ConLaw - Individual Rights

Question 1

How many Q’s come from Indiv rights section of Conlaw?

Answer 1

HALF!

Question 2

In order for there to be a federal constitutional violation, what is required?

Answer 2

State Action

EP and DP questions require “state action”

Once it says private actor, hypo has to go way out of its way to show that state adopted the action

Question 3

What is the 13th amendment?

Answer 3

bans slavery and all incidents of slavery

on MBE, questions will involve laws involving racial discrimination and 13th amendment allows you to bring suit against private actor for** RACIAL DISCRIMINATION**

eg of violation of 13th amendment, “Congress enacts a statute punishing each and every conspiracy entered into by and two or more persons for the purposes of denying black persons education or housing, solely because of their race.” this is racial disc by private actor; therefore 13th amendment violation

Question 4

What are priv’s and immunities?

Answer 4

This is about state A passing state law discriminating against residents of State B based on their status as State B citizenship (inapplicable to corporations and aliens)

Requires state actor

Question 5

What is 15th amendment?

Answer 5

Involves RACIAL DISCRIMINATION relating to VOTING

Requires state actor

Question 6

Step 1: What is equal protection about?

Answer 6

14th amendment involving certain people being treated differently than everybody else

NOTE: only applies to states and not the federal government

can be creating classes of people

If you see this, you know it’s EP question

can be law students differently than everyone else, men, women, any group

Question 7

What are 3 levels of the EP scrutiny?

Answer 7

3 levels of scrutiny:

depends on WHO the PEOPLE are, so answer this question first

1. Strict scrutiny applies to race, alienage, national origin

government has burden to prove law necessary to achieve compelling interest

2. Intermediate scrutiny applies to gender, illegitimate children

substantially related to important governmental interest

3. rational basis scrutiny applies to everybody else

P (not govt) has burden to show law NOT RATIONALLY RELATED to any LEGITIMATE INTEREST
Watch out for MBE Q that flips the burden to the gov’t…the party, not the govt has to show rationally related.

Question 8

How many types of EP questions

Answer 8

IDing that you are doing an EP question (look for group being treated differently than everybody else)

They’ll tell you there’s EP question/violation, and ask you what party has to prove or what level of scrutiny applied (ask, who are the people?)

Question 9

When there is a state statute an individual is charging, how should on approach?

Answer 9

Look at the words of the statute and ask what the state is doing? who is being discriminated against?

If hypo is about someone being treated differently than everyone else, you know it’s about EP. Don’t get distracted by others.

Question 10

What is strict scrutiny?

Answer 10

1.

government has burden to prove law is the least restrictive means to achieve compelling interest

Strict scrutiny applies to race, alienage, national origin

Note: alienage is only suspect if the classification is made by state law

Question 11

MBE Tip

Answer 11

Never get DP confused with EP

Never get PROCEDURAL DP confused with SUBSTANTIVE DP

Question 12

What is procedural Due Process clause?

Answer 12

No person shall be deprived of life, liberty, or property without due process of law

Sometimes in A’s you’ll see “property interests” or “property rights” this is a buzzword for PROCEDURAL DP

If gov’t tries to take away property or property rights, you get notice and a **hearing ** (which includes right to apply

eg of property rights: gov’t jobs, licenses, benefits, and public education

No scrutiny. The trick is to know that you have the property right in the first place. If applying for law license, for example, you do not have property rights yet, but if they wanted to take it away after you got licensed, you have property right and have right to notice and hearing.

Question 13

What is intermediate scrutiny?

Answer 13

**substantially related to important governmental interest

Intermediate scrutiny applies to gender, illegitimate children

Question 14

What is rational basis scrutiny?

Answer 14

P (not govt) has burden to show law NOT RATIONALLY RELATED to any LEGITIMATE INTEREST

rational basis scrutiny applies to everybody else (race, alienage, national origin = strict; gender, illegitimate children = intermediate)

Question 15

What is substantive due process?

Answer 15

This has to do with your liberty rights, your freedoms

If govt tries to take away liberty rights from all citizens, or tries to make all citizens do something the same way

has to apply to EVERYBODY

EP=SOME people; DP=ALL people

Question 16

What rights are covered by substantive DP?

