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MBE > MBE Constitutional Law > Due Process & Fundamental Rights > Flashcards

Due Process & Fundamental Rights Flashcards

1
Q

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

A

The government, not private individuals.

⚠️ Exceptions:

  1. Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
  2. Individual and gov. are excessively intertwined
    • Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
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2
Q

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

A
  1. 13th Amendment;
  2. Commerce Clause; and
  3. Federal purse power
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3
Q

Who does the Bill of Rights apply to?

A
  1. Federal government; and
  2. States via the Fourteenth Amendment Due Process Clause (most provisions, see incorporation card)
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4
Q

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

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

Define

reverse incorporation doctrine

A

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

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6
Q

Test for strict scrutiny

A

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)
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7
Q

When is strict scrutiny triggered?

A

if law involves a suspect classification or fundamental right

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8
Q

Test for intermediate scrutiny

A

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

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9
Q

What are the requirements for strict and intermediate scrutiny?

A

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.

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10
Q

Test for rational basis review

A

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

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11
Q

Who bears the burden of proof in rational basis review?

A

Challenger; must prove that law is unconstitutional

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12
Q

What is Due Process?

A
  • 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
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13
Q

What does procedural due process require (generally)?

A

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
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14
Q

What constitutes deprivation of liberty?

A

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

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15
Q

What constitutes deprivation of property interests?

A

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
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16
Q

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

A

No, can be terminated without due process

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17
Q

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

A
  1. Importance of the protected interest;
  2. Risk of deprivation with current procedures and value of additional procedures; and
  3. Government burden (fiscal and administrative) to provide process
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18
Q

Is a hearing prior to terminating welfare benefits required?

A

Yes

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19
Q

Is a hearing prior to terminating disability benefits required?

A

No, only a post-termination evidentiary hearing

20
Q

Is a hearing prior to terminating public employment required?

A

No, only a post-termination evidentiary hearing.

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

21
Q

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

A

No, only real property

22
Q

What is substantive due process?

A

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

23
Q

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

A

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.

24
Q

What is the Contracts Clause?

A

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

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

25
Q

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

A

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
26
Q

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

A

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
27
Q

Define

Takings Clause

A

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

Two types: possessory and regulatory.

28
Q

Is the Takings Clause applicable to states?

A

Yes, via the Fourteenth Amendment

29
Q

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

A

Real property interests:

  • Fee simple
  • Easement
  • Leasehold estate
  • Mortgage/lien

Personal property:

  • Patent rights
  • Trade secrets
  • Contracts
30
Q

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

A

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 (i.e. government’s interest in the taking)
31
Q

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

A

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)

32
Q

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

A

Rational basis review

33
Q

What constitutes “just compensation” for a taking?

A

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

34
Q

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

A

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
35
Q

Define

bill of attainder

A

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

36
Q

What is an ex post facto law?

A

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)
37
Q

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

A

Contracts Clause

38
Q

List the fundamental rights

A
  1. Right to travel (nationally);
  2. Right to vote; and
  3. Right to privacy
    • Marriage
    • Sexual relations
    • Child-rearing/parenting
    • Family members to live together
    • Contraception
39
Q

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

A
  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
40
Q

Restrictions on fundamental rights trigger what level of scrutiny?

A

strict scrutiny

41
Q

Restrictions on nonfundamental rights trigger what level of scrutiny?

A

Rational basis review

42
Q

What does the right to contraception protect?

A

The fundamental right to buy and use contraception

43
Q

Is there a right to receive public funding for an abortion?

A

No

44
Q

Do families have a fundamental right to live together?

A

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

45
Q

Is there a right to possess obscene materials?

A

Yes, within one’s home.

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

46
Q

What are valid regulations of obscene material?

A

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

47
Q

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

A

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)

MBE Constitutional Law (8 decks)

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