Vi. Due Process (14Th Amendment States, 5Th Amendment Fed) I.

Front 1

Slaughterhouse cases - Substantive v. Procedural

Back 1

Miller- Procedural
Bradley- Substantive

Front 2

Procedural Due Process

Back 2

Historical application, the procedures that must be followed before government deprives people of life, liberty or property.

Front 3

Substantive due process

Back 3

Whether the government has an adequate reason for taking away a person's life, liberty or property. Is there enough justification?

Front 4

Substantive de process analysis (4 factors)

Back 4

Define: rights under life,liberty, property
How badly does law infringe on these liberties
What is the state's reason for infringement
Is there a correlation between reason for infringement and rights impacted?

Front 5

Distinguished: Punitive damage awards

Back 5

Procedural due process- safeguards like instructions to the jury, judicial review
Substantive Due process: prevents excessive punitive damage awards regardless of procedures

Front 6

Rise and fall of Lochner Doctrine

Back 6

Early historical evolution of SDP

Front 7

Lochner v. NY

Back 7

NY passes state law prohibiting bakers from working more than 60 hours a week. SCOTUS overturns law as infringement on the right to k and therefore liberty

SCOTUS says reevaluation is heart of SDP.

Front 8

Lochner Doctrine

Back 8

A doctrine of SDP that narrowly was a doctrine of economic laissez faire

Front 9

Progressive era thru 1937

Back 9

Big read on 14th amendment due process, small read on commerce clause in therms of federal power. SCOTUS had little interest in econ regulation and labor. States held in chains because they can't pass econ regulation that has a social impact

Front 10

Reasonableness and rationality are seen as (low/high) tier in progressive era thru 1937

Back 10

extremely high
(currently, very low)

Front 11

Three principals from Lochner Era

Back 11

Freedom of K is a basic right under the 14th
Government can only interfere with freedom of K if it serves a valid police purpose
Judicial role to carefully scrutinize legislation interfering with freedom of contract to ensure it serves a valid police purpose

Front 12

West Coast Hotel v. Parrish

Back 12

WA statute setting minimum wage for women and minors is CONSTITUTIONAL. Freedom of K no longer a constitutional protection. Constitution is concerned with liberty and it's deprivation without DP. Regulation which is reasonable in relation to its subject and is adopted in interests of community is due process

Front 13

Carolene Products

Back 13

Famous footnote 4 - Economic regulations should be upheld so long as they are supported by a conceivable rational basis, evne if it can't be proved that it was legislature's actual intent.
SCOTUS will defer and uphold laws as long as they are reasonable
Will not extend to laws interfering with FUNDAMENTAL RIGHTS OR LAWS RESTRICTING THE ABILITY OF THE POLITICAL PROCESS TO REPEAL BAD LEGISLATION OR LAWS DISCRIMINATING AGAINST DISCRETE AND INSULAR MINORITIES

These rights have a higher hurdle and standard because they are liberties that are a t the basis of the democratic process

Front 14

Meyer v. Nebraska

Back 14

WWI statute prohibiting classes taught in foreign languages is unconstitutional. Read on DPC? SCOTUS only talks about liberty to instruct in german and property rights to profession?

Front 15

Pierce v. Society of Sisters

Back 15

State law requiring normal students 8-16 to attend public school is unconstitutional because it unreasonably interferes with liberty of parents and property of schools

Front 16

CHART ON P 40

Back 16

BLANK FILL IN

Front 17

Equal protection as an Alternative to Substantive due process for protecting fundamental Rights: The "_____"

Back 17

Skinner approach

Front 18

Equal Protection

Back 18

Focuses on whether the goverments difference in treating people is justified by an adequate purpose?
-Relief sought may help distinguish
Example: Government recognizes child custody is a fundamental right
PDP- must be notice before a child is taken away
SDP - Must be a sufficient jusification (Abuse and neglect)
EP- Everyone similarly sityated must be treated the same

Front 19

Most fundamental rights are protected by:

Back 19

BOTH DP and EP
Difference is how protections are phrased
DP - whether goverment's interference is JUSTIFIED by sufficient purpose
If a law applies to everyone, attack with DP
EP: whether goverment's discrimination as to who can exercise the right is justified by a sufficient purpose
If a law denies a right to some, allows it to others EP and/or DP can be used

Front 20

Fundamental right analysis

Back 20

Is there a fundamental right?
Is the right infringed?
Is government action justified by a sufficient purpose?
Are the means sufficiently related to the goal sought?

Front 21

Korematsu

Back 21

Racial classifications are immediately suspect and subject to strictest scrutiny? In this case, high tier is strict in theory, fatal in fact.
Court starts to develop high tier review for discrimination against groups

Front 22

Skinner v. Oklahoma

Back 22

Ok statute imposes sterilization on offenders who repeat crimes of moral turpitude.
Still a violation of a fundamental right so unconstitutional

Right to reproduce was fundamental, classification that interferes with the fundamental right, so high tier should be used.