Answer 16

Fundamental rights: right to travel intrastate (note: have right to travel within state, but not a fundamental one); right to vote; right to privacy; right of **free speech **; right of privacy

mneumonic device for privacy rights: CAMPER (contraceptives, abortion, marriage, procreation, education (private), right to raise family how you want

Question 17

What are the fundamental privacy rights?

Answer 17

CAMPER without the A now…

contraceptives, marriage, procreation, education (private), right to raise family how you want

Also includes right to have non-commercial, consensual sex and right of related persons to live together

Question 18

What are the levels of scrutiny for substantive DP

Answer 18

If fundamental, you apply strict scrutiny

If non-fundamental, apply rational basis scrutiny

only two levels in substantive DP; no intermediate, either fundamental or it’s not

Question 19

If federal regulation cited under EP and DP, what amendment may an MBE question refer to and why?

Answer 19

**5th amendment. **

Generally, 90% of time, the state will be the one passing the law.
If state passing law, will be acting under the 14th amendment

If federal Congress is passing the law, and looks like EP or DP issue, always under the 5th amendment, so look for answer talking about 5th amendment
rather than talking about EP, they may say “EP or DP clause of the 5th amendment”

This is because the Equal Protection Clause of the Fourteenth Amendment applies to the federal government through theDue Process Clause of the Fifth Amendment.

You may get thrown off because looks like equal protection, but they say DP clause of the 5th amendment, or vise versa, but says EP clause of 5th amendment CHOOSE the one talking about 5TH AM ONE IF FEDERAL

Question 20

Takings (5th amendment) 4.2%

What is the takings clause aka eminent domain?

Answer 20

Govt can take private property for public use as long as they pay just compensation (usually fair market value)

Public use has expanded to “public purpose” so even if private person owned the thing you’re going to build, as long as it is rationally related to any conceivable public purpose, that is oK under the current reading of the taking clause.
eg, going to build a new condominium…looks private, but govt may say going to generate jobs, boost economy etc and that’s okay

Also look out for something that reduced economic value of your property to nothing or next to nothing (eg, building nuclear reactors across the street), this is in effect a “taking” and they’ll have to pay just compensation.
If goes down ten grand from 300k, that’s not a taking.

Question 21

What two clauses deal with religion?

Answer 21

Establishment clause and free exercise clause, both contained in the first line of the first amendment.

Question 22

What is the establishment clause?

Answer 22

Separation of church and state
State cannot pass law to establish or show preference to a religion

Lemon test:
1. statute must have secular purpose;
2. cannot advance or inhibit religion; AND
3. no excessive entanglement (between the state and religion) (this usually has to do with the state not giving too much money to a religion or religious clause)

put another way, the act cannot lead a reasonable observer to conclude that the govt is endorsing a religious observance, not merely celebrating (for example) the secular holiday season

EG, if one religion allowed to do something, need to allow all religions
if giving money to schools, does not auto-violate excessive entanglement
Just bc some religious schools get something, doesn’t auto-violate bc doesn’t necessarily amount to excessive entanglement
Generally a one-time payment doesn’t indicate excessive entanglement unless for explicit religious purpose
eg, Govt can do things like have nativity scene as long as other non-religious symbols nearby or a sign that said “furnished by private parties”

Question 23

What is the free exercise clause?

Answer 23

Govt cannot comment/take a position/must remain neutral as to your religion.

Individuals just may not break law in the name of religion
cannot kill goats if violates law; cannot take peyote if breaking law
law must be neutral on its face

If okay, “violates free exercise clause” and must meet strict scrutiny (needs to be least restrictdive means to achieve a compelling interest; note: SC has never found an interest so compelling to justify such an action)
If not okay, “applying rational basis test”

Question 24

What if the effect of a law seems to affect religious rights?

Answer 24

EG, kid wearing yammaka and metal bobby pins, refs stop game and require all of them to take them off based on state rule disallowing any head gear or metal stuff

The law based on player safety and applies to all, so is not a violation of free exercise clause

Always look at the statute and ask what is the stated intent or purpose

If incidental, then no violation of free exercise clause

Question 25

What are the two basic big issues in freedom of speech?

