Due Process Clause Flashcards
What provision regarding due process is applicable against the federal government?
5th A
What provision regarding due process is applicable against states?
14th A
What is procedural due process?
Procedural due process, protected under the due process clause of the 5th A, extended to the states under the 14th A protects against governmental deprivation of life, liberty or property without due process of law
What is liberty as it pertains to due process of law?
Freedom from bodily restraint and physical punishment
What is property as it pertains to due process of law?
Property includes:
1. public education
2. public employment if the employment is either
- fixed-term or
-employee may only be fired for cause
3. welfare benefits
4. driver’s license
What is life for purposes of due process clause?
Capital punishment
Who does due process clause apply to?
all people, citizens and non-citizens, and corporations
What is required under procedural due process?
To deprive someone of life, liberty or property, the government must giveL
1. notice
2. opportunity for a hearing
What are factors that determine whether person has been given adequate notice and hearing?
Factors to determine adequacy of notice and hearing:
1. the importance of the individual interest protected
2. the risk of erroneous deprivation of the interest through the procedures used
3. the government’s interest in a streamlined process
What is substantive due process?
The rights that are not ennumerated in the Constitution
What are substantive due process standards of review?
- Strict scrutiny
- Rational basis review
What is required for a rational basis review?
The P must show that the law is not rationally related to any legitimate government interest
What is required for strict scrutiny review?
The government must show a compelling government interest and that its legislation is narrowly tailored to achieve its purpose
What type of rights are implicated by economic regulation?
Substantive due process rights are not economic
What standard of scrutiny are economic regulations subjected to?
Because economic rights are not included as rights protected by substantive due process, economic regulations only have to meet rational basis review
What are fundamental rights subject to substantive due process?
- Contraception
- Marriage
- Family relations
- Private education
- Possession of obscene material
- Right to travel
- Right to vote
What is protected regarding family relationships regarding fundamental rights?
- States cannot prohibit members of an extended family from living together in a single household
Is it a violation of substantive due process for a state to ban unrelated persons from living together in a single-family residence?
No
What is protected regarding the substantive due process fundamental right regarding possession of obscene material?
One has the right to possess obscene material other than child pornography in one’s own home, but there is no right to buy or sell that same material
What is the fundamental right to travel?
The 14th A privileges or immunities clause allows citizens to travel freely from state to state and to set up residency in a new state
Where does the fundamental right to vote come from?
Generally, the right to vote comes from the First Amendment Right of Association and 14th A
What aspect of the fundamental right to vote is protected by the 15th A?
States cannot discriminate with respect to race regarding voting
What is the fundamental right regarding voting protected by the 19th A?
States cannot discriminate with respect to sex
What are voting restrictions that are constitutional?
- reasonable residency and voter registration requirements
- reasonable regulation of time and manner of casting votes
- denying felons the right to vote