Front 23

Skinner equation

Back 23

non-suspect classification impacting negatively on a fundamental right= high tier review

Front 24

Substantive due process protection beyond bill of rights: Doctrinal debate begins

Back 24

Libs struggle with own jurisprudence, can't define liberty

Front 25

Griswold v. Connecticut

Back 25

CT's law banning use fo contraceptives is unconstatutional violation of a fundamental right to privacy. Douglass says specific guarantees in bill of rights have penumbras formed by emanations from those guarantees. 1st, 2, 4, 5, and 9 th all have penumbras where privacy is protected from government intrusion

Front 26

Roe v. Wade

Back 26

Individuals have 14th amendment and BOR penumbra right to sexual privacy. Not absolute and is subject to state regulation but there's no compelling state interest in forbidding all abortions.

Front 27

Bowers v. Hardwick

Back 27

SODOMY
The constitution should protect only rights as fundamental only if they are supported by the constitution's text
Sodomy is not a fundamental right based on the constitution)
Conservative move
1. Define right narrowly 2. See if it's supported in history/traditions

Front 28

Fundamental rights under SDP and EP

Back 28

Right to Procreate
Right NOT to procreate
(contraceptives, abortion)
Right to Marry
Sexual Preference
Right to die

Front 29

Skinner

Back 29

Right to procreate

Front 30

Griswold

Back 30

Right not to procreate
unconstitutionality of anticontraceptive lalw was rooted in constitutional right of privacy founded in marriage

Front 31

Eisenstadt v. Baird

Back 31

MA law that permitted contraceptive use by married coupled but prohibited sales to single people violated equal protection,
If privacy means anything it is the right to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether or not to bear a child
skinner analysis! (married v. Unmarried = not a suspect class

Front 32

Roe v. Wade

Back 32

Right to abortion is not absolute because it must be balanced against other considerations such as the state's interest in protecting prenatal life. Strict scrutiny should be used in employing the balancing test because abortion is a FUNDAMENTAL right

Front 33

Planned Parenthood v. Casey

Back 33

Roe should not be overruled because of stare decisis. Test based on o'connor is whether or not it places undue burden on access to abortion. (intermediate tier?)

Front 34

Gonzalez v. Carhart

Back 34

Ban on partial birth abortion doesn't impose an undue burden on women's right to abortion

Front 35

Loving v. Virginia

Back 35

Right to marry is fundamental. Laws prohibiting couples from getting married deprives citizens of liberty without due process of law.

Front 36

Zablocki v. Redhail

Back 36

WI statute says that individuals with minor children not in his/her custody must receive court permission to obtain license to marry to ensure all child support payments are up to date
If fundamental right to procreate means anything, it must imply some right to enter into the only legally recognized venue for sex!
Sate has substantial interest in child support being paid, but this isn't narrowly enough tailored.

Front 37

Bowers v. Hardwick

Back 37

right of privacy does not protect right to sodimize (sex linked to reproduction) as fundamental right. not deeply rooted in history or implict in ordered liberty

Front 38

Romer v. Evans

Back 38

Jennedy toyed with language to suggest that gays were suspect class or could be moved up to intermediate tier

Front 39

Lawrence v Texas

Back 39

Overrules Bowers. Constitution extends to individuals in most intimate and private aspects of their life. To define a right as a right to engage in sex demeans both claim and right.
Powerful affirmation of right of privacy under constitution
Recognizes that sex is fundamental aspect of personhood

Front 40

US v. Windsor

Back 40

U.S. federal interpretation of "marriage" and "spouse" to apply only to heterosexual unions, by Section 3 of the Defense of Marriage Act (DOMA), is unconstitutional under the Due Process Clause of the Fifth Amendment. applied unfairly against other similarly situated couples

Front 41

Cruzan v. Missouri

Back 41

Nancy Cruzan was in persistent vegetable state. Parents wanted to terminate food and water, state wouldn't permit.
Court decides competent adults have constitutional right to refuse medical care, including food and water

Doesn't say what tier

Front 42

Washington v. Glucksberg

Back 42

No constitutional DP right to physician assisted suicide

Front 43

Vacco v. Quill

Back 43

No constitutional right EP right to physician assisted suicide.
EP doesn't discriminate. EVERYONE is prohibited.
Right only fundamental when supported by history or tradition?

Front 44

Gonzalez v. Oregon

Back 44

The United States Attorney General could not enforce the federal Controlled Substances Act against physicians who prescribed drugs, in compliance with Oregon state law, for the assisted suicide of the terminally ill.