Due Process

Question 1

What should you look for when assessing the best source for an argument that a particular law is unconstitutional?

Answer 1

Whether the Constitutional provision protects a person from state actors or from the Federal government.

Question 2

If the Federal Government is discriminating against the states, what should be invoked?

Answer 2

The 14th Amendment Due Process Clause should be invoked.

Question 3

If the Federal government is discriminating against citizens, what should be invoked?

Answer 3

The Due Process Clause of 5th Amendment.

Question 4

What provisions of the Bill of Rights are not incorporated to the states through the 14th Amendment Due Process Clause?

Answer 4

1. 5th Amendment right to indictment by a grand jury
2. 7th Amendment: right to a jury trial in a civil case
3. 8th Amendment: excessive fines clause

Question 5

What constitutional analysis should you apply for discrimination by state governments?

Answer 5

14th Amendment.

Question 6

What is the Constitutional argument against states discriminating against visitors?

Answer 6

Article 4: Privileges and Immunities Clause

Question 7

What is the Constitutional argument against states discriminating against non-state citizens from moving to their state?

Answer 7

Privileges or Immunities Clause of 14th Amendment.

More Info: Privileges and Immunities Clause

Question 8

What does Procedural Due Process protect?

Answer 8

It protects persons against deprivations of life, liberty, or property without due process of law.

More Info: Procedural Due Process

Question 9

Who is a person with the right to receive procedural due process?

Answer 9

1. All people (> citizen)

And

2. Corporations

Question 10

What is a liberty interest?

Answer 10

Anything that you want to do you have a liberty interest in doing. A liberty interest is compromised by imprisonment and physical punishment.

Question 11

List the procedural due process property interests?

Answer 11

1. Public education
2. Public employment if: termination for cause or tenured, ≠ at will
3. Welfare benefits
4. Driver’s licenses
   * More Info:* Due Process Property Interests

Question 12

What is a life interest?

Answer 12

The interest in your life when the government seeks capital punishment.

Question 13

What process is due? In other words, what procedures must the government follow in order to be able to deprive a person or corporation of life, liberty or property?

Answer 13

The government must give a person or corporation:

1. Adequate notice to the plaintiff

And

2. Adequate opportunity for plaintiff to be heard

Question 14

To determine what constitutes adequate notice and hearing, the court must consider what three factors?

Answer 14

1. Importance of the protected interest
2. Risk of error with the procedures used and the probable value of other/additional procedures
3. How burdensome it is on the government to provide the procedural protections

Question 15

The economic regulation of private citizens and companies by both the states and the Federal Government only has to meet what test?

Answer 15

Rational Basis Review

Question 16

If the government wants to regulate personal rights, what test must be meet?

Answer 16

Strict Scrutiny

Question 17

What must the government show in order to pass the strict scrutiny standard?

Answer 17

The government must show that there is a compelling interest (very important), that the interest is the actual motive behind government action, and that there is no other way to achieve the interest (necessary).

More Info: Strict Scrutiny

Question 18

What is the rational basis review test? Who bears the burden of persuassion?

Answer 18

The burden of persuassion is on the plaintiff to show that the law is not rationally related to any legitimate government purpose.

More Info: Rational Basis Review

Question 19

List the fundamental privacy rights?

Answer 19

1. Sexual orientation
2. Contraception
3. Abortion
4. Marriage
5. Family relations
6. Private Education
7. Possession of Obscene Material
8. Refusal of medical procedures

Question 20

What does the right to contraception protect?

Answer 20

The fundamental right to buy and use contraception

Question 21

When is an elective abortion law unconstitutional?

Answer 21

Any regulation on a pre-viability abortion is unconstitutional if it imposes an undue burden on a woman’s right to choose an abortion

Question 22

List five examples of laws which place an undue burden on abortion access.

Answer 22

1. A total ban on abortions
2. Requiring spousal consent
3. Requiring spouse to notify husband
4. Recording patient names
5. Parental consent without a judicial bypass

Question 23

List five examples of laws which do not place an undue burden on abortion access.

