Constitutional Law - Due Process & Equal Protection

Front 1

Procedural DP, Substantive DP, & EP: Focus on what P is seeking (procedures / adequate justification for infringement of rights / treatment compared to others sim situated)

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1. Procedural DP – procedures (notice & hearing) govt must follow when it takes away someone’s life, liberty or property.
2. Substantive DP – whether govt has adequate reason (justification) for taking away someone’s life, liberty or property.
3. Equal Protection – whether govt’s differences in the treatment of people are adequately justified.

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PROCEDURAL DUE PROCESS

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Procedures (notice & hearing) govt must follow when it takes away someone’s life, liberty or property.

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Procedural DP Requires: deprivation of life, liberty, or property

- DEPRIVATION OF LIBERTY:

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- Loss of a significant freedom provided by Const or statute – written law
a. Before a person can be institutionalized, there must be notice & hearing (except in emergency)
b. When a parent institutionalizes a child, there only has to be a screening by a neutral fact finder.
c. Harm to reputation by itself is not a loss of liberty.
d. Prisoners rarely have liberty interests.

Front 4

Procedural DP
- Deprivation of Property:

Back 4

- If a person has an entitlement (reasonable expectation to continue to receive a benefit) and that entitlement is not fulfilled

Front 5

Procedural DP
- Government Negligence NOT sufficient for deprivation of DP

Back 5

Need intentional govt action/reckless action for liability to exist.
BUT in emergency situations, govt is liable under DP only if its conduct “shocks the conscious.”

Front 6

Procedural DP
- Govt’s failure to protect ppl from privately inflicted harms does not deny DP.

Back 6

Only has duty if govt creates the danger (person in govt custody)

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Procedural DP
- What procedures are required? 3-Part Balancing Test:

Back 7

a. Importance of the interest to the individual
b. Ability of add’n’l procedures to increase accuracy of the fact-finding
c. Gov’t’s interests

Front 8

Procedural DP
- Examples of procedures required:

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a. Before welfare benefit’s can be terminated, there must be notice and a hearing
b. When social security disability benefits are terminated, there need only be a post-termination hearing
c. When a student disciplined by a public school, there must be notice of the charges and an opportunity to explain (but no hearing). Corporal punishment in schools does NOT require any DP.

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Procedural DP
- More examples of procedures required:

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d. Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing.
e. Punitive damages require instructions to the jury and judicial review. Grossly excessive punitive damages violate DP.
f. U.S. citizen detained as an enemy combatant must be given DP.
g. Except in exigent circumstances, prejudgment attachment or govt seizure of assets must be preceded by notice and a hearing – govt may seize property used in illegal activity even if it has an innocent owner

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ECONOMIC LIBERTIES

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Constitution provides only minimal protection for economic liberties.
- rational basis test used for laws affecting economic rights

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Economic Liberties:
- Takings Clause – (5th A.)

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Govt may TAKE private property for PUBLIC USE if it provides JUST COMPENSATION

Front 12

Economic Liberties:
- Takings Clause - Is there a TAKING?

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- Possessory taking – govt confiscation or physical occupation of property is a taking
- Regulatory taking – govt regulation is a taking if it leaves no reasonable economically viable use of the property
i. Govt conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise is a taking
ii. Property owner may bring a takings challenge to regs that existed at the time property was acquired.
iii. Temporarily denying an owner use of property is not a taking so long as gov’t’s action is reasonable.

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Economic Liberties:
- Takings Clause - Is it for PUBLIC USE?

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Govt may take private property but only for public use (broadly defined by SC --> govt acts out of a reasonable belief that the taking will benefit the public

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Economic Liberties:
- Takings Clause - Is it JUST COMPENSATION?

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- Govt may take private property for public use as long as there is just compensation (measured in terms of loss to the owner in reasonable market value terms; gain to govt is irrelevant).

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Contracts Clause – prevents state impairment of all K rights relating to existing Ks

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1. Applies only to state or local interference with already existing Ks.
2. State/local govt interference with PRIVATE Ks --> intermed scrutiny:
3. State/local govt interference with GOVT Ks --> strict scrutiny.

