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What is PROCEDURAL DUE PROCESS?
The procedures a government must follow to take away someone's life, liberty, or proerty.
What is the TWO-STEP analysis that will determine whether a taking violated procedural due process?
1. Has there been a DEPRIVATION of life, liberty, OR property?
2. If and only if there has been a deprivation, ask, "What procedures must the government supply?"
What is the definition of a DEPRIVATION OF LIBERTY?
the loss of SIGNIFICANT freedom provided by the Constitution or a statute
What is the definition of a DEPRIVATION OF PROPERTY?
When an individual's entitlement to a property is not fulfiled.
An ENTITLEMENT is a REASONABLE expectation to the continued receipt of a benefit.
What is the mental state requirement for a deprivation of due process?
Generally, there must be INTENTIONAL GOVERNMENT ACTION or at least RECKLESS action for liability to exist. (Gross negligence is not enough.)
In emergency situations, the government is liable under ue process only if its conduct "SHOCKS THE CONSCIENCE."
Does the government's failure to protect people from privately inflicted harms deny due process?
How do you determine what procedures are required when it has been determined that there has been a deprivation of due process?
Three-part balancing test:
1. The importance of the interest to the individual: the more important the interest is to the person, the more procedural protection will be required.
2. The ability to ADDITIONAL procedures to increase the accuracy of the fact-finding (the more additional procedures will lead to better and more accurate decisions and reduced erroneous deprivation, the more likely they will be required).
3. The government's interests: usually EFFICIENCY and ECONOMY.
What procedures are required in the termination of WELFARE BENEFITS?
notice & hearing
What procedures are required in the termination of SOCIAL SECURITY DISABILITY BENEFITS?
only a post-termination hearing
What procedures are required in the permanent termination of a parent's right to CUSTODY?
noitce & hearing
What procedures are required before an adult can be institutionalized?
Except in an emergency, notice & hearing
Is harm to reputation a loss of liberty?
Not by itself.
Prisoners rarely have liberty interests. When they sue asserting a loss of liberty . . .
they almost always lose.
What are required in granting punitive damages?
JURY INSTRUCTIONS to guide the discretion of the jury
JUDICIAL REVIEW to ensure that any award is reasonable
What is the DUE PROCESS that a non-citizen enemy combatant is entitled to?
the ability to challenge their CONTINUED DETENTION
What DUE PROCESS is offered an American citizen facing criminal charges in a foreign country held by the US military?
He may file a habeas corpus petition and seek review of their detention in federal court.
When does due process require a judge's RECUSAL?
when there is a SUBSTANTIAL risk of ACTUAL BIAS
What DUE PROCESS rights are MINORS entitled to?
Minors are not entitled to the same constitutional rights as adults. The rights they DO have are subject to GREATER REGULATION.
However, a state cannot violate a PARENT'S right to RAISE their own children.
What is SUBSTANTIVE DUE PROCESS?
It determines whether the government has an adequate reason for taking away a person's life, liberty, or property.
What are the TWO areas in which SUBSTANTIVE DUE PROCESS is used?
1. Protection of economic liberties
2. Safeguarding property
What is substantive due process standard for economic liberties?
Rational basis test.
The Constitution provides only MINIMAL protection for economic liberties.
What is the TAKINGS CLAUSE of the Fifth Amendment?
The government may take private property for public use but only if it provides JUST COMPENSATION.
What is the test for the TAKINGS CLAUSE?
1. Is there a TAKING?
2. Is it for PUBLIC USE?
3. Is JUST COMPENSATION paid?
What are the TWO ways of finding a taking?
1. POSSESSORY taking: Government confiscation or physical occupation or property is ALWAYS a taking.
2. REGULATORY taking: Government regulation is a taking if it leaves NO REASONABLE ECONOMICALLY VIABLE use of the property.
What is the standard used to determine whether a government condition on the development of property is a taking?
Whether it has a BENEFIT that is roughly PROPORTIONATE to the BURDEN imposed.
If not, then it is a taking.
May a property owner bring a TAKINGS challenge to regulations that EXISTED at the time the property was aquired?
Is TEMPORARILY denying an owner use of property a taking?
Not so long as the government's action is REASONABLE.
When is a TAKING for PUBLIC USE?
So long as the government acts out of a REASONABLE belief that the taking will BENEFIT THE PUBLIC.
What is JUST COMPENSATION?
Just compensation is measured in terms of the loss to the owner in REASONABLE MARKET VALUE terms; the GAIN to the government is IRRELEVANT.
What is the CONTRACTS CLAUSE? Where is it found?
