Con Law Due Process & Fundamental Rights

Question 1

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

Answer 1

The government, not private individuals.

Exceptions:
1. Public Function Exception- Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
2. Entanglement Exception- Individual and gov. are excessively intertwined * Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement

⚠️

Question 2

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

Answer 2

1. 13^th Amendment;
2. Section 5 of 14th Amendment
3. Commerce Clause; and
4. Federal purse power

Question 3

Who does the Bill of Rights apply to?

Answer 3

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

Question 4

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

Answer 4

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

Question 5

Define: reverse incorporation doctrine

Answer 5

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

Question 6

Important

Test for strict scrutiny

Answer 6

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)

Question 7

When is strict scrutiny triggered?

Answer 7

if law involves a suspect classification or fundamental right

Question 8

Important

Test for intermediate scrutiny

Answer 8

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

Question 9

What are the requirements for strict and intermediate scrutiny?

Answer 9

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.

Question 10

Test for rational basis review

Answer 10

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

Question 11

Who bears the burden of proof in rational basis review?

Answer 11

Challenger; must prove that law is unconstitutional

Question 12

What is Due Process?

Answer 12

• 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

Question 13

What does procedural due process require (generally)?

Answer 13

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

The government must provide a fair process before it can deprive a person of life, liberty, or property

Question 14

Does Procedural Due Process protect individuals from private harm?

Answer 14

No, except where the government has a duty to protect from private harms or there is a special relationship (e.g., duty to involuntaryily commited mental patients or medical care of people in jail)

Question 15

Does procedural due process apply to the government’s negligence?

Answer 15

No, there is no procedural due process violaiton if the injury was caused by the government’s negligence

Question 16

Does procedural due process apply in emergencies?

Answer 16

No unless the government’s behavior shocks the conscience (acted with intent)

Question 17

What constitutes deprivation of liberty?

Answer 17

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

Question 18

What are examples of a deprivation of liberty?

Answer 18

1. Civil institution
2. Parental Rights
3. Deportation and Exclusion

Question 19

What due process is required before civil institutionalization?

Answer 19

Adults: Notice and Hearing unless emergency
Children: screening by neutral fact finder

Question 20

What due process is required before parental rights are taken away?

Answer 20

Must provide clear and convincing of need to terminate parental rights

Question 21

Does an unmarried father have a liberty interest in his child?

Answer 21

Yes unless the mother was married to another dude.

Question 22

Does a deportation involve a loss of liberty subject to due process?

Answer 22

Yes, due process must be provided before an alient is deported. Must have notice, hearing, and right to attorney.

NO due process right to avoid be excluded from entering country

Question 23

What constitutes deprivation of property interests?

Answer 23

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

Question 24

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

Answer 24

No, can be terminated without due process

Question 25

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

Answer 25

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

Question 26

Is a hearing prior to terminating welfare benefits required?

Answer 26

Yes

Question 27

Is a hearing prior to terminating disability benefits required?

Answer 27

No, only a post-termination evidentiary hearing

Question 28

Is a hearing prior to terminating public employment required?

Answer 28

No, only a post-termination evidentiary hearing.

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

Question 29

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

Answer 29

No, only real property

Question 30

What is substantive due process?

Answer 30

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.

More info: Substantive Due Process

Question 31

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

Answer 31

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.

Question 32

What is the Contracts Clause?

Answer 32

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

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

Question 33

A restriction on private contracts is subject to what level of scrutiny?

Answer 33

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

Question 34

A restriction on government contracts is subject to what level of scrutiny?

Answer 34

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

Higher level of scrutiny because of distrust of governments trying to abandon it’s own contracts after they’re made

Question 35

Define: Takings Clause

Answer 35

Prohibits government seizure of property without just compensation (Fifth Amendment). Also called “eminent domain.”

Two types: possessory and regulatory.

Question 36

Is the Takings Clause applicable to states?

Answer 36

Yes, via the Fourteenth Amendment

Question 37

What types of property interests are protected by the Takings Clause?

Answer 37

Real property interests:
* Fee simple
* Easement
* Leasehold estate
* Mortgage/lien
Personal property:
* Patent rights
* Trade secrets
* Contracts

Question 38

What is a regulatory taking and what factors does the court weigh when determining if a regulatory taking occurred?

Answer 38

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

Question 39

What are two brightline types of regulations that constitute a taking? (“per se” takings”)

Answer 39

If regulation results in:
1. Permanent physical occupation (no matter how minimal); or 2. Deprivation of all economically viable use of the property

⚠️ 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)

Question 40

Takings for public use are subject to what level of scrutiny?

Answer 40

Rational basis review

Question 41

What constitutes “just compensation” for a taking?

Answer 41

Fair market value of the property at the time of taking, measured in loss to the owner

Question 42

What is an exaction and when does it constitute a taking?

Answer 42

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

Question 43

Define: bill of attainder

Answer 43

Legislation that inflicts punishment on individuals or a designated group without a trial. Unconstitutional.

Question 44

What is an ex post facto law?

Answer 44

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)

Question 45

Where in the Constitution is the Ex Post Facto Clause found?

Answer 45

Contracts Clause

Question 46

List the fundamental rights

Answer 46

1. Right to travel (nationally);
2. Right to vote; and
3. Right to privacy * Marriage * Sexual relations * Abortion * Child-rearing/parenting * Family members to live together * Contraception

Question 47

How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?

Answer 47

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

Question 48

Restrictions on fundamental rights trigger what level of scrutiny?

Answer 48

strict scrutiny

Question 49

Restrictions on nonfundamental rights trigger what level of scrutiny?

Answer 49

Rational basis review

Question 50

Do families have a fundamental right to live together?

Answer 50

Yes. Includes the right to live with extended family members.

Question 51

Is there a right to possess obscene materials?

Answer 51

Yes, within one’s home.

⚠️ Exception: there is never a right to possess child pornography.

Question 52

What are valid regulations of obscene material?

Answer 52

Restrictions on the sale, distribution, transportation, or receipt of materials

Question 53

Are restrictions on residency requirements for in-state benefits constitutional?

Answer 53

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)