Con Law: Individual Rights

Front 1

Individual Rights

Back 1

Procedural Due Process, Substantive Due Process and Equal Protection

Front 2

Procedural Due Process

Back 2

The procedures one must follow when taking life, liberty or property.

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What is a deprivation of life, liberty or property

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A deprivation of liberty occurs if there is the loss of a significant freedom provided by the constitution or a statute (usually involves violation of con law rights). A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.

Front 4

Government negligence and due process

Back 4

Government negligence is not sufficient for a depirvation of due process. There must be intentional government action at least reckless action for liability to exist.

Front 5

Due process deprivation in emergency situations

Back 5

In emergency situations, the government is liable under due process only if conduct "shocks the conscience."

Front 6

privately inflicted harms and due process

Back 6

Generally, overnment failure to protect peple from privately inflicted harms does not deny due process. Only if Govt creates danger to a person in govt custody does a duty to protect become imposed.

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What procedures are required?

Back 7

Balance the importance of the interest to the individual. The ability of additional procedures to increase the accuracy of the fact finding and the government's interests.

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Examples of Procedural Due Process issues

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1) There must be notice and a hearing before welfare benefits can be terminated. 2) If SSID benefits are terminated there is only a post termination hearing.3) For punishment in public schools there has to be notice of charges and opportunity to explain. (Corporal punishment does not require due process). 4) Before a parent's right to custody of a child is permanently terminated there must be notice and a hearing. 5) Punitive damages require jury instructions and judicial review. 6) American citizens held as enemy combatants must be given due process. 7) Except in exigent circumstances prejudgment attachment or seizure under performance has to be proceded by notice and a hearing.

Front 9

Economic liberties

Back 9

Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.

Front 10

Takings clause

Back 10

The Government may take private property for public use if it provides just compensation. Possessory taking - Govenrment confiscation or physical occupation of property is a taking. Regulatory taking - Givenrment regulation is a taking if it leaves no reasonable economically viable use of the property. NOT a taking simply because it decreases value.

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Notes on takings

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Govt conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking. A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. Temporarily denying an owner use of property is not a taking so long as the govt's action is reasonable. (3 year amoritorium on development to conduct environmentla study not a taking).

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Steps to analyzing takings

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1) Is there a taking 2) Is it for Public Use 3) Is just compensation paid?

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Is it for publis use?

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A taking is for public use so long as government acts with a reasonable belief that it will benefit the public. If it is not for public use then it must be given back.

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Just compensation

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Measured in terms of loss to the owner of reasonable Fair market value.

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Contracts Clause

Back 15

No state shall impair the obligations of contracts. Applies only to state or local interference with existing contracts.

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Scrutiny under the contracts clause

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1) State or local interference with private contracts must meet intermediate scrutiny (does the legislation substantially impair a party's rights under an existing contract? If so is the law reasonably and narrowly tailoed means of promoting an important and legitimate public interest). 2) State or local interference with government contracts must meet strict scrutiny.

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The ex-post factor clause

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does not apply in civil cases. Retroactive civil liability only need meet a rational basis test.

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Privacy

Back 18

Fundamental right protected under susbtantive due process. 1) Right to marry 2) Right to procreate 3) The right to custody of one's children 4) right to keep one's family together 5) Right to control the upbringing of one's children 6) The right to purchase and use contraceptives 7) The right to abortion

Front 19

Right to marry

Back 19

Heterosexual marriage - government action must meet strict scrutiny.

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Right to the custody of one's children

Back 20

Permanent termination is subject to strict scrutiny. State may create an irrebutable presumption that a woman's husband is the father of her child.

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Right to keep the family together

Back 21

Includes extended families, but they must be relatives.

Front 22

Right to control the upbringing of one's children.

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Must meet strict scrutiny to interfere with parental decisions.

Front 23

The right to abortion

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Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, state can prohibit abortions unless necessary to protect the woman's life or health.

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Examples of abortion regulation vs undue burden

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1) 24 hour waiting period is not an undue burden 2) Requirement that abortions be performed by licensed physicians is not an undue burden. 3) Prohibiting "partial birth abortions" not an undue burden. The government has no duty to subsidize abortions or provide abortions in public hospitals. Spousal consent and notification laws are unconstitutional.

Front 25

Parental consent and abortion

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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 interest or that she is mature enough to decide for herself.

Front 26

Right of privacy and homosexual activity

Back 26

Protects a right to engage in private consensual homosexual activity.

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Right to refuse medical treatment

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1) Competent adults have the right to refuse medical treatment, even life saving medical treatment. 2) A state may require clear and convincing evidence that a person wanted treatment terminated befire it is ended. 3) A state may prevent family members from terminating treatment for another. There is NOT a right to physician-assisted death.

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2nd Amendment right to bear arms

Back 28

There is a right of individuals to have guns in their homes for purposes of militia service. The state can regulate who has guns.

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The right to travel

Back 29

Laws that prevent people from moving into a state must meet strict scrutiny. Durational residency requirements must meet strict scrutiny. Restrictions on foreign travel need meet only the rational basis test.

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The right to vote

Back 30

Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable.

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One person one vote

Back 31

One person one vote must be met for all state and local elections. For any elected body all districts need to be about equal in population.

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At large elections

Back 32

At large elections are constitutional unless there is proof of a discriminatory purpose.

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Drawing election district lines

Back 33

The use of race in drawing elections district lines for the benefit of minorities must meet strict scrutiny.

Front 34

Vote counting

Back 34

Counting uncounted votes without standards in a presidential election violates equal protection.

Front 35

Right to education

Back 35

There is no fundamental right to education