Con Law II Flashcards
Factors in determining whether a law is a bill of attainder
- whether the challenged statute falls within the historical meaning of legislative punishment;
- whether the statute furthers nonpunitive legislative purposes;
- whether the legislative record evinces an intent to punish.
* *a law is not a bill of attainder merely because it imposes burdens on only one person. (Nixon v. Admin of General Services) - was found to be non punitive and in the interest of an important public policy.
Bill of Attainder
a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct.
Strict Scrunity
The government restriction must be narrowly tailored (no alternative that is more effective or less discriminatory) to advance a compelling government interest (cannot be tenuous). Law is presumptively invalid and gov’t has burden.
Intermediate Scrutiny
Court will uphold law only if it is “substantially related” to an “important” gov’t interest.
Rational Basis Test
Law will be upheld only if it is rationally related to a legitimate gov’t interest. Highly deferential to gov’t activity and almost always upheld. Challenger has burden.
Fundamental Right
Inherent in our ordered concept of liberty and firmly rooted in our Nation’s traditions.
Due Process and Abortion
Gov’t cannot prohibit abortion before viability or place an undue burden on that right. Gov’t can regulate or prohibit abortion after point of viability, except where necessary to preserve the life or health of the mother.
Undue Burden - Abortion
- spousal notification is an undue burden
- parental notification of minor is not an undue burden so long as there is a judicial bypass.
- 24 hour waiting period
- data collection not an undue burden
Procedural Due Process
Gov’t shall not take a person’s life, liberty, or property without due process of the law.
-Minimum = notice and opportunity to be heard.
Substantive Due Process
protects certain fundamental rights not articulated in the text of the Constitution. This tests the reasonableness of the statute as compared to the ability of the government to enact such legislation and prohibits arbitrary govt action.
Affirmative Action
Affirmative Action plans may survive strict scrutiny if the government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan canNOT be used to remedy general past “societal discrimination”
Procedural Due Process - Deprivation of Property Rights
occurs if person has an entitlement to property and that entitlement is not fulfilled
Procedural due process balancing test
- Individual Interest, and
- Ability of procedural safeguards to protect that interest, against
- the gov’ts interest (typically administrative or financial)
Equal Protection
The Equal Protection Clause of the (amendment) prohibits the government from treating similarly situated individuals differently without sufficient justification.
Suspect Class
one saddled with such disabilities or subject to such a history of purposeful unequal treatment, or relegated to such a position on political powerlessness as to command extraordinary protection from the majoritarian political process
“discrete and insular minorities”
