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Flashcards in Con Law 3 - Individual Rights Deck (52):

Discrimination by states, 14th A equal protection clause applies unless

(1) States discriminating against out of state visitors. Then P&I clause of article 4.
(2) States discriminating against out of staters who want to move there, P&I clause of 14th A


2 Types of Due Process

Procedural and Substantive


Procedural Due Process

Protects persons against deprivations of life, liberty, or property, without due process of law. Covers all people and corporations.


Due Process - Liberty

Pretty much anything you want to do. You have a liberty interest in not being thrown in jail, punished, etc.


Due Process - Property

Generally property interests in:
(1) public education
(2) public employment if is tenure or termination for cause
(3) welfare benefits
(4) driver's licenses


Due Process - Life

Comes into play if the government wants to kill you.


Due Process - What process is due before govt can deprive you?

(1) Adequate notice
(2) Adequate hearing


Adequate Notice and Hearing - 3 Factors

(1) Importance of the protected interest. Life gets most protection.
(2) Risk of error. By the government w/o the procedural protection.
(3) Burden on the govt. How burdensome is it on the govt to give you the procedural protection.


Substantive Due Process

Unenumerated rights. Not economic rights.


Economic Regulation - Standard of Review

Rational basis. Rationally related to a legitimate interest.


Strict Scrutiny

(1) Compelling interest. Has to be the actual interest.
(2) Narrowly tailored/no alternative/ least restrictive means/necessary.


Fundamental Rights

SCAMPERD - Sexual-orientation, contraception, abortion, marriage, possession of obscene materials, private education, family relations, right to die.



Woman has privacy interest in choosing to have an abortion before the fetus is viable. Even subsequent to viability, a state cannot force a woman to have a pregnancy if it endangers her life or health. Any abortion restrictions must have a life-health exception.


Abortion Restrictions

Unconstitutional if it imposes an undue burden


Things that are Undue Burdens on abortion

1. A total ban.
2. Spousal consent.
3. Spousal notification.
4. Recording patient names.
5. Parental consent without judicial bypass.


Things that are not undue burdens on abortion

1. Parental consent with judicial bypass.
2. 24 hour waiting period
3. Truthful non-misleading information.
4. Refusing public funds.
5. Ban on certain methods if not the safest method.


Right to Family Relations

1. The govt cannot prohibit members of an extended family from living in a single household.
2. The state can ban unrelated persons from living together in a signle family residence.


Sexual Orientation

1. Receives rational basis review.
2. Can't criminalize same sex sexual activity.


Right to Private Education

Govt can't stop parents from sending kids to private schools.


Possession of Obscene Material

Right to possess them in your home. Can't have them outside or buy/sell them. No right to possess child pornography anywhere.


Right to Die

Right to refuse medical procedures, even if they're life extending.


Right to Travel

1. 14th A P&I clause allows you to travel freely from state to state.
2. Right to international travel is not absolute, govt can restrict on grounds of national security.


Right to Vote

1. Comes mostly from 1st A right of association and 14th A.
2. 15th A - no race discrimination in voting.
3. 19th A - no sex discrimination in voting.
4. 24th A - no poll taxes in fed elections. SCOTUS incorporated this.
5. 26th A - no age discrimination above 18 in voting.


Right to Vote - Scrutiny

1. If total ban on certain kinds of people voting - strict scrutiny.
2. Regulation of process that makes it harder to vote: (a) important govt interest and (b) no undue burden.


Voting Restrictions that are Constitutional

1. Reasonable residency requirements.
2. Reasonable registration requirements.
3. Reasonable time and manner regulations.
4. Felon disenfranchisement.


Voting Restrictions that are Unconstitutional

1. Poll taxes.
2. Can't restrict school board elections to only parents & property owners.
3. Can't count votes using standards that are vague or not uniform across counties.


Takings Clause

Govt can't take private property for public use without just compensation.


2 Kinds of Takings

1. Direct govt appropriation.
2. Regulatory taking - regulation is so onerous that it is tantamount to direct appropriation.


3 Categories of Regulatory Taking

(1) Permanent physical invasion. No matter how minor.
(2) Deprivation of all economically beneficial use.
(3) Balancing factors of economic impact and character of the govt action.


Equal Protection - Source

(1) For the states - 14th A.
(2) For feds - 5th A.


Equal Protection Approach

(1) Identify the type of discrimination.
(2) Identify and/or apply the level of scrutiny attached to that discrimination.


EQP Disparate Impact- Rational Basis

1. Burden is on plaintiff.


Two Exceptions to EQP Disparate Impact Rational Basis

(1) Intentional disparate impact = strict scrutiny.
(2) Discriminatory application of a neutral standard.


EQP - Intermediate Scrutiny

Govt must show that discrimination is:
(1) substantially related to
(2) an important interest (which has to be actual interest govt did it)


EQP What gets intermediate scrutiny

1. Sex
2. Illegitimacy


EQP - What gets Strict Scrutiny

1. Race.
2. Foreigners being discriminated against by states.


EQP - Race De Jure Segregation

Segregation by law. Almost always unconstitutional.


EQP - Race De Facto Segregation

Segregation not legally required, happens through private choice. Not unconstitutional because there's no state action.


Affirmative Action

Gets strict scrutiny. Only 2 compelling interests, (1) remedying state's own past discrimination and (2) diversity in higher education


Affirmative Action - Remedying state's own past discrimination

Narrow tailoring requires benefits go as closely as possible to the people who were actually affected by the state's own discrimination


Affirmative Action - Diversity in Higher Education

Narrow tailoring requires that race can only be on factor among many with no fixed weight.


Alienage Discrimination by States - Public Funding Exception

States can exclude non-citizens from government jobs related to self-governance:
(1) Police officers
(2) govt officials
(3) public school teachers
Can't do it for govt jobs that are purely ministerial e.g. notaries


Discrimination against Illegal Aliens

Not a protected group, gets rational basis review. Illegal alien children get intermediate scrutiny. Can't treat illegal aliens in a way that effects immigration because that's exclusive fed territory.


EQP - Illegitimacy

It probably has no important governmental interest.


Sex Discrimination - Examples of unconstitutional laws

(1) Favoring men in estate administration.
(2) Military housing.
(3) Alimony
(4) Drinking age.


Sex discrimination - examples of constitutional laws

(1) The draft
(2) Statutory rape


Article 4 - Privileges and Immunities - Invalid Discrimination against non residents

1. Higher fees for commercial licenses.
2. Commuter taxes.
3. Restricting abortions to state residents.
4. Requiring employers to hire state residents.


Article 4 - Privileges and Immunities - Valid non-resident discrimination

1. Recreational licenses.
2. Preserving in-state natural resources.


Contract Clause - States can't interfere with contracts

In determining whether a state can modify contracts court considers:
(1) Severity of Impairment
(2) Importance of the interest.


Ex Post Facto Laws - Invalid Types

1. Statute creating a new crime that people are going to be punished for if they committed it in the past.
2. Statute increasing punishment for something you've done in the past.
3. Statute reducing evidentiary burden for conviction after commission. (Changes in admissibility rules don't count)
4. Statute lengthening the statute of limitations after it's expired.


Bill of Attainder

1. Law
2. Punishment
3. With no trial
4. Names individuals or group singled out
5. For past conduct


3 Rights not incorporated against the states

(1) 5th amendment right to indictment by grand jury
(2) 7th amendment right to jury trial in civil case
(3) 8th amendment excessive fines clause