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Ex Post Facto Clause

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= law that criminally publishes conduct that was lawful when it was done or that increases punishment for crime after it was committed.
- Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs punishment of a specific person or persons w/o trial).

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PRIVACY is a Fundamental Right protected under SUBSTANTIVE DUE PROCESS

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“CAMPER”
Contraception, Abortion, Marriage, Procreation, Education control (NO right to education but right to control the education of your kids), Relations of Family

PLUS: Custody, Refuse Med Treatment, Private Homosexual Activity

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Second Amendment Right to Bear Arms

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Protects right of individuals to keep firearms for self protection and not just for militia service.
- SC did not indicate kind of scrutiny.
- Not an absolute right – govt can keep ppl from having guns in airports, schools, and prior felons

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Right to Travel

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- Laws that prevent ppl from moving into a state must meet strict scrutiny.
- Durational residency requirements must meet strict scrutiny.
- For voting, 50 days is the max allowable durational req.
- Restrictions on foreign travel need meet only the rational basis test.

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Right to Vote

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- Laws that deny some citizens the right to vote must meet strict scrutiny.
- Regs to prevent fraud of the electoral process only need be on balance desirable
- One person – one vote must be met for all state and local elections (all districts must be about equal in pop)
- At-large elections are const unless there is proof of a discrim purpose
- The use of race in drawing election district lines must meet strict scrutiny
- Counting uncounted votes w/o standards in a pres election violates EP.

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EQUAL PROTECTION Cl of 14th A. (prohibits states from denying any person the EP of the law)
- WHEN APPLICABLE?

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- Applies ONLY WHEN THERE
IS STATE OR LOCAL GOVT ACTION
(EP is applied to the fed govt through the DP clause
of the 5th A.)

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EPC:
If the law is facially neutral, proving a suspect classification requires:

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Demonstrating BOTH discriminatory IMPACT and discriminatory INTENT (impact alone is insufficient)

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EPC:
Race and National Origin Classifications - Level of Scrutiny & Existence of a racial classification proven when:

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Applies Strict Scrutiny
1. Classification exists on the face of the law
2. If the law is facially neutral, proving racial classification requires demonstrating BOTH discriminatory IMPACT and discriminatory INTENT

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EPC:
How should racial classifications benefiting minorities be used?

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a. Strict scrutiny is applied
b. Numerical set-asides require clear proof of past discrimination
c. Educational institutions may use race as one factor in admissions decisions to help minorities
i. Colleges may use race as A factor in admissions decisions but cannot set aside slots just for minority students, and cannot add points to applicant’s admissions scores just on basis of race)
d. Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met

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EPC:
Gender Classifications - Level of Scrutiny & Existence of a gender classification proven when:

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Intermediate Scrutiny used PLUS an exceedingly persuasive justification
1. Classification exists on face of the law
2. If the law is facially neutral, proving a gender classification requires demonstrating BOTH discriminatory IMPACT and discriminatory INTENT

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EPC:
How should gender classifications benefiting women be treated?

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Gender Classifications:
- Benefiting women that are based on role stereotypes - not allowed
- Designed to rem past discrim & differences in opportunity - allowed

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EPC:
Alienage Classifications (laws that discriminate against non-US citizens) - Level of Scrutiny

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- Gen, strict scrutiny is used.
- Only a rational basis test used for alienage classifications that concern self-govt & the democratic process
--> Govt may discrim against NCs with regard to voting, serving on a jury, being a police officer, a teacher, or a probation officer.
- Only a rational basis test is used for Congressional discrim against aliens. Congress has plenary power to decide immigration issues

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EPC:
Discrimination against Non-Marital Children (“Legitimacy Classifications”) - Level of Scrutiny

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- Intermediate scrutiny is used.
- Laws that deny a benefit to all non-marital children, but grant it to all marital children, are unconstitutional.

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EPC:
Rational Basis Review used for All Other Types of Discrimination under the Constitution

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i. Age discrimination
ii. Disability discrimination
iii. Wealth discrimination (discrimination against the poor gets only rational basis review)
iv. Economic regulations
v. Sexual orientation discrimination