Kaplan Pgs 117-131 Due Process And BOR

Question 1

What is the bill of rights?

Answer 1

The first 10 amendments to the constitution

Question 2

Originally the Bill of Rights was only applicable to the federal government, but what changed that made it also applicable to the states?

Answer 2

The 14th amendment was adopted that required that states could not abridge the privileges or immunities of citizens, deprive people of life/ liberty/property without due process, or deny equal protection to anyone

Question 3

What are the three major things that are included in the 14th amendment?

Answer 3

– Due process
– equal protection
– privileges and immunities

DP, EP, P&IC

Question 4

Under the privileges and immunities clause, the court struck down a California law that limited the payment of welfare benefits for first year residents to the amount that they would have gotten from their former state. Why was this?

Answer 4

Because the law violated the right to travel freely from state to state

Question 5

The Supreme Court rejected the idea that the due process clause incorporated all of the Bill of Rights, but under the doctrine of selective incorporation, what did they find?

Answer 5

That these specific provisions are applicable to the states:
• 1st: freedom of speech and press, right to assemble, petition the government for a redress of grievances, free exercise of religion, establishment clause
• 2nd: right to keep and bear arms
• 4th: right to be free from unreasonable searches and seizures
• 5th: double Jeopardy, self incrimination, just compensation for a taking
• 6th: speedy and public trial for criminal prosecutions, right to confront and cross-examine witnesses, right to counsel, right to a jury trial in a criminal case
• 8th: against cruel and unusual punishment, excessive bail, excessive fines
• due process clause: the state cannot infringe on fundamental rights of parents to make childbearing decisions regarding care, custody, and control

NOT INCLUDED: 14th extends the bill of rights except in these areas
– Fifth amendment: right to a jury trial in a criminal case
– seventh amendment: right to a jury trial in a civil case
– third amendment: prevent quartering soldiers in your home

Question 6

The due process and equal protection clauses protect the rights of who?

Answer 6

Persons, and not just citizens. Both a corporation and aliens are considered to be persons under due process and equal protection

Question 7

What are the two amendments that protect against the deprivation of life, liberty, or property?

Answer 7

The fifth and 14th

Question 8

If there has been a deprivation of someone’s life, liberty, or property by the government, what is that person entitled to under procedural due process?

Answer 8

Fundamentally fair procedural safeguards such as a form of notice and a meaningful hearing within a reasonable time

Question 9

What are acts that invade a liberty interest that are required to have some kind of procedural due process under the 14th?

Answer 9

– freedom from bodily restraints: the state must give a parolee an evidentiary hearing before it can revoke parole or probation
– physical punishment: corporal punishment of kids in public schools is valid but there’s a liberty interest that exists
– commitment to a mental institution: there must be an adversary hearing provided for adults that are being committed against their will. Minor kids must be given a screening by a neutral factfinder

Question 10

How does the forced administration of medicine not invade a liberty interest under the 14th?

Answer 10

The federal government can give antipsychotic drugs to a defendant against his will in order to render him competent to stand trial as long as:
– it is medically appropriate
– it does not cause substantial side effects
– it is necessary to significantly further an important governmental trial related interest

Question 11

What are things that people have an expected property interest in under procedural due process?

Answer 11

– Public education: entitlement to continue to attend public school. But no evidentiary hearing is required when a student is dismissed for academic reasons
– continued welfare benefits
– state can’t revoke a driver’s license without a hearing
– public employment: there is a property interest in a person keeping their job if the employment is under a tenure system or there’s a clear understanding that the employee can only be terminated for cause. There is no property interest if the position is “at will“ or when a state refuses to renew a fixed term contract
– pre-judgment garnishment: this cannot be done for wages without notice or hearing. If a person is already getting employment benefits, he has a property interest in continuing to get those
– forfeiture of property: the government only has to send a certified letter to a prison to notify an inmate that their property that has been seized will be forfeited. All that is required is an action that is reasonably calculated to apprise the interested parties of the action and give them an opportunity to present their objections. Actual notice is not required, so constructive notice is enough
– business licensing: a licensing scheme for adult businesses must give applicants prompt judicial determination of their claim that the government unconstitutionally denied a license

Question 12

Is procedural due process required when there has been no state action?

