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What is meant by Procedural Due Process?
- The procedures the government must follow to take away someone's life, liberty, or property. The analytical steps are: |
- 1) Has there been a deprivation of life, liberty, or property? If yes, then . . .
- 2) What procedures are required?
When does a deprivation of life, liberty, or property occur?
- • Loss of a significant freedom provided by the Constitution or a statute
- • Loss of an entitlement of which a person has a reasonable expectation of receiving, or a reasonable expectation of continuing to receive
Does government negligence constitute a deprivation of life, liberty, or property?
- • Government negligence is generally insufficient to reach due process deprivation.
- • Generally, there must be intentional government action, or at least reckless action for a deprivation to occur
- • In emergency situations, need govt conduct that “shocks the conscience.” (e.g. high speed chase)
Would the government's failure to protect someone from a privately-inflicted harm constitute a procedural due process violation?
- Generally, the government's failure to protect someone from a privately-inflicted harm is not a procedural due process violation. EXCEPTION: govt created danger or the person is in govt custody
If there has been a deprivation, what kind of procedure must the government provide to satisfy procedural due process?
- The type of procedure needed depends on a 3-factor balancing test. Consider the following:|
- 1) Importance of the interest to the deprived individual, and
- 2) Whether additional procedures would provide better and more accurate decisions and reduce erroneous deprivation, and
- 3) The government's interest in efficiency and cost-savings
Examples of procedures designed to reduce erroneous deprivation
- a) Welfare benefits: Termination requires both notice and a hearing
- b) Social Security benefits: Termination requires only a post-termination hearing
- c) Parent's custodial rights over children: Termination requires both notice and a hearing
- d) Punitive damages: Requires jury instructions and judicial review
- e) Non-citizen held as enemy combatant: Ability to challenge continued detention
- f) US citizens facing criminal charges in a foreign country held by American Military: Habeas corpus petition and judicial review of detention in federal court
- g) Risk of actual judicial bias: Requires recusal of the actually biased judge
What is Substantive Due Process?
Substantive Due Process asks whether the government has an adequate reason for taking away a person's life, liberty, or property.
What 2 areas receive the most focus in Substantive Due Process?
- 1) Protection of economic liberties (though only minimal protection afforded; rational basis test), and
- 2) Safeguarding property
WHAT is the test for a Fifth Amendment Taking?
- 1) Is there a taking of private property? (Possessory or regulatory)
- 2) Was it for public use? (If no, Govt must return property)
- 3) Was there payment of just compensation? (Must be reasonable market value)
WHEN does a Fifth Amendment Takings occur?
- Possessory taking:
- Government confiscates or physically occupies physical property (no matter how minimal the physical occupation (e.g., cable TV wires is a Fifth Am. Taking)) |
- Regulatory taking:
- Government regulation leave no reasonably economically viable use of the property (Penn Central. Held: no taking, because owner could still derive economic use from RR and ground-level retail)
Does a temporary denial of property use rise to the level of a Fifth Amendment Taking?
- NO, temporarily denying an owner use of his/her property is not a taking so long as the government's action is reasonable. 2-part test: |
- 1) Public use: Is it for "public use"? (broadly construed), and if so—
- 2) Just compensation: Is just compensation paid? Just compensation is measured in terms of loss to the owner in reasonable market value terms; gain to the government is irrelevant.
When can a state or local government interfere with an existing private contract?
- • When the legislation does NOT SUBSTANTIALLY IMPAIR a party's rights under the contract, OR
- • the law is a REASONABLE and NARROWLY TAILORED MEANS to promoting an IMPORTANT and LEGITIMATE public interest
Can a state or local government interfere with a government contract?
NO, unless the interference passes strict scrutiny (compelling interests, least restrictive means)
The Constitution prohibits both the federal and state governments from adopting ex post facto laws. This means that neither the federal nor state governments can adopt laws that . . .
- a) Criminally punish conduct that was lawful when it was done, OR
- b) Increase punishment for a crime after it was committed|
- Note that the prohibition against ex post facto laws applies only to criminal cases—the prohibition does not apply to civil cases
When the government interferes with a person's Privacy Rights, what level of judicial review is applied?
- Strict scrutiny (i.e., compelling interest, least restrictive means)|
- Exam tip—on the MBE, the best answer is that the government must meet strict scrutiny in order to interfere with a person's right to privacy (it won't necessarily be the case that the government should automatically lose)
What rights are protected by a person's Right to Privacy?
- Custody of one's children
- Keep "family" together
- Control and upbringing of one's children
- Purchase and use contraceptives
- Abortion (see separate card)
- Private consensual same-sex activity
- Refuse medical treatment (see separate card)
- Travel across state lines (see separate card)
- Vote (see separate card)
- Note: not all of these are subject to strict scrutiny
What rights to an abortion does a woman have prior to viability of the fetus?
- Prior to viability a state . . .
- Cannot prohibit abortions. May regulate abortions, so long as doing so presents no undue burden on the ability to obtain an abortion.
- The prohibition of “partial birth abortions” is not an undue burden
What rights to an abortion does a woman have AFTER viability of the fetus?
After the fetus has become viable, a state may prohibit abortions to protect the woman's life or health
Is the government required to subsidize abortions or to provide abortions in public hospitals?
Are notice and consent laws for abortions constitutional?
- 1) Spousal consent and notification laws are always unconstitutional
- 2) Parental notice and consent laws for unmarried minors may be constitutional, so long as the state creates an alternative judicial procedure
Although a person has a right to refuse medical treatment, what limits can a state impose on the exercise of that right?
- • Competent adults have the right to refuse medical treatment, even life-saving medical treatment
- • Can require clear and convincing evidence that a person wants treatment terminated
- • May prevent family members from terminating treatment of another
- • May prohibit physician-assisted suicide (there is no constitutional right to this)
Limitations imposed on a person's Right to Travel are reviewed with strict scrutiny. What sorts of actions come within the right to travel (and are therefore subject to strict scrutiny)?
- • Law that prevent a person from moving into or between states
- • Durational requirements precedent to receiving in-state benefits (exam tip on voting–50 days is the maximum allowable durational requirement)
- • NB: There is no fundamental right to international travel (need only satisfy rational basis)
The right to vote is a fundamental right. What level of scrutiny is used to review limitations on that right?
- Strict scrutiny must be met if a law denies some citizens the right to vote. Note— |
- 1) One-person-one-vote
- 2) At-large elections are constitutional unless there is proof of a discriminatory purpose (not just impact)
- 3) Use of race in drawing electoral districts must meet strict scrutiny
- 4) Counting uncounted votes without standards in a presidential election violates equal protection
Is education a fundamental right?
NO, there is no fundamental right to education under Equal Protection or the US Constitution
Is there a fundamental right to practice a trade or profession?
NO. This is not a fundamental right under Equal Protection or the US Constitution.