"No state shall impair the obligation of contracts."
Article 1, Section 10
Does the CONTRACTS CLAUSE apply to all contracts?
No, it applies only to STATE or LOCAL interference with ALREADY EXISTING contracts.
What level of scrutiny is used to determine whether state and local governments may interfere with existing private contracts?
What is the test?
"Does the legislation SUBSTANTIALLY IMPAIR a party's rights under an existing contract?"
"If so, is the law a REASONABLY AND NARROWLY TAILORED means of promiting an IMPORTANT AND LEGITIMATE public interest?"
What level of scrutiny is used to determine whether state and local goverments may interfere with GOVERNMENT CONTRACTS?
What is an EX POST FACTO law?
A law that criminallyl punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
What is the EX POST FACTO CLAUSE?
Neither the federal nor state government may adopt ex post facto laws.
Does the ex post facto clause apply to all cases?
No - it applies only to criminal cases.
What fundamental PRIVACY rights get STRICT SCRUTINY?
- Right to MARRY
- Right to PROCREATE
- Right to CUSTODY of children
- Right to keep FAMILY together
- Right to control RAISING of children
- Right to purchase and use CONTRACEPTIVES
What ABORTION rights do you have?
PRIOR TO VIABILITY, states CANNOT PROHIBIT abortions, but they may REGULATE them so long as they do not create an UNDUE BURDEN on the ability to OBTAIN abortions.
AFTER VIABILTY, states MAY prohibit aobrtions UNLESS NECESSARY to protect the woman's LIFE or HEALTH.
What are THREE examples of state regulations that are NOT an UNDUE BURDEN in the context of getting an abortion PRIOR to viability?
- Requirement for a 24 hour waiting period
- Requierment that abortions be performed by licensed physicians
- Prohibition of a partial birth abortions
Does the government have a duty to subsidized abortions or provide abortions in PUBLIC hospitals?
No. It is NEVER required to.
Are NOTICE or CONSENT law ever constitutional in the context of ABORTIONS?
SPOUSAL consent and notification laws are UNCONSTITUTIONAL.
However, PARENTAL notice and consent laws MAY be constitutional. A state may require parental notice and/or consent for an UNMARRIED minor's abortion so long as it creates an ALTERNATIVE procedure where a minor can obtain an abortion by going before a JUDGE who can approve the abortion by finding it would be in the minor's best interests OR that she is mature enough to decide for herself.
Do you have a right to engage in private consensual same-sex activity? If so, what is the scrutiny?
Yes - it is protected by the right to privacy.
However, the Courts did NOT articulate a level of scrutiny.
Describe the right to refuse medical treatment.
COMPETENT ADULTS have the right to refuse medical treatment, even life-saving medical treatment. There is no articulated level of scrutiny.
What limitations can the state impose on the right to refuse medical treatment?
A state has a COMPELLING interest in protecting the sanctity of life and MAY require CLEAR & CONVINCING evidence that a person wanted treatment terminated before it is ended.
A state may prevent FAMILY MEMBERS from terminating treatment for another.
Describe the right to physician-assisted suicide/death.
There is no such right.
What is the Right to Bear Arms?
Individuals have a right to have weapons for SELF-DEFENSE, but has NOT specified the level of scrutiny to be used.
What are durational residency requirements? Are they permissible?
It is the requirement that a person live in a jurisdiction for a specified amoutn of time to get a benefit.
They must meet STRICT SCRUTINY to be allowable.
Is there a fundamental right to INTERNATIONAL travel?
No. Restrictions need meet only the RATIONAL BASIS test.
For voting purposes, what is the maximum allowable durational requirement?
What are at-large elections? Are they constitutional?
It is where all voters cast a vote for all officeholders.
They are constitutional unless there is proof of a discriminatory purpose.
What THREE privacy rights are NOT fundamental rights? What type of scrutiny applies?
- Right to practice a trade or profession (rational basis)
- Right to physicial-assisted death (rational basis)
- Right to education (rational basis)
What are the THREE privacy rights for which the level of scrutiny is unknown?
- Right to engage in private consensual homosexual activity
- Righ tto refuse medical treatments
- Right to possess firearms
Is it constitutional to count uncounted votes without standards in a presidential election?
May RACE be used to draw election district lines?
Yes, for the purpose of benefitting MINORITIES. However, it must meet STRICT SCRUTINY.
True or False:
ALL state and local elections must meet one-person - one-vote requirements.
May laws deny some citizens the right to vote?
Yes, but it must meet strict scrutiny.