Answer 25

Can you ban speech? no, bc fundamentla right

Can you regulate speech? Yes, two ways to regulate: content-based reg and content-neutral reg

Question 26

What is content-based regulation?
What level of scrutiny applied?

Answer 26

content-based regulation = gov’t says NO based on content of regulation; govt refuses to allow march, parade, ad, speaking, etc.

content based=strict scrutiny

Question 27

What is content-neutral reg?

Answer 27

Govt letting you do what you want to do , just reg time, place, and manner of the speech

Generally OK, but has to serve signfiicant or important governmental interest and leave open alternative means of communication

This is a type of intermediate scrutiny

Put another way, content-based restrictions must:

(1) Advance important interests unrelated to the suppression of speech; AND
(2) NOT burden substantially more speech than necessary (i.e., narrowly tailored) to further those interests.

Look for a regulation on speech that applies to the HOW, WHERE, WHEN and not just an unequivocal NO

Question 28

**What is public forum v non

Answer 28

Anything to do with streets and parks is public forum and must apply significant/important govt interest and leave open other means of communcating TEST (strict scrutiny)

This also includes designated public forums (not traditionally public forum but govt has made them open for such activities; eg, schoolrooms that are open for after-school use by social, civic, or recreation groups)

non-forum=ads, buses, billboards
scrutiny= regs must be VIEWPOINT NEUTRAL and REASONABLY related to LEGITIMATE interest

Question 29

What obscene speech protected?

Answer 29

No.
Obscenity=3 different elements:

1. objective person applying **local community standards ** finds the work appeals to the pursient interest in sex
2. depicts sex in patently offensive manner AND

work **lacks any seirous literary, policitcal, artistic, or scientific value ** using national reasonable person standard

What is PURIENT in Chatanooga not same as what is obscene in Seattle

Question 30

What is speech that poses clear and present danger of imminent violence?

Answer 30

clear and present danger imminent violence=imminent illegal conduct likely AND speaker intended it

harsh language “fighting words”
words going to incite violence or aggression within group or individual

Question 31

Is defamation protected?

Answer 31

No, defamation not protected = can be regulated

Question 32

What is prior restraint?

Answer 32

This is shutting down speech before it occurs

eg, Gag orders, injunctions, shutting down publicaiton of book

This is unprotected and state cannot do this

Question 33

What is unfettered discretion?

Answer 33

Govt official choosing one form of speech over another
If you allow this type of speech, have to allow that type

look for hypo: we’ll allow this form of political advertising but not that form
if you’re going to allow, cannot restrict by form

Question 34

Overbroad or vague statutes OK?

Answer 34

No. Statutes regulating speech must be specific

Overbreadth doctrine = If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid

statutes that say things like “any of this, any of that, all forms of this” that’s generally too overbroad and/or vague

Question 35

What is a bill of attainder?

Answer 35

State law or federal law action punishes named **individual or group of people without a judicial trial

Neither state nor federal govts can do this.

This is improper, look for person or group being punished by statute

KEY: not treating them differently, it’s PUNISHING them

bill of attainder usually the wrong answer, but look for specific words describing certain person or group AND PUNISHING

Question 36

What is ex post facto?

Answer 36

An ex post facto law is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.

Law was legal when you did it, but now retroactively they’re trying to make it criminal

Going back in time to make something a crime

Question 37

What is the contracts clause?

Answer 37

State or federal govt impeding your ability to enter into a contractual relationship

eg, you can’t enter contracts with this business industry, you can’t do business with this person.

This is unconstitutional.

MBE Tip: This is usually the wrong answer, a teaser

Question 38

How to approach conlaw quesitons?

Answer 38

Ask who is doing it, fed or state or neither? If individual, then only the 13th amendment applies (individual trying to do slave-like things), unless (1) A private person carries on activities that are traditionally performed exclusively by the state; OR
(2) There are sufficient mutual contacts between the conduct of a private party and the government (this is a question of the degree of state involvement).
Otherwise, requires state action

ask what they are doing? (is it neutral, does it have intent, does it name individual or group)
ask why they are doing it?

Find the issue contained in the fact pattern, look for buzz words, shut up and pick it.

