Individual Liberties - substantive due process

Question 1

Constitutional source of substantive due process

Answer 1

5th Amendment Due Process Clause applies to the federal government.

14th Amendment Due Process Clause applies to state and local governments.

*SAME tests are applied under each clause

Question 2

strict scrutiny applies to:

Answer 2

fundamental right is limited

Question 3

rational basis applies to:

Answer 3

all other cases that are not fundamental rights

Question 4

what is a fundamental right?

Answer 4

depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.

Question 5

State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are

Answer 5

unconstitutional

Question 6

State laws regulating guns are allowed only if

Answer 6

they were a type of regulation that historically existed.

Question 7

right to travel - Laws that prevent people from moving into a state must meet what level of scrutiny?

Answer 7

must meet strict scrutiny

Question 8

right to travel - Durational residency requirements must meet what level of scrutiny?

Answer 8

strict scrutiny

Question 9

right to travel - restrictions on foreign travel must meet what level of scrutiny?

Answer 9

rational basis

Question 10

right to vote

Answer 10

strict scrutiny

Question 11

regulations of the electoral process to prevent fraud must meet what level of scutiny

Question 12

At-large elections are constitutional unless

Answer 12

there is proof of a discriminatory purpose

Question 13

The use of race in drawing election district lines must meet what level of scrutiny?

Answer 13

strict scrutiny

Question 14

Counting uncounted votes without standards in a presidential election: violation?

Answer 14

violates equal protection

Question 15

right to education

Answer 15

not a fundamental right. Only rational basis review.

Question 16

right to marry

Answer 16

Strict scrutiny

law prohibiting a class of adults from marrying is likely to be deemed invalid unless the government can demonstrate that the law is narrowly tailored to promote a compelling, overriding, or (at least) important interest.

Question 17

ban on interracial marriage

Answer 17

A ban on interracial marriage triggers—and fails—strict scrutiny.

Question 18

same-sex marriage

Answer 18

A ban on same sex marriage triggers—and fails—strict scrutiny.

Question 19

prisoner’s rights to marry

Answer 19

A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.

Question 20

minimum age requirements to marry

Answer 20

Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.

Question 21

right to procreate

Answer 21

Strict scrutiny

fundamental right to reproduce that cannot be limited by the state.

Question 22

right to custody

Answer 22

Strict scrutiny

The government cannot permanently terminate parental custody unless it has a compelling reason.

Question 23

right to keep family together

Answer 23

Strict scrutiny

Zoning regulations that prevent family members, including extended family, from living together are invalid.

Question 24

right to control raising of children

Answer 24

Strict scrutiny

include the companionship, care, custody, and management of children

Question 25

right to purchase/use contraceptives

Answer 25

Strict scrutiny A state cannot prohibit distribution of nonmedical contraceptives to adults.

Question 26

right to engage in sexual conduct

Answer 26

Scrutiny level unknown But the state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature.

Question 27

right to refuse medical treatment

Answer 27

Scrutiny level unknown

Question 28

right to practice a trade or profession

Answer 28

not a fundamental right. only rational basis review

Question 29

right to physician assisted death

Answer 29

not a fundamental right. only rational basis review

Question 30

laws that regulate people or entities - fair notice requirement

Answer 30

must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause.

Question 31

one person one vote - congressional elections

Answer 31

STATES must use almost exact mathematical equality when creating congressional districts within the state

Question 32

one person one vote - state and local elections

Answer 32

For state and local elections, the populations of voting districts must be substantially equal.

Question 33

one person one vote - appointed officials and officials elected at large

Answer 33

At large elections (when all of the voters vote for all of the office holders) are constitutional unless there’s proof of a discriminatory purpose.

Question 34

one person one vote - special purpose election

Answer 34

one person, one vote principle does not apply to elections of officials who do not exercise “normal governmental authority” but rather deal with matters of special interest in the community (for example, water storage districts).

Question 35

residency requirements to vote

Answer 35

Reasonable time periods (50 days max) for residency are valid

Question 36

identification requirement to vote

Answer 36

may require voters to show a government-issued voter identification.

Question 37

property ownership requirement to vote

Answer 37

Conditioning the right to vote or hold office on ownership of property is usually invalid. However, there is an exception for special purpose elections

Question 38

poll taxes

Answer 38

unconstitutional

Question 39

registration for primary elections

Answer 39

States may require early registration to vote in primaries. However, states cannot prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

Question 40

Equal Protection question approach:

Answer 40

1. What is the classification? 2. What level of scrutiny should be applied? 3. Does this law meet the level of scrutiny?

Question 41

Constitutional provision concerning equal protection - states and local

Answer 41

Equal protection clause of 14th Amendment

Question 42

Constitutional provision concerning equal protection - federal

Answer 42

through due process clause of 5th Amendment

Question 43

classifications based on race and national origin - scrutiny applied

Answer 43

strict scrutiny

Question 44

racial classifications benefiting minorities - level of scrutiny

Answer 44

Strict scrutiny

Question 45

set-asides to benefit minorities require:

Answer 45

clear proof of past discrimination

Question 46

Rule on affirmative action

Answer 46

Educational institutions may not use race as a factor in admissions decisions to help minorities and enhance diversity.

Question 47

public school systems using race as factor in assigning students to schools to benefit minorities?

Answer 47

Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.

Question 48

gender classifications - scrutiny level

Answer 48

intermediate scrutiny

Question 49

How is the existence of classification determined?

Answer 49

1. classification exists on the face of the law 2. If facially neutral -discriminatory impact and discriminatory intent

Question 50

Gender classifications benefiting women that are based on role stereotypes - OK?

Answer 50

not allowed

Question 51

Gender classifications that are designed to remedy past discrimination and differences in opportunity?

Answer 51

Will be allowed

Question 52

discrimination against noncitizen - scrutiny level

Answer 52

Generally - strict scrutiny IF discrimination concerns self-government and democratic process OR congressional discrimination - rational basis IF undocumented immigrant children - intermediate scrutiny

Question 53

discrimination against nonmarital children - scrutiny level

Answer 53

intermediate scrutiny

Question 54

Laws that deny a benefit to all non-marital children but grant it to all marital children - OK?

Answer 54

No, unconstituional

Question 55

age discrimination - level of scrutiny

Answer 55

rational basis

Question 56

disability discrimination - level of scrutiny

Answer 56

rational basis

Question 57

wealth discrimination - level of scrutiny

Answer 57

rational basis

Question 58

economic regulations - level of scrutiny

Answer 58

rational basis

Question 59

sexual orientation discrimination - level of scrutiny

Answer 59

rational basis

Question 60

discriminatory legislative apportionment - OK?

Answer 60

Race can be considered in drawing up new voting districts, but it cannot be the predominant factor.

Question 61

FEDERAL alienage classifications - level of scrutiny

Answer 61

rational basis