Con Law (Two) Outline
Life, liberty, and property w/o due process of law
Test to determine liberty int/ prop int:
Liberty int: test = enumerated rts in bill of rts and those rts that are incorporated(selective incorporation) into bill of rts (only applies to strictly fed laws)
(i.e. marital, family, parental, privacy——-not rt to vote, speech)
Property int: test = legitimate claim of entitlement
(i.e. welfare benefits, employment for cause—–not for will)
other liberties
economic: int in prop., k rts, bus/employment rts (not fund rts)
prsnl: speech, religion, abortion, marital rts
Procedural due process (5th amend = fed; 14th amend = states)
Deprivation of prop or liberty int
Challenging const of act of judge or administration
Guarantees:
Rt to notice (gov’t has obligation to disclose act about to do)
Rt to hearing (opportunity for you to respond)
Function of hearing: avoidance of unfair, arbitrary, or erroneous actions by gov’t
Test for PDP: 2 stage inquiry
is there a liberty or prop int involved?
Only triggered if one of these exists…. If yes, then
Ex: if k terminated early = prop int
what procedural elements are req’d?
what process is due?
Is hearing pre or post action?
Is there timely and adequate notice?
Who has burden of proof?
Opportunity to cross-examine?
Opportunity to respond orally/ in writing?
Test to decide if procedural element should be applied
1. How imp is int involved/ how significant?
a. More imp the int = more protection (i.e. fundamental rt)
2. How significant is the gov’t counter-argument?
a. Gov’t claims: too much procedural req = too much of a burden on gov’t (i.e. financial), proced req should be less
3. Where is the grtst risk of erroneous decisions lie?
a. Is the grtst threat on gov’t or p?
i. Indiv suffers more = more procedure
ii. Govt suffers more = less procedure
Substantive due process (5th amend = fed; 14th amend = states)
1. applies to legislation – can be used to strike dwn gen app laws
2. indiv argues that some law interferes w/ their rts
§ bans on abortion is unconst
§ law cannot be applied retroactively
o only SS or RR applied – if fund rt involved, then use SS
· 3 types of rts/liberties
1. absolute – no gov’t reg allowed (i.e. rt of belief)
2. fundamental – test of strict scrutiny (i.e. vote, marriage, abortion)
a. presumption against gov’t reg
b. gov’t has burden
3. lesser protected – test of rational review
a. presumption of validity of gov’t reg
b. indiv has burden
· 5 major themes/principals of substantive due process:
1. ways to identify liberty int/rt
a. nature of indiv rt being asserted? – crts concern is about source of rt
i. expressly stated or implied in const
ii. grounded in tradition (i.e. precedents)
b. is this rt crucial to living in society? – essential to organized society
c. is this int rec
– one or more prsns related by, blood, marriage, or adoption
applies to extended family (grandps, uncles, aunts, cousins) as well as nuclear family (Moore case)
natural father has a fund rt to be w/ child
i. if biological father has a child through an affair and that child has an existing family, then the biological father’s rt is displaced by existence of family
mother has rt to child over grandps, unless shown to be unfit by crt
grandps have rt to visitation under const, but mother’s rts ar upheld if she is opposed
privacy
obtainment of contraceptives – applies to married, unmarried, and minors
abortion: undue burden analysis – are the pre-viability regulations creating a substantial obstacle to the woman? (Casey case) – cannot create obstacle for woman; after viability, govt can ban abortions, but only if mother is not at risk
i. if all out ban on abortion pre-viability = SS
ii. if fall short of total ban = undue burden analysis
homosexual activity is NOT a fund rt
i. no connection betw marriage, family, procreation
ii. apply rational review