Don’t be afraid to miss a few MBE’s.

Question 40

Can state negligently violate DP clause?

Answer 40

No, only intentional (not negligent) deprivation of these rights violates the Due Process Clause.

Question 42

What scrutiny is applied to procedural DP?

Answer 42

No scrutiny. The trick is to know that you have the property right in the first place. If applying for law license, for example, you do not have property rights yet, but if they wanted to take it away after you got licensed, you have property right and have right to notice and hearing.

Howeve,r a three-part balancing test is used to determine if procedural DP triggered:

(1) The importance of the individual’s interest that is being affected; AND
(2) The value of specific procedural safeguards to that interest; AGAINST
(3) The government interest in fiscal and administrative efficiency.

Question 43

Must there be intent on government’s part for intermediate and strict scrutiny to be applied?

Answer 43

Yes. For strict or intermediate scrutiny to be applied, there MUST be intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is NOT enough to show governmental intent.

Question 44

Governmental intent may be shown by:

Answer 44

(1) A law that is discriminatory on its face;
(2) A discriminatory application of a facially neutral law; OR
(3) A discriminatory motive behind a facially neutral law.

Question 45

Affirmative Action 4.2%

When may states implement regulations to remedy past discriminatino?

Answer 45

States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination.

A race-based plan cannot be used to remedy general past “societal discrimination.”

Question 46

How does the court determine whether a regulation constitutes a taking? (Use this when not a per se taking)

Answer 46

In determining whether a regulation constitutes a taking, the Penn Central factors are considered:

(1) The **economic impact **of the regulation on the property owner;
(2) The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; AND
(3) The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property).

Question 47

What is considerd to be a per se taking?

Answer 47

A governmental regulation clearly results in a taking when the regulation results in a:

(1) Permanent physical occupation of the property (e.g., a law requiring a landlord to permit a cable company to permanently install equipment on the landlord’s property); OR
(2) Permanent total (or near total) loss of the property’s economic value (a regulation that results in a dramatic decline in the value of the property does not necessarily constitute a taking).

Note: requiring business to install floodlights does not amount to a physical occupation of property

Question 48

To what extent me a local government exact promises from a developer without violating the Takings Clause?

Answer 48

A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is:
(1) An essential nexus between legitimate state interests and the conditions imposed on the property owner; AND
(2) A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.

Question 49

For priv’s and immunities purposes, how are out-of-state citizens protected?

Examples?

Answer 49

a) Out-of-state citizens are protected against discrimination with respect to any fundamental rights or essential activities

(e.g., pursuit of employment, transfer of property, engaging in the political process, etc.).

Question 50

Priv’s and Immunities 4.2%

Discrimination against out-of-state citizens may be valid if the state can show…?

Answer 50

Discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:
(1) The out-of-state citizens either cause or are part of the problem that the state is attempting to solve; AND
(2) There are no less restrictive means to solve the problem.

Question 51

Contracts Clause less than 1%

Can states enact laws that affect future contracts?

Answer 51

Yes. The Contracts Clause limits the ability of states to enact laws that retroactively impair contract rights. It does NOT affect contracts not yet made.

There is no comparable clause applicable to the federal government; however, flagrant contract impairment would likely violate the 5th Amendment Due Process Clause.

Question 52

What level of scrutiny applied to violations of contracts clause?

Answer 52

State legislation that substantially impairs an existing private contract (a contract between private parties) is invalid unless the legislation passes intermediate scrutiny (e.g., the challenged law must further an important government interest by means that are substantially related to that interest).

State legislation that substantially impairs an existing public contract (a contract in which the state is a party) is tested by the same basic test as above, but will likely receive stricter scrutiny.

eg, state enters into contract with construction company, then repeals statute allowing for contract and repeals contract = state legislation that substantially impairs public contract with state, stricter scrutiny, repealing the statute is unconstitutional.

Question 53

What are types of ex post facto laws?

Answer 53

A statute retroactively alters a law in a substantially prejudicial manner if it:
(1) Makes criminal an act that was innocent when done;
(2) Prescribes greater punishment for an act than was prescribed when it was done; OR
(3) Reduces the evidence required to convict a person of a crime from what was required when the act was done.

