Individual Liberties Flashcards
(14 cards)
Procedural Due Process (Generally)
Did the government follow adequate procedures when it took life, liberty, or propery?
* What kind of notice and what kind of hearig?
Substantive Due Process (Generally)
Did the government have an adequate reason for taking life, liberty, or property?
* Usually protects economic liberties or privacy
Equal Protection (Generally)
Does the government have an adequate reason for differences in its treatment of people?
* Focus = Type of discrimination & Level of Scrutiny
Has there been a deprivation of life, liberty, or property? (Procedural Due Process)
- Deprivation of Liberty = Loss of significant, legally protected freedom
- Deprivation of Property = Entitlement is not fulfilled (Entitlement: Reasonable expectation of continued receipt of a benefit)
- Government negligence is not sufficient for a deprivation of due process. Generally, there must be intentional government action or at least reckless action for liability to exist.
- However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience.”
- Generally, the government’s failure to protect people from privately inflicted harms does not deny due process
What Procedures are Required (Procedural Due Process)
3 Part Balancing Test:
1. The importance of the interest to the individual
2. The ability of additional procedures to increase the accuracy of the fact-finding
3. The government’s interests
Examples:
* Before welfare benefits are terminated there must be notice and a hearing
* When Social Security disability benefits are terminated, there need be only a post-termination hearing
* Before a school can discipline a student there must be notice of the charges and an opportunity to explain
* Before a parent’s right to custody of a child can be permanently terminated there must be notice and a hearing
* Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness
* An American citizen detained as an enemy combatant must be accorded due process
* Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing (government may seize property used in illegal activity, even if it has an innocent owner)
Economic Liberties
Economic Liberties = Rational Basis Test
* Minimal Protection
* Government usually wins
Takings Clause
Government may take private property for public use if it provides just compensation
Is there a Taking?
* Possessory taking—Government confiscation or physical occupation of property is a taking.
* Regulatory taking—Government regulation is a taking if it leaves no reasonable economically viable use of the property
* Conditions on development = Benefit roughly proportional to burden
* Can challenge preexisting regualtions
* Temporary denial of development = Must be reasonable
Is it for public use?
* Reasonable belief it will benefit the public
* Broadly defined
* If not for public use the taking is not valid (usally never an issue)
Is just compensation paid?
* Measure loss to owner using reasonable market value
* Gain to the taker is irrelivant
Contracts Clause
State/Local law can’t impair existing contracts
* Federal Laws = Rational Basis
* Government Contracts = Strict Scrutiny
Private Contracts = Intermediate Scrutiny (special form)
* Substantial impairment
* Reasonably & narrowly tailored to legitimate & important government interest
Ex Post Facto Clause
Can’t punish conduct that was lawful when done or retroactively increase penalty
* Only for criminal laws
* Retroactive civil liability gets rational basis review
* Usually a wrong answer on MBE for questions about contract clause
Bill of Attainder: Directing punishment of specific individuals without trial (unconstitutional)
Privacy Rights (Strict Scrutiny)
- The right to marry (laws prohibiting same-sex marriage violate the right to marry)
- The right to procreate
- The right to custody of one’s children (A state may create an irrebuttable presumption that a married woman’s husband is the father of her child)
- The right to keep the family together (includes extended family) (must actually be related)
- The right to control the upbringing of one’s children (court cannot order grandparents visitation over parents objections unless strict scrutiny is met)
- The right to purchase and use contraceptives
- There is no right to abortion under the Constitution. Only rational basis review is to be used in evaluating laws regulating abortions.
- The right to privacy protects a right to engage in private consensual homosexual activity (level of scrutiny unclear)
- The right to refuse medical treatment (can be required to be vaccinated)
i. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
iii. A state may prevent family members from terminating treatment for another. - There is not a constitutional right to physician-assisted death.
Second Amendment Right to Bear Arms
“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
1. The Second Amendment protects the right to have handguns in the home for the sake of security.
2. State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional.
3. State laws regulating guns are allowed only if they were a type of regulation that historically existed.
Right to Travel
- Laws that prevent people from moving to a state = Strict Scrutiny
- Durational residency requirements = Strict Scrutiny (for voting 50 days is the maximum allowable durational residence requirement)
- Foreign Travel = Rational Basis
Right to Vote
Laws keeping some citizens from voting = Strict Scrutiny
* Ex: Poll Taxing (unconstitutional)
* Ex: Property Ownership Requirements (unconstitutional)
Can protect integrity of system if desirable = Balancing Test
One person, one vote
* For any elected body, where there are districts within the state, all disticts have to be about the same in population
At-large elections allowed absent discriminatory purpose
* Where all of the voters, vote for all of the office holders
Use of race to draw lines = Strict Scutiny
Counting uncounted votes without standards in a presidential election violates equal protection
No Fundamental Right to Education
Supreme Court has held there is no fundamental right to education