Answer 12

No

Question 13

Under procedural due process that protects life, liberty, and property interests, what are examples of each of those things?

Answer 13

– Liberty: freedom from bodily restraints, physical punishment, commitment to a mental institution
– property: public education, welfare benefits, drivers license, public employment, wage garnishment, forfeiture of property, business licensing
– life: capital punishment, abortion, right to die

Question 14

Once it has been determined that a sufficient deprivation of life, liberty, or property has occurred, what is the next step in procedural due process analysis?

Answer 14

Consider these factors:
– the private interest that will be affected by the action
– the risk of erroneous deprivation of this interest and the probable value of extra or substitute procedures
– the government’s interest in streamlined procedures including fiscal and administrative burdens

Question 15

What does due process require with regard to a judge that hears a case?

Answer 15

That he will recuse himself if he has a pecuniary interest in the case such that an average judge would possibly be tempted to give an unbalanced or untrue judgement

I.e.: if one party had a significant and disproportionate influence in getting the judge elected, the judge must recuse himself

Question 16

What does due process say about irrebuttable presumptions?

Answer 16

They violate due process. I.e.: a statutory presumption that pregnant teachers are incapable of performing their duties is unconstitutional, as is a presumption that unwed fathers are unfit parents

Question 17

When you see the 13th amendment, what is the best answer?

Answer 17

Something that involves a private individual that is not a state actor discriminating

Question 18

At its core, what is the commerce clause?

Answer 18

Congressional power to enact legislation that affects interstate commerce

Question 19

When are you most likely to see the contract clause come up?

Answer 19

When the state revokes a contract that it was a party to

Question 20

At its core, what is the dormant commerce clause?

Answer 20

Prohibits a state from passing legislation that improperly burdens or discriminates against interstate commerce

Question 21

What is the difference between the commerce clause and the dormant commerce clause?

Answer 21

• Commerce clause: gives CONGRESS the power to enact legislation that affects interstate commerce
  – dormant commerce clause: STOPS A STATE from passing legislation that burdens are discriminates against interstate commerce

Question 22

What is the best case for a due process clause argument?

Answer 22

When the state does not give a hearing or invades privacy rights

Question 23

What is the best answer choice if equal protection is an issue?

Answer 23

One that has state action interfering with the fundamental interest, like the right to vote or travel, or a classification by race/alienage/sex

Question 24

What is the only time that police power will be the answer?

Answer 24

When there is state action versus federal action

Question 25

What does the privileges and immunities clause do?

Answer 25

It bars states from discriminating against non-resident citizens on fundamental matters unless the regulation specifically targets a problem that comes from a non-resident’s behaviour

Question 26

If you see the privileges and immunities clause as an answer choice, what should you think?

Answer 26

It is almost never correct

Question 27

The supremacy clause is not a good choice on an exam unless what?

Answer 27

There is a congressional statute or provision that conflicts with a state activity

Question 28

When should the Supreme Court avoid making a constitutional decision?

Answer 28

– when there is no issue in controversy/no adversarial conflict
– when the plaintiff cannot show injury by the statute in question
– when the issue isn’t ripe
– when the decision requires a ruling that is broader than the facts of the case
– when the complaint can be resolved in a non-constitutional manner
– when the court can determine a statutory construction that avoids constitutional analysis
– when the complainant benefitted from the statute he now argues is unconstitutional

Question 29

Under substantive due process, what are the major types of regulation?

Answer 29

– Economic regulation

– fundamental rights

Question 30

What kind of protection does economic regulation get under substantive due process?

Answer 30

Challenges to economic regulations get deferential rational basis scrutiny. The challenger has the burden to prove that the regulation lacks a rational connection to a legitimate government interest.

Since the 1930s, the Supreme Court has not struck down any economic regulation on substantive due process grounds.

Basically an economic regulation is upheld if it is rationally related to a legitimate government interest

Question 31

Strict scrutiny review is used under substantive due process to apply to laws that burden the exercise of what fundamental rights?

