Individual Rights Flashcards
STATE ACTION DOCTRINE
What is the State Action Doctrine?
The Structure of the Constitutional’s Protection of Individual Liberties
State Action Doctrine = Principle that the Constitution ONLY applies to gov’t (“STATE”) ACTION and NOT PRIVATE conduct….
….UNLESS Congress is regulating private behavior pursuant the following:
Congress, by statute, may apply constitutional norms to private conduct pursuant to EITHER…
1) the 13th Am: The 13th A. authorizes Congress to prohibit private discrimination – the way this is done is that the 13th A. authorizes Congress to ELIMINATE the Badges and Incidents of Slavery
NOTE: Discrimination itself NEVER violates the 13th. A. – only slavery and involuntary servitude violate the 13th Am DIRECTLY… BUT private discrimination can violate LAWS passed pursuant to the 13th Am
OR
2) the Commerce Cl: Congress CAN can apply Const. norms to private conduct if it affects interstate commerce
→ example: CRA of 1964 authorized Congress to end laws that allowed for segregated lunch counters and transportation under Congress’ Commerce Clause authority – Substantial effect on interstate commerce
NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts
SITUATIONS WHERE PRIVATE CONDUCT MUST COMPLY WITH THE CONSTITUTION
What are 2 instances where private conduct can be considered “state action”?
***THE ONLY ENTANGLEMENT EXAMPLES THAT CAN BE TESTED ARE LISTED
The Structure of the Constitutional’s Protection of Individual Liberties
Private conduct MUST comply with the constitution under EITHER of the 2 situations here:
1) The Public Function exception: If a private entity is performing a task TRADITIONALLY, EXCLUSIVELY done by the gov’t the the constitution will apply to that private action
→ examples:
(i) a company town ran by a private operator;
(ii) the rules governing the running of primary elections by private political parties;
→ NOT AN EXAMPLE: Privately run utilities ARE NOT counted in this exception and are still seen as a private action that is not subject to congressional regulation as if it was a public actor (obvi regulation as a regular business still exists)
2) Entanglement exception: The Const. applies if the gov’t affirmatively (i) authorizes; (ii) encourages; OR (iii) facilitatesunconst. activity;
NOTE: there needs to be SIGNIFICANT involvement (e.g. a ONE time gift from the gov’t is NOT significant state action); needs to be CONTINUOUS involvement
VERY inconsistent doctrine, so KEY examples
(**ONLY EXAMPLES THAT CAN BE TESTED)
(i) cts cannot enforce racially restrictive cov’ts
(ii) there IS state action when the govt leases premises to a restaurant that racially discriminates
(iii) there IS state action when a state provided free books to private schools that racially discriminate
(iv) there ISstate action when a private entity regulates interscholastic sports w/in a state
(v) there is NO state action when the NCAA orders suspension of a basketball coach at a state university
(vi) there is NO state action when a private school that is over 99% funded by the govt fires a teacher b/c of her speech (Gov’t subsidy is NOT enough for there to be state action)
(vii) there is NO state action when a private club w/a liquor license from the state racially discriminates
INCORPORATION OF BoR Onto the States
Which BOR prvns are NOT “incorporated” (i.e. they DON’T apply to the states)?
The Structure of the Constitutional’s Protection of Individual Liberties
GENERALLY: The Bill of Rights applies directly only to the federal government
- The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.
ALL BoR provisions are deemed incorporated EXCEPT:
1) 3d Am right NOT to have soldiers quartered in a persons home
2) 5th Am right to a grand jury indictment in CRIMINAL cases
3) 7th Am right to jury trial in CIVIL cases
4) 8th Am right against excessive fines
REMEMBER: ALL OTHER prvns of the BOR are incorporated and apply to the states via the 14th Am.
3 LEVELS OF SCRUTINY
What are the 3 levels of scrutiny re: individual liberties/equal protection?
The Structure of the Constitutional’s Protection of Individual Liberties
“Under the __________ test, a law is upheld if it is ___________ to a gov’t purpose. Under this test, the burden of proof is on the ____ to show that _________ .”
