Due Process and Equal Protection Flashcards
(27 cards)
Due Process Concept
The Due Process Clauses of the Fifth Amendment (applicable to the federal government) and the Fourteenth Amendment (applicable to the states) provide that the government shall not take a person’s life, liberty, or property without due process of law. An intentional deprivation of life, liberty, or property requires fair procedures and an unbiased decision maker.
Due process contemplates fair process/procedure, which requires at least an opportunity to present objections to the proposed action to a fair, neutral decisionmaker (not necessarily a judge).
“Liberty” under the DPC
The term “liberty” includes more than just freedom from bodily restraints. A deprivation of liberty occurs if a person (i) loses significant freedom of action; or (ii) is denied a freedom provided by the Constitution or a statute.
Government acts that cause denial of the right to engage in gainful employment, loss of a freedom provided by the Constitution, or denial of the right to vote are within the definition of deprivation of liberty under the Due Process Clause.
“Property” under the DPC
Due Process claims can be based on legitimate claims or entitlements to property. The term property is broader here than personal belongings, realty, chattels, and the like.
There must be a legitimate claim or entitlement to the benefit based on state or federal law or policy.
Property may include: Business licenses, continued employment, a right conferred through state staute… [add others]
Factors to determine the type of procedure required under the DPC
The level of due process that is required depends on the circumstances surrounding the deprivation of the interest.
The courts consider these factors:
(i) The importance of the individual’s interest that is involved,
(ii) The value of specific procedural safeguards of the individual’s interest, and
(iii) The government’s interest in fiscal and administrative efficiency. Normally, the person whose interest is being deprived should also receive notice of the government’s action and have an opportunity to respond before termination of the interest. However, the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.
Business Licenses as Property Rights under DPC
A business license is a valid property right, and procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before the government may deprive a person of property. Thus, a store owner should be granted a hearing before his license can be suspended.
Public Employee Termination and Procedural Due Process
Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for “cause.”
The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. Due process also mandates that a public employee whose employment can only be terminated for cause be given an evidentiary hearing.
Likewise, even when a post-termination hearing is appropriate, an employee likely still has a right to at least respond to the charges prior to the termination.
Right to Privacy (SDP)
Privacy is a Fundamental Substantive Due Process:
- The right to marry (Loving v. Virginia)
- The right to procreate
- The right to custody of one’s children
- State may recreate an irrebuttable presumption that a married woman’s husband is the father of the child - The right to keep the family together
- Includes extended (related) family - Right to control children’s upbringing
- Right to purchase and use contraceptives
- No right to abortion
-Laws interfering with abortion are reviewed under the rational basis standard - Right to engage in private consensual gay activities.
- Right to refuse medical care
- competent adults have right to refuse even life saving medical treatment
- doesn’t apply to communicable diseases (e.g., vaccines)
- state can require clear and convincing evidence that a person wanted treatment terminated before it is ended
- state may prevent family members from terminating treatment for another - No right to phsycian-assisted death
Second Amendment
- Second Amendment protects rights to have handguns in home for security
- States cannot require a concealed carry permit be conditioned on a showing of a safety need.
- TEST: Regulations on guns are allowed if HISTORICALLY PERMITTED.
Levels of scrutiny not used for guns. can regulate guns in sensitive places.
Right to Travel
Law prevebtubg people from moving to a state –> strict scrutiny test
Durational residence requirements –> strict scrutiny
- Archetype: Shapiro v. Thompson. Law allowing people to get state welfare benefits only after living in PA for a year was a violation of right to travel under EPC.
- 50 days is maximum allowable durational residence requirement.
Foreign travel –> No fundamental right to international travel. Rational basis
Right to vote
Fundamental right under EPC
- Laws that deny some citizens from voting –> strict scrutiny. Includes “poll taxes” and property ownership requirements.
BUT: regulations of electoral process to prevent fraud only need to be desirable, on balance.
- One person, one vote for all state and local elections. Districts must be ~ same pop for elected body votes.
- At-large election okay unless discriminatory purpose.
- Use of race to draw election districts –> strict scrutiny.
- Counting uncounted votes without standards in a presidential election violates EPC (Bush v. Gore)
- Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or “rational basis,” standard.
Fundamental RIght to Education
There is no fundamental right to education under the Constitution.
