception: there is never a right to possess child pornography.
46
What are valid regulations of obscene material?
Restrictions on the sale, distribution, transportation, or receipt of materials
47
Are restrictions on **residency** requirements for **in-state benefits** constitutional?
Yes, can limit in-state benefits to in-state residents. If durational requirement (e.g. must be a resident for 30 days to receive benefits), must be reasonable and short (1 year residency to be eligible for Medicaid is likely invalid)