Answer 31

The right to vote, the right to travel, the right to privacy, first amendment rights, family rights, etc.

Question 32

Substantive due process is used to do what?

Answer 32

To evaluate governmental regulations that affect fundamental rights

Question 33

What are some categories that fall under the penumbra of privacy rights?

Answer 33

– contraceptives
– marriage
– abortion 
– family relations
– sexual orientation
– private education
– obscene material
– right to die
– right to travel
– right to vote
– medical records

Question 34

What is the right of marital privacy?

Answer 34

Laws that prohibit the use of contraceptive devices are invalidated because this falls under the marital privacy right which is included as a penumbra of privacy rights

Question 35

Does the right to use contraceptives belong to single people as well as married people?

Answer 35

Yes

Question 36

Are corporations required to pay for contraception coverage for female workers?

Answer 36

No

Question 37

The right to marry is fundamental, so any substantial interference with that right must be what?

Answer 37

Necessary to further a compelling interest

Question 38

What happened in 2015 regarding same sex marriage?

Answer 38

The Supreme Court found that governmental bans on same-sex marriage are unconstitutional. These bans violate the substantive due process and fundamental right to marriage.

All states must now recognize same-sex marriages that are legally performed in other states, and all states must allow same-sex couples to get married and give them the same rights and obligations that heterosexual married couples get

Question 39

In what way was Roe v. Wade modified in the 1990s?

Answer 39

By a Planned Parenthood case where the court rejected the trimester approach of Roe and instead adopted an undue burden standard.

– Before viability/the first two trimesters: a woman has a protected privacy interest to choose to have an abortion. During this time the government can regulate, but not ban abortion in the interest of either the mother’s health or the life of the fetus. BUT the regulation cannot impose an undue burden on the woman’s right to choose an abortion
– after viability: the state can regulate and proscribe abortion except when it is necessary to preserve the life or health of the mother

Question 40

Can a state require spousal notification or spousal consent before a women can get an abortion?

Answer 40

No

Question 41

Is there a constitutional right for indigent women to get government funding for an abortion?

Answer 41

No

Question 42

Can the state prohibit the use of public facilities and publicly employed staff to perform abortions?

Answer 42

Yes

Question 43

Is there a fundamental right for related people to live together?

Answer 43

Yes

Question 44

Is a zoning ordinance that prohibits members of an extended family from living in a single household constitutional?

Answer 44

No, it is subject to heightened scrutiny

Question 45

Does the fundamental rights that provides that related people can live together also apply to unrelated people?

Answer 45

No

Question 46

What is the parental right that is fundamental under the constitution?

Answer 46

The fundamental right of Parents to make childbearing decisions as well as decisions that concern the care, custody, and control of their children. Parents have the right to make fundamental decisions that affect the lives of their children. Parents also have the right to control visitation with their children by others like grandparents.

Question 47

Can the state involuntarily terminate a parent’s rights to their children?

Answer 47

Yes, but due process requires that the state support its allegations by at least clear and convincing evidence do so

Question 48

What was the major breakthrough regarding homosexual marriages in 2013?

Answer 48

The government held it unconstitutional to restrict the federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions. This gives same-sex couples the rights of married couples regarding tax benefits, healthcare, retirement, and other areas of federal regulations

Question 49

Do parents have the right to privately educate their children outside of the public school system?

Answer 49

Yes

Question 50

Is there a right to possess obscene material in the privacy of your own home?

Answer 50

Yes

Question 51

In what areas can the government severely restrict obscene material?

Answer 51

The sale, purchase, receipt, transport, and distribution both in stores and through the mail.

Also the state can criminalize the private possession of child pornography

Question 52

Is there a fundamental right for terminally ill or comatose patients to choose to die?

Answer 52

No, but there is a due process liberty interest in not being forced to undergo unwanted medical procedures like life-support

Question 53

Does a terminally ill patient have a right to assisted suicide?

Answer 53

No

Question 54

What two things mutually enforce the right of every citizen to travel freely from state to state?

Answer 54

The privileges and immunities clause and the commerce clause

Question 55

If there is a durational residency requirement before the government will dispense benefits, what standard is that held to?

