MBE Constitutional Law - Due Process and Fundamental Rights

The government, not private individuals.

⚠️ Exceptions:

Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or

Individual and gov. are excessively intertwined

Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement

13th Amendment;

Commerce Clause; and

Federal purse power

Federal government; and

States via the Fourteenth Amendment Due Process Clause (most provisions, see incorporation card)

3rd Amendment

Right against quartering (only incorporated in 2nd Circuit)

5th Amendment

Right to indictment by a grand jury in criminal cases; and

7th Amendment

Right to a jury verdict in civil cases

Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5th Amendment

Law will be upheld if:

It is necessary to achieve a compelling/crucial government interest; and

Is the least restrictive means possible to achieve that interest (narrowly tailored)

if law involves a suspect classification or fundamental right

Law will be upheld if it is substantially related to an important government interest

Strict scrutiny: Government must demonstrate the classification is necessary to achieve a compelling governmental interest and is narrowly tailored to achieve that interest.

Intermediate scrutiny: Government must demonstrate the classification is substantially related to an important governmental interest.

Law will be upheld if rationally related to a legitimate government purpose

⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary

Challenger; must prove that law is unconstitutional

Requirement that the government cannot deprive its citizens of life, liberty, or property without due process of law.

Two types: procedural and substantive

Rooted in both the 5th and 14th Amendments

If government is depriving an individual of life, liberty, or property, individual must be given:

Notice;

Opportunity to be heard (i.e. hearing); and

Decision by a neutral arbitrator

Significant restriction on freedom of movement, action, fundamental rights, or any other rights guaranteed/provided by the Constitution

Deprivation of a “legitimate claim of entitlement.”

Examples:

Public education;

Public employment (only if employee is tenured or can be fired for cause; “at-will” employment does not trigger due process);

Welfare benefits; or

Government-issued licenses

No, can be terminated without due process

Importance of the protected interest;

Risk of deprivation with current procedures and value of additional procedures; and

Government burden (fiscal and administrative) to provide process

Yes

No, only a post-termination evidentiary hearing

No, only a post-termination evidentiary hearing.

⚠️ Notice and an opportunity to respond to the decision-maker is required before termination.

No, only real property

Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.

More info: Substantive Due Process

Rational basis review (rationally related to a legitimate gov. purpose)

⭐️ Highly likely to be upheld. Court has not struck down economic regulation for violation of substantive due process since 1937.

Prohibits states from substantially impairing existing contract duties. Article I, Section 10.

⚠️ Congress can still restrict contracts that will be made in the future

Intermediate scrutiny. Will only be upheld if it is:

Necessary to achieve an important, legitimate public interest;

Substantially related to that interest; and

Narrowly tailored in promoting public interest

Stricter scrutiny. Only upheld if:

Necessary and reasonable to achieve an important, legitimate public interest;

Least restrictive means necessary to promote that interest; and

Necessary because of unforeseen circumstances

Prohibits government seizure of property without just compensation (Fifth Amendment). Also called "eminent domain."

Two types: possessory and regulatory.

Yes, via the Fourteenth Amendment

Real property interests:

Fee simple

Easement

Leasehold estate

Mortgage/lien

Personal property:

Patent rights

Trade secrets

Contracts

A government regulation that is so burdensome it essentially amounts to taking.

To decide if taking occurred, court weighs:

Economic burden on the owner;

Extent of interference with owner's reasonable use and enjoyment; and

Whether or not the taking benefits society (i.e. government’s interest in the taking)

If regulation results in:

Permanent physical occupation (no matter how minimal); or

Deprivation of all economically viable use of the property

⚠️ Must deprive the owner of all economic value, a severe decline in value does not constitute a taking absent other factors (ex. prohibiting structures to be built on an island where you want to build your beach home probably constitutes an unconstitutional taking)

Rational basis review

Fair market value of the property at the time of taking, measured in loss to the owner

Improper demand that a property owner give something to the community in exchange for zoning or development approval.

Constitutes a taking unless there is:

Essential nexus between exaction and legitimate state interests; and

Rough proportionality between burden on the developer and benefit to the public

Legislation that inflicts punishment on individuals or a designated group without a trial. Unconstitutional.

Unconstitutional criminal law that either:

Criminalizes conduct that was legal at the time it was done;

Imposes a harsher penalty after crime is committed;

Decreases prosecution's burden of proof for crime; or

Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)

Contracts Clause

Right to travel (nationally);

Right to vote; and

Right to privacy

Marriage

Sexual relations

Child-rearing/parenting

Family members to live together

Contraception

If right is infringed for all people: substantive due process

If right is only infringed for certain classes of people: violates equal protection

strict scrutiny

Rational basis review

The fundamental right to buy and use contraception

No

Yes. Includes the right to live with extended family members.

Yes, within one's home.

⚠️ Exception: there is never a right to possess child pornography.

Restrictions on the sale, distribution, transportation, or receipt of materials

Yes, can limit in-state benefits to in-state residents.

If durational requirement (e.g. must be a resident for 30 days to receive benefits), must be reasonable and short (1 year residency to be eligible for Medicaid is likely invalid)