1) RATIONAL BASIS:
Test: a law is upheld IF it is RATIONALLY related to a LEGITIMATE gov’t purpose
Burden to show = (i) that there is NOT a CONCEIVABLE legitimate purpose (doesn’t have to be actual purpose) and (ii) that the law is NOT RATIONALLY related to the purpose
Burden of proof = on the π
2) INTERMEDIATE SCRUTINY:
TEST: a law is upheld IF it is SUBSTANTIALLY related to an IMPORTANT gov’t purpose
Burden to show = (i) Actual objective is IMPORTANT and (ii) the law is a very good way/narrowly tailored to achieving the objective
Burden of proof = on the gov’t
3) STRICT SCRUTINY: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose
Burden to show = (i) Actual objective is CRUCIAL, VITAL and COMPELLING and (ii) there is NO LESS restrictive alternative to achieve the purpose
Burden of proof = on the gov’t
PROCEDURAL DUE PROCESS
What is procedural due process?
Individual Liberties
Procedural Due Process = The procedures that a gov’t MUST FOLLOW in order to take away someone’s life, liberty or property
Deprivation of Liberty / Deprivation of Property
When does a “deprivation” liberty or property occur?
***BAR EXAM TIP
Individual Liberties
Deprivation of Liberty: occurs if there is the loss of a significant freedom provided by the Const or a statute
Examples to keep in mind for exam:
1) Prisoners will ALWAYS lose if suing for DP violation
of liberty
2) Notice and Hearing MUST occur before and adult
can be institutionalized
3) Need a screening by a neutral fact finder when a
parent institutionalizes a child
4) A harm to a person’s REPUTATION alone is NOT a
loss of liberty
Deprivation of Property: occurs if a person has an ENTITLEMENT (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled
→ There is a property interest if there is an entitlement and there is an entitlement if there is a reasonable expectation TO CONTINUE receiving a benefit
***BAR EXAM TIP: If the question implicates a deprivation of property and due process the answer will ALWAYS be WRONG IF it states something related to RIGHTS and PRIVILEDGES
Government Negligence generally NOT Deprivation of Due Process
Is gov’t negligence sufficient to deprive a person of due process?
Individual Liberties
To qualify as a deprivation of due process – Generally, there must be INTENTIONAL gov’t action; or at least RECKLESS ACTION for liability to exist
NOTE: in emergency situations, the gov’t is liable under DP ONLY IF the conduct “shocks the conscience”
Government FAILURE to protect from PRIVATE HARM NOT a deprivation of Due Process
Is the gov’t FAILURE to protect people from private harm a denial of due process?
Individual Liberties
Generally, the gov’ts failure to protect ppl from PRIVATELY inflicted harms does NOT deny due process
→ The government has to LITERALLY create the danger or a person MUST be in Gov’t custody for there to be a duty to protect
→ Example: 2 years of child abuse from dad and child protective services did not remove the child. Father eventually beat the child to death.
3 PART BALANCING TEST TO SEE IF THERE WAS SUFFICIENT DUE PROCESS
APPLIES ONLY IF THERE HAS BEEN A DEPRIVATION!
(Only) If there HAS been a deprivation (of liberty/property), how can we tell if in-place procedures are sufficient?
Individual Liberties
3-part balancing test: The see if there has been sufficient DP after a deprivation has occurred, the courts will look at (IAE): (I) IMPORTANCE (A) ADDITIONAL PROCEDURES (E) EFFICIENCY
1) The IMPORTANCE of the interest to the individual → Greater importance = more procedural protection needed
2) The ability of ADDITIONAL PROCEDURES to increase the accuracy of the fact-finding
→ Additional procedures more likely to have been rqrd if they would REDUCE erroneous deprivation?
3) The gov’ts interest in EFFICIENCY and SAVING $$
EXAMPLES → MUST HAVE….
- NOTICE AND HEARING before terminating WELFARE benefits
- NOTICE AND HEARING before terminating parental CUSTODY rights
- NOTICE AND HEARING before Non-emergency INSTITUTIONALIZATION
- NOTICE AND HEARING before PRE-JUDGMENT ATTACHMENT or Gov’t SEIZURE of PROPERTY except if exigent circumstances exist
- NOTICE of charges and OPPORTUNITY to explain when a student is disciplined by a public school (no need for trial type hearing). BUT no DP required for corporal punishment
- POST-TERMINATION HEARING before terminating SOCIAL SECURITY DISABILITY benefits
- DUE PROCESS for US citizens held as ENEMY COMBATANT (representation by council, notice of charges, meaningful factual hearing)
- ABILITY to CHALLENGE CONTINUED detention for Non-citizen held as enemy combatant
- JURY INSTRUCTIONS AND JUDICIAL REVIEW before awarding PUNITIVE DAMAGES
ALSO…
10. The Gov’t CAN SEIZE property used in an illegal activity EVEN if there is an innocent owner
BUT…
11. An Excessive PUNITIVE DAMAGE award VIOLATES Due Process
SUBSTANTIVE DUE PROCESS
What is substantive due process?