Answer 55

Strict scrutiny

Question 56

If there is a one year waiting period before someone can get welfare or state subsidized medical care, is that permitted?

Answer 56

No, durational residency requirements are subject to strict scrutiny under substantive due process’ right to travel

Question 57

Are reasonable residency requirements valid for getting a divorce or getting reduced tuition at a state university?

Answer 57

Yes

Question 58

Is there a fundamental right to international travel?

Answer 58

No, this can be subject to reasonable restrictions, so Congress can authorize the president to restrict travel to certain countries or danger areas.

Question 59

Why is the privileges and immunities clause almost always the wrong answer on the bar?

Answer 59

Because almost all of the privileges and immunities are protected by the commerce clause, due process clause, or equal protection clause

Question 60

What is involved in the right to vote?

Answer 60

The fundamental right of US citizens that are over 18 to vote extends to all federal, state, and local elections, as well as the primaries.

Strict scrutiny review is used to adjudicate restrictions on the right to vote

Question 61

If the government wants to put regulations on things like ballot access for candidates based on their age, duration of residency, or payment of filing fees, is that OK and what standard is applied?

Answer 61

That is OK if it meets the minimum rational basis scrutiny

Question 62

Are voter registration requirements and regulation of the time, place, and manner to cast your ballot considered to be valid?

Answer 62

Yes, if they do not impose an undue burden on the right to vote

Question 63

How many votes does a person usually get in an election?

Answer 63

The rule is generally “one person, one vote“

Question 64

Is it OK for there to be a poll tax as a prerequisite to vote?

Answer 64

No! This violates equal protection and is unconstitutional

Question 65

Is a state allowed to implement new voter identification laws or eliminate same-day registration?

Answer 65

Yes

Question 66

Is there a fundamental right to the privacy of medical records?

Answer 66

No. There is some right to privacy, but that privacy interest must be balanced against the public interest in disclosure.

Ie: a law that required doctors to report certain prescriptions to the state to be put in a database is constitutional

Question 67

The courts seem to be split about whether there’s a constitutional right to confidentiality of medical records. Most courts of appeals have said there is one, but two have said there is not.

For those that protect this, what are the constitutional treatments that are used to assess this?

Answer 67

– Some circuits say the government’s needs always supersede the patient’s implied right of privacy
– other courts use a balancing test that looks at these factors:
• The type of record requested
• The information that it may contain
• The potential for harm
• The injury from disclosure
• The adequacy of safeguards to prevent unauthorized disclosure
• The degree of need for access
• if there is an express statutory mandate, public policy or public interest in militating toward access

Question 68

Who are the four different ways that a government can accomplish a taking?

Answer 68

– Direct government appropriation
– regulatory taking
– temporary restrictions
– conditional permits

Question 69

If a state validly regulates for health, safety, or welfare purposes under its police power, is the government action considered to be a taking?

Answer 69

No

Question 70

What is a direct government appropriation?

Answer 70

A taking that occurs when there is an actual appropriation of someone’s property

Question 71

What is a taking?

Answer 71

Any permanent, physical invasion, no matter how small, is a taking

Question 72

What is inverse condemnation?

Answer 72

A Government regulation put on land that denies the owner of all reasonable economically beneficial uses of the land

Question 73

If a regulation just decreases the economic value of land, how will the court decide if a taking has occurred?

Answer 73

The court will use a balancing test that looks at:
– the economic impact of the regulation on the claimant
– the extent that the regulation has interfered with distinct investment-backed expectations
– the character of the governmental action

Question 74

What is an example of a regulatory taking?

Answer 74

A state zoning law getting passed after someone bought property and then the law saying the owner cannot erect any permanent structure on his land

Question 75

If there has been a temporary restriction put on land by the government, is that considered to be a taking?

Answer 75

The court looks at the dimensions of the property interest and the term of years.

I.e.: if a temporary restriction is put on property to stop development in the area for 32 months, that is not a taking because the property will recover its value when the prohibition is lifted, so that will not permanently deprive the owner of all economically beneficial uses of his land

Question 76

What does public use mean with regard to a taking?

Answer 76

Public purpose