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Constitutional Law > Individual Liberties > Flashcards

Individual Liberties Flashcards

1
Q

Procedural Due Process

A

Procedures necessary for the gov to follow to take away someones life liberty or property.

Ask two questions:

1) Has there been a deprivation of life liberty or property?
2) If there has been a deprivation, ask, what procedures are required?

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2
Q

Has there been a deprivation of life, liberty or property? (procedural due process)

A
  • Defined:
    • deprivation of liberty occurs if there is the loss of significant freedom provided by the Constitution or statute
    • Deprivation of Property: an entitlement (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fufilled
  • Intentional Action:
    • Government negligence is insufficient
    • Must be an INTENTIONAL GOVERNMENT ACTION or at least RECKLESS ACTION for liability to exist
    • EMERGENCY SITUATIONS : government liabile only if its conduct shocks the concious
  • Failure to Protect
    • failure to protect people from privately inflicted harms does not deny due process (e.g. kid with abusive father unless gov created risk)
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3
Q

What procedures are required if there has been a deprivation?

(PDP)

A

3 Part balancing test:

  1. Importance of the Interest to the Person: the more important the interest is to the person, the more procedural protection required.
  2. Additional Procedures: would more additional procedures lead to better and more accurate decisions and reduced erroneous deprivation. AND
  3. Effeciency: governments interest in saving money and time for the government.
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4
Q

Examples for PDP

A
  • Welfare Benefits: termination requires both notice and hearing
  • Permanent termination of parent’s right of custdy: notice and a hearing
  • Institutionalization of adult in non-emergency situation: notice and a hearing
  • _SS Disability Benefits Terminatio_n: post-termination hearing
  • Harm to reputation: Not a loss of liberty
  • Prisoners: rarely given liberty interests–usually always lose on these grounds
  • Punitive Damage awards: jury’s instructions to guide its discreation and judicial review to ensure resaonable award.
  • Enemy Combatant non-citizen: ability to challenge continued detention
  • Citizen facing charges in foreign country held by american military: habeas corpus petition seeking review of detention in federal court
  • Recusal of Judge: requies if there is a substantial risk of actual bias
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5
Q

Substantive Due Porcess

A

Whether the government has an adequate reason for taking away a person’s life, liberty or property.

usually confined to economic liberties and safeguarding property

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6
Q

Economic Liberties

A
  • Minimal protection for economic liberties
  • Use a rational basis test for laws affecting economic rights
  • Takings clause
  • Contracts Clause
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7
Q

Takings Clause

A
  • 5th Amendment
  • Government may take private property for public use but only if it provides
    • just compensation OR
    • termatinates regulataoin and pas the owenrdamages that were incurred while the regulation was in effect (temporary takings)
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8
Q

Test to evaluate a taking

A
  • Is there a taking?
    • possessory
    • regulatory
  • Is it for public use?
  • Is just compensation paid?
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9
Q

Is there a taking?

A
  • Possessory Taking: Government confiscation or physical occupation of property is always a taking
  • _Regulatory Takin_g: Government regulation is a taking if it leaves no reasonably economically viable use of the property
  • Notes:
    • Proportionality: Government conditions on the development of property must be justified by a benefit that is roughly proportionate to the burden impose or it is a taking.
    • Takings Challenge: may bring challenge to regulation that existed at the time the property was acquired
    • Temporary use: temporary denying an owner’s use of property (e.g. development of land) is not a taking as long as the action was reasonable
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10
Q

Is it for public use?

A

Taking is for public use so long as the government acts out of a reasonable belief that the taking benefits the public.

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11
Q

Is just compensation paid?

A

Measured in terms of loss to the owner in reasonable market terms

Gain to the government is irrelevant

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12
Q

Contracts Clause

A
  • Article I, Sec. 10
  • No state shal impair the obligations of contracts
  • Applies only to state or local interference with already existing contracts
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13
Q

Contracts clause: when may state and local governments intfere with contracts

A
  • must meet intermediate scrutiny:
    • Does the legilsation substantially impair a party’s rights under an existing contract?
    • If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
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14
Q

Contracts Clause: when may a state or local interfere with government contracts

A

Must meet strict scrutiny.

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15
Q

Ex Post Facto

A
  • Neither federal or state governments can adopt ex post facto rules.
  • Does not apply in civil cases. ONLY CRIMINAL
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16
Q

Privacy (Substantive Due Process)

A

Strict Scrutiny applied when a fundamental right is identified.

17
Q

Fundamental rights protected under privacy

A
  1. Right to Marry
  2. Procreate
  3. Custody of one’s children:
  4. Right to keep the family together (includes extended family)
  5. Control the upbringing of children
  6. Purchase and use contraceptives
  7. Right to abortion
  8. Private consensual same-sex activity
  9. Refuse medical treatment
  10. Second Amendment (not clear what level of scrutiny)
  11. Right to travel
  12. Right to vote

NO RIGHTS TO:

  1. physician assisted suicide
  2. right to education
18
Q

Custody of One’s Children

A
  • can only be overcome if it proves a compelling reason like abuse or neglect
  • State may create an irrebutable presumption that a married woman’s husband is the father of a child
19
Q

Right to Abortion

A

Standard: PRior to viability, states CANNOT prohibit abortions so long as they do not create an undue burden on the ability to obtain abortions

E.g. 24 hour waiting period not an undue burden

  • Woman’s health: After viability, states may prohibit unless necessary to protect woman’s life or health
  • Subsidize: no duty to subsidize abortions or to provide them at public hospitals
  • Spousal consent and notification: unconstitutional
  • Parental Notice and consent laws for unmarried minors: may requires so long as it creates an alternative procedures where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself.
20
Q

Right to Refuse medical treatment

A
  • Competent adults have the right to refuse medical treatment; even life saving procedures
  • unclear what scrutiny used
  • a state has a compelling interest in protecting the sanctity of life and so may requires clear and convincing evidence that a person wanted treaterment terminated before it is ended
  • state may prevent family members from terminating treatment for another
21
Q

Right to bear arms

A

right to have weapons for self-defense but not clear on scrutiny required

22
Q

Right to Travel

A
  • Laws preventing individuals from moving into a state must meet strict scrutiny
  • Durational residencey requirements: must meet strict scrutiny–requiring you live somewhere for period to receive benefit
    • for voting, 50 days is max durational requirement
  • no fundamental right to international travel–rational basis
23
Q

Right to Vote

A
  • Laws denying some citiznes right to vote must meet SS
  • One-person-one-vote for all state and local elections
  • At large elections aare consitutional unless proof of discriminatory purpose (all voters cast a vote for all officeholders)
  • Use of race in draing elections lines for benefit of minority must meet SS
  • Counting uncounted votes without standards in a presidential election violates EP
24
Q

Strict Scrutiny Rights

A
  • Marry
  • Procreate
  • Custody of children
  • Keep family together
  • control raiing children
  • contraceptives
  • travel (EP VII-H)
  • Vote (EP VII_H
  • Speech (Amend I VIII
  • Association Amend 1 sec VIII
  • Religiion
25
Q

Undue Burden Test Rights

A

Right to abortion

26
Q

Not a fundamental Right (Rational basis)

A
  • Practice a trade or profession
  • physician assisted suicide
  • education
27
Q

Unkown level of scrutiny

A
  • Right to engage in private consensual homosexual activity
  • right to refuse medical treatment
  • firearms

Constitutional Law (8 decks)

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