Individual Liberties
Substantive Due Process = Focused on whether the gov’t has an adequate reason for taking away a person’s life, liberty, or property
Substantive Due Process = Substantive Justification
NOW, analysis is used to protect (i) ECONOMIC liberties;(ii) safeguarding PROPERTY; AND privacy (fundamental rights)
ECONOMIC RIGHTS AND DUE PROCESS
What is the basis for evaluating laws that affect economic rights (p/t substantive due process)?
Individual Liberties
Only a RATIONAL BASIS test is used for laws affecting economic rights
TAKING CLAUSE OF 5th A.
What is the standard req’d p/t the Takings Cl of the 5th Am?
Individual Liberties
Under the Takings Clause…the gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation
Ask…
FIRST: has there been a “TAKING”?
SECOND: is it for PUBLIC USE?
THIRD: is JUST COMPENSATION paid?
———————————————————————————–
FIRST: has there been a “TAKING”?
Posessory taking = gov’t confiscation OR physical occupation of property
Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property
NOTE:
Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed
A property owner may bring a takings challenege to regulations that ALREADY EXISTED at the time the property was acquired
Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable
SECOND: is it for PUBLIC USE?
It’s a “public use” taking SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public
THIRD: is JUST COMPENSATION paid?
THIS IS Measured in terms of LOSS to OWNER in reasonable MKT value terms
The GAIN to the Gov’t is IRRELEVANT!
THE CONTRACTS CLAUSE
What is the Ks Cl of Art. I of the Const?
Individual Liberties
Contracts Clause = NO STATE shall impair the obligations of contracts
THIS NEVER applies to FED GOV’T - it Only applies to STATE/LOCAL interference w/contracts
THIS ONLY applies to EXISTING contracts and does not hinder the ability of gov’t to hinder FUTURE contracts
STATE/LOCAL gov’ts CAN interfere w/ existing PRIVATE Ks IF INTERMEDIATE SCRUTINY is met
→ If the interference is substantial, then the law must be NARROWLY tailored to meet an important gov’t interest
STATE/LOCAL gov’ts CAN interfere w/ existing GOV’T Ks IF STRICT SCRUTINY is met
EX POST FACTO LAWS
When can the gov’t adopt ex post facto laws?
Individual Liberties
Ex post facto law = A law that CRIMINALLY punishes conduct that was LAWFUL when it was done or that INCREASES PUNISHMENT for a crime after it was committed
RETROACTIVE CIVIL LIBERTY = A law that CIVILY punishes conduct that was LAWFUL when it was done
Gov’t can create retroactive laws in CIVIL CASES ONLY NEVER in CRIMINAL cases
8 FUNDAMENTAL RIGHTS SUBJECT TO STRICT SCRUTINY
Which 8 fundamental rights (protected under substantive due process) are subject to strict scrutiny?
Individual Liberties
Privacy is a fundamental right protected under substantive due process. The following 6 rights pertaining to privacy are subject to STRICT SCRUTINY:
1) Right to Marry (only applies for opposite sex couples as of TODAY)
2) Right to Procreate
3) Right to Custody of one’s Child
→ Can only be terminated if statute proves a compelling interest like child abuse/neglect
NOTE: a state CAN create an irrebuttable presumption that a married woman’s husband is the father of her child
4) Right to Keep Family Together
→ Includes extended family BUT NOT students w/no bio relationship
5) Right to Control the Upbringing of One’s Children
→ e.g. no mandated grandparent visitation
6) Right to Purchase/Use Contraceptives
7) Right to Travel from State to State (BUT NOT int’l travel)
→ Protected as a FUNDAMENTAL RIGHT under EQUAL PROTECTION
→ Protected as a FUNDAMENTAL RIGHT under P and I Clause of 14th A.
→ ANY DURATIONAL RESIDENCY RQMTS Must meet Strict Scrutiny
→ NOTE: for voting purposes, 50 DAYS is the MAXIMUM allowable durational req
8) Right to Vote
→ “One-person, one-vote” must be met for all state/local elections – so districts must be of aprox equal population size
→ poll taxes are unconstitutional
→ Voter ID laws are generally constitutional
→ Property ownership rqmt for voting is almost always NEVER constitutional
→ At-large elections are constitutional unless there is proof of a discriminatory purpose
→ The use of race in drawing election district lines must meet strict scrutiny
→ Counting uncounted votes without standards in a presidential election violates equal protection g