Question 54

Free Speech

Does freedom of speach include the freedom not to speak?

Answer 54

a) The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto “live free or die” on a license plate).

Question 55

Does the freedom of speech apply to symbolic acts?

Answer 55

The freedom can extend to symbolic acts undertaken to communicate an idea (e.g., wearing a black armband to protest war), although the government may regulate such acts if:

(1) The government has an important interest independent of the suppression of speech; AND
(2) The incidental burden on speech is no greater than necessary to further that interest.

Question 56

What is keyword for overbreadth doctrine?

Answer 56

ALL

e.g., a regulation outlawing ALL 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause without first obtaining a permit

Question 57

What is standard for vagueness doctrine?

Answer 57

A statute or regulation is void for vagueness IF it does not put the public on reasonable notice as to what is prohibited.

if there is an operative word or phrase in a statute that is not defined=too vague.

Question 58

Prior restraints 4.2%

When are prior restraints allowed?

Answer 58

a) Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including:

(1) There is a particular harm to be avoided (e.g., restraining a newspaper from publishing troop movements).
(2) Procedural safeguards are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite).

Question 59

When do you know you’re dealing with a content-neutral question

Answer 59

Look for a regulation on speech that applies to the HOW, WHERE, WHEN and not just an unequivocal NO

aka conduct-based restrictions

Question 60

How may govt regulate speech in public forums and designated public forums?

Answer 60

The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:

(a) Are **content-neutral **(i.e., are subject matter and viewpoint neutral)
(b) Are **narrowly tailored **to serve an important government interest; AND
(c) Leave open alternative channels of communication.

Question 61

Are threats protected by freedom of speech?

Answer 61

No. a) True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out with an intent to intimidate).

Question 62

Are fighting words protected by freedom of speech?

Answer 62

Speech also can be limited if it constitutes fighting words. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely insulting or annoying are not enough.

Note: a) The Supreme Court will NOT tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).

Question 63

Commercial/business speech protected?

Answer 63

Yes, generally protected if truthful.

But if false, misleading, or fraudulent or promotes unlawful activity, may be restricted by law.

Business speech other than that listed above receives business related speech standard of scrutiny:
(1) directly advances, (2) a substantial governmental interest, (3) in a way that is reasonably tailored to achieve that objective.

Therefore, complete bans on truthful advertising of lawful products are very unlikely to be upheld due to a lack of narrow tailoring.

Note: false, misleading, illegal ads NOT PROTECTED

Question 64

1st amendment

What is the freedom of association?

Answer 64

Freedom of Association protects the right to form or participate in any group, gathering, club, or organization without government interference. However, the government may infringe upon this right if they can satisfy strict scrutiny.

Question 65

1st amendment

Under freedom of association, when may a person be punished or deprived of public employment based on their association?

Answer 65

A person may only be punished or deprived of public employment
based on association if that individual:
(1) Is an active member of a subversive organization;
(2) Has knowledge of the organization’s illegal activity; AND
(3) Has a specific intent to further those illegal objectives.

Question 66

What are some actions forbidden by free exercise clause?

Answer 66

FEC forbids:
(1) State governments from requiring office holders or employees to take a
religious oath;
(2) States from excluding clerics from holding public office; AND
(3) Courts from declaring a religious belief to be false.

Question 67

What do EP, DP, and priv’s and immun’s clauses all have in common?

Answer 67

They are all in the 14th amendment, and they all require state action (does not apply to federal govt)

No State shall make or enforce any law which shall abridge the **privileges or immunities **of citizens of the United States; nor shall any State deprive any person of **life, liberty, or property, **without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Question 68

What constitutional clause addresses affirmative action plans?
What level of scrutiny do these receive?

Answer 68

Equal protection requires race-based affirmative action plans to be subject to the same strict scrutiny as are governmental actions that intentionally discriminate against racial minorities.

Any governmental action that is explicitly race-based must be ‘‘necessary’’ to achieve a ‘‘compelling’’ governmental interest. Minority set-aside programs enacted by a city or state will be subjected to strict scrutiny and will usually be found unconstitutional on equal protection grounds.

Question 69

What is the text of the first amendment?

Answer 69

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.