Constitutional Law - Due Process And Incorporation Of Part Of The Bill Of Rights

Front 1

Due Process - which Constitutional provisions relied on

Back 1

Bill of Rights: first 10 Amendments

If the federal government is discriminating, the Due Process Clause of the 5th Amendment should be invoked.

If the state government is discriminating, the Due Process Clause of the 14th Amendment should be invoked.

Front 2

Rights not asserted under 14th Amendment

Back 2

1. 5th Amendment - grand jury indictment
2. 7th Amendment - right to jury trial in civil case
3. 8th Amendment - excessive fines clause

Front 3

Limits on 14th Amendment Due Process Application

Back 3

1. Visitors:
--EP will not apply where states discriminate against people visiting
--> use article IV - Privileges and Immunities

2. Migrants:
--EP will not apply where states discriminate against people migrating to live in state
--> use article IV - Privileges and Immunities

Front 4

Due Process Clause

Back 4

Two types of DP:
1. substantive
2. procedural

Front 5

Procedural Due Process

Back 5

Protects people against the state depriving of life, liberty, or property.

Who qualifies:
1. all people
2. legal entities (corporations)

Front 6

Life, Liberty, and Property
(Procedural Due Process)

Back 6

1. Liberty: anything you want to do (e.g., bodily restraint, physical punishment)

2. Property: if state can take away for no reason, then no property interest
--General property interest in:
a) public education
b) public employment (government worker: tenure or termination for cause; at-will: no property interest)
c) welfare benefits
d) driver's license

3. Life: if government wants to kill you

Front 7

What process is due
(Procedural Due Process)

Back 7

1. adequate notice
2. adequate hearing

Three factors for adequacy:
1. importance of protected interest
2. risk of error (how likely government will commit error without procedure)
3. how much does it burden the government to provide the procedural protection

Front 8

Substantive Due Process

Back 8

Individual rights - Implied

Front 9

Economic Regulation
(Substantive Due Process)

Back 9

Substantive due process rights are not economic.

Economic regulation by the states or the federal government only has to meet rational basis review
(plaintiff's burden to show not rationally related to legitimate government interest)--includes under- and over-inclusive

Front 10

Fundamental Rights
(Substantive Due Process)

Back 10

Strict scrutiny.

Arises from privacy rights

Includes: (SCAMPRD)
Marriage, procreation, contraception, abortion, family relations, sexual orientation, right to die

Front 11

Abortion
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 11

Privacy interest in aborting before fetus is viable.

Regulations on pre-viability abortion cannot impose undue burden on the choice to abort.

Undue burden:
-total ban
-spousal consent
-spousal notification
-recording patient names
-parental consent with no judicial bypass

Not undue burden:
-parent consent with judicial bypass hearings
-24-hour waiting period
-truthful non-misleading information
-refusing public funds
-ban certain methods if not the safest

Life & Health Exception: abortions required to be available even after viability if to preserve the mother's life and health

Front 12

Family Relations
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 12

1. Federal cannot prohibit extended family from living in one house

2. State can ban unrelated persons from living together in a single-family residence

Front 13

Sexual Orientation
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 13

Homosexual sodomy: cannot criminalize same-sex sexual activity

BUT, only rational basis review

Front 14

Private Education
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 14

Government cannot stop parents from sending kids to private school

Front 15

Possessing Obscene Material
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 15

Right to possess obscene material in your home - no right to buy or have outside your home.

Exception: child pornography

Front 16

Right to Die
(Privacy)
(Fundamental Right - Substantive Due Process)

Back 16

Can refuse medical procedures, even if they are life-saving.

This is not a right to suicide or assisted suicide.

Front 17

Right to Travel
(Privileges & Immunities)
(Fundamental Right - Substantive Due Process)

Back 17

Allows every citizen free travel between states & to set up residency in a new state.

Exception: international travel
--Government can restrict for national security purposes

Front 18

Right to Vote - Applicable Amendments
(Fundamental Right - Substantive Due Process)

Back 18

Applicable Amendments:
1. 1st - right of association
2. 14th - applies to states
3. 15th - no race discrimination
4. 19th - no sex discrimination
5. 24th - no poll taxes in federal elections (14th applies to states)
6. 26th - no age discrimination

Front 19

Right to Vote - Rules
(Fundamental Right - Substantive Due Process)

Back 19

--if total ban: strict scrutiny
--if regulatory: important interest & no undue burden (balancing)

Constitutional - reasonable:
1. reasonable residency
2. registration
3. time and manner restrictions
4. denying felon right to vote (survives strict scrutiny)

Unconstitutional:
1. poll tax
2. limiting school board elections to parents and land owners
3. using vague or non-uniform standards to count
votes

Presidential Elections:
--state can decide how electors (electoral college) are picked

Front 20

Takings Clause

Back 20

5th Amendment: federal government cannot take private property for public use without just compensation.

Applies to states through 14th Amendment

Two types:
1. direct government appropriation
2. regulatory taking - regulation is so burdensome that effective is appropriation

Burdensome factors (balancing):
1. permanent physical invasion (minor doesn't matter)
2. depriving of all economic & beneficial use
3. economic benefit & character of taking interfere with the property