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20 Cards in this Set
- Front
- Back
Due Process - which Constitutional provisions relied on
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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. |
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Rights not asserted under 14th Amendment
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1. 5th Amendment - grand jury indictment
2. 7th Amendment - right to jury trial in civil case 3. 8th Amendment - excessive fines clause |
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Limits on 14th Amendment Due Process Application
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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 |
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Due Process Clause
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Two types of DP:
1. substantive 2. procedural |
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Procedural Due Process
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Protects people against the state depriving of life, liberty, or property.
Who qualifies: 1. all people 2. legal entities (corporations) |
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Life, Liberty, and Property
(Procedural Due Process) |
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 |
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What process is due
(Procedural Due Process) |
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 |
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Substantive Due Process
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Individual rights - Implied
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Economic Regulation
(Substantive Due Process) |
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 |
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Fundamental Rights
(Substantive Due Process) |
Strict scrutiny.
Arises from privacy rights Includes: (SCAMPRD) Marriage, procreation, contraception, abortion, family relations, sexual orientation, right to die |
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Abortion
(Privacy) (Fundamental Right - Substantive Due Process) |
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 |
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Family Relations
(Privacy) (Fundamental Right - Substantive Due Process) |
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 |
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Sexual Orientation
(Privacy) (Fundamental Right - Substantive Due Process) |
Homosexual sodomy: cannot criminalize same-sex sexual activity
BUT, only rational basis review |
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Private Education
(Privacy) (Fundamental Right - Substantive Due Process) |
Government cannot stop parents from sending kids to private school
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Possessing Obscene Material
(Privacy) (Fundamental Right - Substantive Due Process) |
Right to possess obscene material in your home - no right to buy or have outside your home.
Exception: child pornography |
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Right to Die
(Privacy) (Fundamental Right - Substantive Due Process) |
Can refuse medical procedures, even if they are life-saving.
This is not a right to suicide or assisted suicide. |
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Right to Travel
(Privileges & Immunities) (Fundamental Right - Substantive Due Process) |
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 |
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Right to Vote - Applicable Amendments
(Fundamental Right - Substantive Due Process) |
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 |
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Right to Vote - Rules
(Fundamental Right - Substantive Due Process) |
--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 |
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Takings Clause
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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 |