Answer 23

1. Parental consent with judicial bypass option
2. 24 hour waiting period
3. Truthful and non-misleading information
4. Refusing public funds
5. Ban on certain methods if they are not the safest

Question 24

What must any abortion restriction contain?

Answer 24

Any abortion restriction must have a life-health exception.

More Info: The Life-Health Exception

Question 25

What is meant by the **right** to **family relations**?

Answer 25

The government cannot prohibit members of an extended family from living in a single household.

Question 26

What is meant by the **right** to **sexual orientation**?

Answer 26

The government cannot criminalize same sex sexual acitivity.

Question 27

What is the **test** applied when a law attempts to **regulates** **sexual orientation**?

Answer 27

Rational basis; however, there's never a legitimate interest for a state actor to regulate sexual orientation, so it will fail rational basis review.

Question 28

What is meant by the **right** to **education**?

Answer 28

There is a right to **enroll** in **private schools**.

Question 29

What is meant by the **right** to **possess obscene materials**?

Answer 29

A person can possess the obscene material within their home. However, there is never a right to possess child pornography.

Question 30

What is meant by the **right** to **refuse medical procedures**?

Answer 30

A person has the right **refuse any medical** procedure even if it results in death

Question 31

The **right to travel** is protected by which constitutional **amendment**?

Answer 31

The **14**th Amendment Privileges and Immunities Clause allows every citizen to travel freely from state to state and to set up residency in a new state. However, international travel can be restricted

Question 32

Which **amendments** protect the **right to vote**?

Answer 32

**15**th Amendment: no racial discrimination **19**th Amendment: no sex discrimination **24**th Amendment: no poll taxes **26**th Amendment: no age discrimination above 18

Question 33

What is the level of **scrutiny** applied to **voting legislation**?

Answer 33

If the law places a **total ban** on voting rights, then the strict scrutiny standard is applied. If the law makes it harder **procedurally** to vote, then the government's interest must be important and impose no undue burdern on the right to vote.

Question 34

List four examples of valid **voting regulations**.

Answer 34

1. Reasonable residency requirements 2. Reasonable registration requirements 3. Reasonable time and manner regulations 4. Felons can be denied the right to vote

Question 35

List four examples of **voting restrictions** that are **unconstitutional.**

Answer 35

1. Poll taxes 2. Limiting school board elections to only parents and property owners 3. Counting votes using standards that are overly vague 4. Requiring political party registration for a general election

Question 36

How is the P**resident elected**?

Answer 36

**Electors** pledge their votes

Question 37

Where is the T**akings Clause**?

Answer 37

The **5**th Amendment.

Question 38

What are the **two types** of takings addressed by the Takings Clause?

Answer 38

1. Direct government appropriations 2. Regulatory takings

Question 39

When does **direct government appropriation** occur?

Answer 39

When the government actually **takes possession** of private property.

Question 40

What is a **regulatory taking**?

Answer 40

A **regulation** that is so **onerous** that it amounts to appropriation

Question 41

List the two **types** of **regulatory takings**.

Answer 41

If the regulation causes a: 1. Permanent physical invasion (no matter how minor) Or 2. Deprivation of all economically beneficial use of the property * More Info:* [Regulatory Takings](http://www.acc.com/legalresources/quickcounsel/qcrt.cfm)

Question 42

What is the **limit** on the **government's takings power**?

Answer 42

The land must be taken for a **public purpose**; however, the requirement is construed very broadly, and it may be satisfied even when the land is given to a private developer.

Question 43

What **recourse** is available to a property owner facing a government **taking**?

Answer 43

The property owner can recieve the **fair market value of the property as compensation**. The owner generally cannot get an injunction to prevent the taking.

Question 44

When is **procedural due process** required?

Answer 44

Where there is a **deprivation** of one's life, liberty, or property interest.

Question 45

Does injury to reputation trigger procedural due process?

Answer 45

No.