Con. Law: Constitutional Rights & Violations

Question 1

Can a private actor be sued for violations of the Constitution?

Answer 1

Yes, where they satisfy the state action requirement

Question 2

What is state action?

Answer 2

(1) the private actor performs an exclusive public function
(2) the private actor and the government are so linked that the action of the private actor can be attributed to the government

Question 3

Does the draft violate the Thirteenth Amendment?

Answer 3

No

(but it should)

Question 4

What are the basics of preemption?

Answer 4

(1) Congress does not intend to occupy a field completely and the state’s law is not otherwise preempted, states have a green light
(2) states may supersede the basic requirements of federal legislation

Question 5

How are Amendments incorporated to the states?

Answer 5

Through the Fourteenth Amendment

Question 6

What is the doctrine of selective incorporation?

Answer 6

It is the Supreme Court’s decision to piecemeal apply the Bill of Rights to the states

Question 7

Of all of the rights found in the Bill of Rights, which are not applied to the states

Answer 7

1. Fifth Amendment’s right to a grand jury in criminal cases
2. Seventh Amendment right to a trial in civil cases
3. Third Amendment’s right to prevent soldiers from quarting in your home

Question 8

What would be the rationale behind not applying the Third Amendment’s protection against soldiers’ quarting in your home to the states?

Answer 8

The states do not have a standing army so it is unlikely that any “state” soldiers would commander someone’s home

Question 9

Who is protected by the Duel Process and Equal Protection Clauses?

Answer 9

Legal persons (i.e. U.S. Citizens, Non-U.S Citizens, and corporations)

Question 10

What right are corporations not given?

Answer 10

The Fifth Amendment right against self-incrimination

Question 11

What do the “Due Process” clauses require?

Answer 11

That the deprivation of life, liberty, and property require fundamentally fair procedural safeguards

Question 12

What acts invade liberty interests?

Answer 12

(1) Bodily restraints
(2) Physical punishments
(3) Commitment to a mental institution

Question 13

What does NOT invade a liberty interest?

Answer 13

(1) injury to reputation in the absence of related harm to a more tangible interest
(2) forced administration of medicine

Question 14

What does “bodily retraints” mean?

Answer 14

Putting someone in jail or restricting their physical movements

Question 15

What acts invade a property interest?

Answer 15

1. Restriction on public education
2. Revoking continued welfare benefits
3. Revoking a driver’s license
4. Terminating public employment
5. Garnishing wages prejudgment
6. Siezure of property
7. Revoking a business license
8. Capital punishment

Question 16

When may a student’s right to public education be restricted?

Answer 16

When she is dismissed for academic reasons

Question 17

What is the test for the constitutional revocation of a driver’s license sans hearing?

Answer 17

1. statute contained special provisions for hardship cases or holders of a commercial license;
2. risk of erroneous deprivation was not great; and
3. regulation promoted the public interests in administrative efficiency, highway and traffic safety, and the prompt removal of a safety hazard

Question 18

When is the revocation of public employment unconstitutional?

Answer 18

1. if the employment is under a tenure system; or
2. clear understanding, either expressed or implied, that the employee may only be terminated for cause

Question 19

Is there a property interest in the renewal of a fixed-term employment contract?

Answer 19

No

Question 20

In the context of prejudgment garnishment of wages, is there a property interest when an individual is first applying for employment?

Answer 20

No

Question 21

When will constructive notice be constitutional in the forfeiture of property?

Answer 21

When a certified letter providing notice to the siezure of property to a prison inmate

Question 22

What test does the Supreme Court use to determine what procedural safeguards are required?

Answer 22

1. the private interest that will be affected by the action;
2. the risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute proceedings; and
3. the government’s interest in streamlined procedures, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail

Question 23

What kind of pecuniary interest would require a judge to recuse himself?

Answer 23

If that interest would possibly tempt a judge to issue an untrue or imbalanced judgment

Question 24

Do irrebuttable presumptions violate due process?

Answer 24

Yes, in both criminal and civil cases whether the presumption is actual or implied

Question 25

Describe the historical and modern interpretations of substantive due process?

Answer 25

Historically, substantive due process was used to protect property and contract and to invalidate the regulation of economic activity.

Now, it is used to protect fundamental rights of personhood.

Question 26

What is leftover from the historical interpretation of substantive due process?

Answer 26

Economic regulation will be constitutional if it is rationally related to a legitimate government interest

Question 27

What are fundamental rights?

Answer 27

1. right to vote
2. right to travel
3. right to privacy
4. First Amendment rights
5. family rights

Question 28

What levels of review are interferences with fundamental rights subject to?

Answer 28

1. strict scrutiny
2. intermediate scrutiny
3. rational basis scrutiny

Question 29

What is included under privacy rights?

Answer 29

1. The right for individuals to access contraceptives
2. The right to marry
3. Family to live together
4. Sexual orientation
5. Private education
6. Possessing obscene material
7. The right to die
8. The right to travel
9. The right to vote
10. Medical records

Question 30

What is an exception to the right to access contraceptives?

Answer 30

Corporations may deny their employees coverage for contraceptives

Question 31

What fundamental rights are reviewed under strict scrutiny?

Answer 31

1. Contraceptives
2. Marriage
3. The right to travel domestically
4. The right to vote
5. First Amendment rights generally

Question 32

What fundamental rights are reviewed under intermediate scrutiny?

Answer 32

1. Family relations
2. Sexual Orientation

Question 33

What fundamental rights are reviewed under rational basis scrutiny?

Answer 33

1. The right to travel internationally
2. The right to medical records
3. The right to die
4. The right to possess and obtain obscene material

Question 34

Prior to revoking parental rights, what must a state show?

Answer 34

the state must support its allegations by at least clear and convincing evidence

Question 35

When it comes to sex discrimination, where does sexual orientation and gender identity fall?

Answer 35

It is included in “on the basis of sex”

Question 36

What does “the right to die” mean in the context of fundamental rights?

Answer 36

The right to refuse life saving treatment

Question 37

When is the right to vote subject to rational basis and not strict scrutiny?

Answer 37

When ballot access is restricted based on:
1. age
2. duration of residency
3. payment of filing fees

Question 38

What is included in the fundamental right to medical records?

Answer 38

1. the individual interest in avoiding disclosure of personal matters
2. the interest in independence in making certain kinds of important decisions

Question 39

What is the circuit split with regard to confidential medical information?

Answer 39

The minority of circuits reject medical records’ confidentiality while the majority upholds it

Question 40

Within the majority, what is the circuit split in the context of confidential medical information?

Answer 40

Some hold that state or federal law always supersedes the right to confidential medical information

The other uses a balancing test

Question 41

What is the balancing test for whether there has been a substantive due process violation of confidential medical information?

Answer 41

1. the type of record requested
2. the information it does or might concern
3. the potential for harm in any subsequent nonconsensual disclosure
4. the injury from disclosure to the relationship in which the record was generated
5. the adequacy of safeguards to prevent unauthorized disclosure
6. the degree of need for access
7. whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access