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Flashcards in Substantive Due Process Deck (16):
1

How to apply Due Process to State action:

CTs have used 14th (which applies to states) to incorporate the Bill of Rights.
(Malloy: Scope of that guarantee is same for States as Fed.)

Still not incorporated-
Right to:
1) Indictment by a grand jury, (5th)
2) Jury trial in civil lawsuits, (7th) &
3) Excessive fines. (8th)

2

What Gov action is protected against under the 14th:

(3)

1) Due Process,
2) Equal Protection of the laws, &
3) Privileges & Immunities of National Citizens.

3

When can Private Action be reviewed for violating the Constitution:

13th: Ban on slavery & Enforcement Power:

4

Under 14th Due Process:
What hidden rights are "Fundamental"
& Strictly Scrutinized:

(5)

Life, Liberty, & Property.

1) Right to autonomous family life.
2) Right to birth control & some abortion.
3) Right to decline medical treatment.
4) Right to continued benefits.
5) Right to practice a profession.

5

How are (Non-Fundamental) Economic regulations reviewed under Due Process:

Mere Rationality:
Not arbitrary and capricious.

(Lee Optical)
1) Minimal review:
State laws regulating business get rational basis review.
2) Any Conceivable Reason:
Court need not contemplate all possible reasons for legislation.

(Essentially ended Lochner era and use of economic substantive due process.)

6

How does Due Process apply to Social Welfare regulations motivated by hostility to an unpopular group:
(Non-Fundamental)

Morality based Gov Action gets heightened Rational Review: "with bite"

(Lawrence v Texas: Gay sex is NOT fund right- BUT- intimate consensual sexual relationships between adults are protected by 14th.)

7

How does 14th carve out Fundamental Rights not included in the constitution:

CT interprets the 5th as creating a "penumbra" of rights.

The "Zone of Privacy" protects autonomy to make decisions about highly personal matters.

8

Fund Right to Decline Medical Treatment:

Competent adults have right to refuse medical treatment.

If NOT competent:
(Cruzan: Vegetative state- "Clear and convincing evidence" is needed.)

Today: Living Will/Healthcare Proxy
State has legitimate interest in preserving life.

9

NO right to die:
Administering lethal dose of medication.

May not recruit a 3rd person to assist in suicide.

(Glucksberg: NO liberty interest in suicide.)
No historical support + State's interest in preserving life outweigh patient's wishes.

Concurrence: What if using pain killers to manage pain becomes lethal?

10

What are the Fund Rights a family has:

1) Right to Marry.
(Zablocki: Cannot deny marriage because late on child support.)

2) Right to live together.
(Moore v East Cleveland: City may not prevent first cousins from living together.)

3) Education.
(Pierce v Soc of Sisters: parents determine how to educate their children.)

4) Parenting.
(Troxel v Granville: NO grandparent visitation right w/out weighing parental objection.)

11

Fund Right to birth control:

Griswold: Cannot prohibit distribution of contraceptives to adults.

Eisenstadt:
1) Not rationally Related: To deterring premarital sex - by excluding singles.
2) Health objective: Discriminatory and Over broad.
3) Right to obtain contraceptives must be same for married and unmarried.

12

What are Rights and Limitations on Abortion:

No longer Fundamental Right:
Woman has right to pre-viability abortion. BUT State has interest in protecting potential life.

-State MAY regulate abortion.
-(Rust: MAY deny funding to clinic if docs recommend abortion.)
-NO right to ban ALL pre-viable abortion.
-NO "undue burden"= substantial obstacle to mother obtaining pre-viablity abortion.

Undue Burden:
-(Danford: NO spousal veto or notification req.)
-Under 18: May req parental consent- but entitled to "judicial bypass"= if she proves in her best interest, sufficiently mature OR emancipated- MUST allow abortion.

NOT undue burden:
-(PP v Casey: 24 hour waiting period- despite long distance.)
-(Gonzales v Carhart: Partial-Birth- Strong deference given to Congress study showing mother's health never requires PB abortion- despite evidence to the contrary.)

13

How to determine if someone has a Property interest in Continued Gov Benefits:

(Goldberg v Kelly: Welfare Pre-termination hearing req to prevent depriving eligible recipients of means to live.)

Mathews v Eldridge: 3 Factors
1) Importance of interest to individual;
2) Additional procedures that might reduce risk of erroneous deprivation;
3) Costs, burden & of the additional process v gov efficiency.
(Dist. Kelly: decision to discontinue SSD benefits will turn on unbiased medical reports - questionnaire was sufficient here in place of hearing.)

14

What case asserted the notion of looking outside the const to define fundamental rights and then imbed them into the const.

Calder v Bull:

Right of property is natural law and Fed gov shouldn't impede on that.

15

How to determine if someone has a property right in their Employment:

Entitlement:
New Applicants = NO property right.
"at will"employees = NO property right.

Tenured Gov employees:
(B o Regents v Ross: NOT if employment K limited to 1 year.)
(Perry v Sindermann: Guidelines and practices + length of employment MAY be sufficiently prove “entitlement.”)
(Cleveland B o Ed v Loudermill: Notice of charges & may present evidence - But - NO full hearing w/ counsel. - Gov has interest in firing unsatisfactory employees quickly.)

16

2nd: Rights and Limitations on Gun Control:

What type of review will CTs most likely use:

Test: "Substantially Related" to "Important gov interest":

1) Heller: Right to keep basic "operable" (loaded) firearms at home for self defense.

2) McDonald: incorporated into 14th to apply to states.)

3) Regulations and Licensing reqs OK:
Must be level of weapon individuals had in their homes in 1791.)
-They didn't have military weapons.
-Not burdensome.
-Leg interest in keeping out of wrong hands.