Con Law I Final Exam - Unit 1 (Due Process)

What are the fundamental rights? (7)

1. Marriage

2. Procreation

3. Voting

4. Interstate Travel

5. Right to Privacy

6. Blood Relatives Living Together

7. First Amendment

What are the personal liberty interests? (2)

1. Right of CONSENTING ADULTS to have sex when and how they want

2. The individual’s right to refuse unwanted medical treatment (right to die)

What are the ordinary liberty interests (ie neither a fundamental right or personal liberty interest)? (3)

1. Right to assisted physician suicide

2. Contracts

3. Economic interests

What is the scrutiny level and ends/means/fits test for fundamental rights?

• Strict Scrutiny (does the government have a compelling interest?)

  • burden on the govt.

• Narrowly Tailored/Tight Fit (least restrictive means necessary to achieve compelling interest)

What is the scrutiny level and ends/means/fit test for personal liberty interests?

• Heightened, but not Strict (rational basis with bite, actually legitimate purpose)

  • burden usually on govt.

• Undue Burden or Heightened Scrutiny

What is the scrutiny level and ends/means/fit test for ordinary liberty interests?

• Rational Basis (any conceivably legitimate purpose) (legitimate = not arbitrary or irrational)

  • burden on challenger

• Rationally Related (is the method rationally related to the purpose?)

When is something a fundamental right?

When it is: 1) a right inherent in the American scheme of liberty; 2) a right that would disable justice in its absence; 3) dependent in history

What is the scrutiny level for gay marriage if it is a hybrid equal protection / due process claim?

Where there is a rational basis level group under EP, that will be the basis unless the law restricts that group from a fundamental right. If that is so, then it goes to strict scrutiny.