Fundamental rights triggering strict scrutiny
- Right to marry
- Right to procreate
- Right to custody of children
- Right to keep family together
- Right to control child’s upbringing
- Right to purchase/use contraceptives
- Right to travel (in country)
- Right to vote
- Freedom of Speech (covered by 1A)
- Freedom of Association (covered by 1A)
- Free Exercise of Religion (covered by 1A)
Standard of Review for Right to Possess Firearms
Fundamental Right under the Second Amendment.
Constitutional Test: Regulations are allowed only if they were historically permitted. E.g., regulations of guns in sensitive places are allowed (such as schools).
Rational Basis Standard
If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law is valid if it is rationally related to a legitimate government purpose.
Rationally-related = the law will be upheld unless it is arbitrary or irrational.
The law need NOT be the least burdensome means to achieve the legislative goal. The rational relationship test does not require a tight fit between the goal sought and the law employed-just a rational connection.
The burden of proof is on the CHALLENGER to show that the law is unconstitutional, NOT on the government to show that it is necessary.
Rights That Are Not Fundamental
Laws regulating non-fundamental rights are only entitled to rational basis review. These include:
- Right to practice a trade or profession
- Right to physician-assisted death
- Right to education
Rights where level of scrutiny is unknown
Right to engage in private, consensual homosexual activity
Right to refuse medical treatment
Right to Abortion
(D) The Supreme Court recently overruled the line of cases that held that the Constitution protected a woman’s right to obtain an abortion.
As there is no longer a constitutional right to an abortion, the matter is left to the states to legislate at all stages of pregnancy.
one person, one vote principle
- Congressional districts require almost exact mathematical equality between the congressional districts within a state.
Rationale: voting is a fundamental right, diluting one person’s vote compared to another’s raises EPC concerns, and there is no compelling interest that would justify more than a couple of percentage points difference from district to district.
- State government districts: The variance from district to district may not be UNJUSTIFIABLY LARGE. Much more lenient standard than the “almost exact mathematical equality” standard. A variance of even 16% has been found to be constitutionally valid.
Generally, if the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population.
Suspect Classes under EPC
Race, national origin, and alienage are the three suspect classifications
Strict Scrutiny is applied when reviewing government action or law on the basis of Equal Protection
Equal Protection (Federal vs State)
Equal Protection is applied to the federal government via the 5th Amendment Due PRocess Clause (but uses the same test as 14th Amendment EPC).
Equal Protection is applied to the states via the 14th Amendment Equal Protection Clause
Equal Protection Analysis (2 Steps)
Is there intentional discrimination against a protected (suspect or quasi-suspect) class?
— Mere disparate impact or effect alone is NOT enough; plaintiff must show government intent to discriminate.
Intent to discriminate shown when (i) the classification appears in the law itself (facial discrimination), (ii) the law was applied in a purposefully discriminatory manner, or (iii) the law was enacted or maintained for a discriminatory purpose.
If intentional discrimination is shown, apply the appropriate level of scrutiny (usually strict or intermediate), and determine whether the government can justify the classification under that scrutiny.
If discriminatory intent is not shown, then rational basis will be applied to the law,
When can govt programs differentiate based on race?
Under the Equal Protection Clause, a government classification based on race is constitutional only if the government can show that the discrimination is necessary to achieve a compelling interest.
The Supreme Court has held that remedying past discrimination is a compelling interest and that a hiring program to correct the effects of past discrimination was necessary to achieve that interest.
Alienage and Equal Protection
Under the Equal Protection Clause, state classifications based on alienage are subject to strict scrutiny and so must serve a compelling interest to be constitutional.
Exception: Rational basis where a state/local government discriminates against aliens when hiring persons for jobs involving “self-government” processes (police officers, teacher, P.O.s)
Privileges or Immunities Clause vs Substantive Due Process Clause vs Equal Protection Clause
Use Privileges or Immunities Clause when a state law discriminates against new residents by limiting their rights as citizens (e.g., welfare benefits, professional licensing waiting periods).
Use Substantive Due Process when a fundamental right is burdened generally without necessarily a discriminatory classification.
Use Equal Protection when a law discriminates against a class of persons based on a suspect or quasi-suspect classification.
