Individual Liberties Flashcards
(182 cards)
1
Q
What is 13A?
A
13A prohibits slavery. Under 13A, Congress can prohibit racially discriminatory action by anyone.
2
Q
What does the Bill of Rights limit?
A
The Bill of Rights limits federal power.
3
Q
What is 14A?
A
14A prevents states from depriving any person of life, liberty, or property without due process and equal protection of the law.
4
Q
What is 15A?
A
15A prevents the federal government and the states from denying a person the right to vote on the basis of race.
5
Q
Do 14A and 15A regulate purely private conduct?
A
No, but the 13A or the Commerce Clause may.
6
Q
What is a valid Congressional law under 14A?
A
Congress must point to a history of state violation of an established right and adopt legislation that is congruent and proportional to solving the violation.
7
Q
What is state action for the purpose of the Constitution?
A
State action is action by the government, government officers, anyone who performs exclusively public functions (e.g. prisons), or anyone with significant state involvement (e.g. judicially enforcing a racially restrictive covenant).
8
Q
What is rational basis?
A
Under rational basis, a law is upheld if it is rationally related to a legitimate government purpose.
9
Q
Who has the burden of proof under rational basis?
A
The person challenging the law has the burden of proof.
10
Q
When is rational basis used?
A
Rational basis is used when classifications are not suspect or quasi-suspect and do not burden a fundamental right.
11
Q
What is intermediate scrutiny?
A
Under intermediate scrutiny, a law will be upheld if it is substantially related to an important government purpose.
12
Q
When is intermediate scrutiny used?
A
Intermediate scrutiny is used when a quasi-suspect classification is used.
13
Q
What is strict scrutiny?
A
Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose.
14
Q
Who has the burden of proof in intermediate scrutiny?
A
The law is unclear, probably the government.
15
Q
Who has the burden of proof in strict scrutiny?
A
The government has the burden of proof.
16
Q
When is strict scrutiny used?
A
Strict scrutiny is used when classifications are based on a suspect characteristic or when a fundamental right is burdened.
17
Q
What are suspect classifications?
A
Race, alienage (at state and local levels), national origin
18
Q
What are quasi-suspect classifications?
A
Gender, legitimacy
19
Q
What are common classifications that are not suspect or quasi-suspect?
A
Age, disability, poverty
20
Q
What are the requirements of procedural due process?
A
The requirements of procedural due process are
(1) notice
(2) an opportunity to be heard
(3) a neutral decisionmaker
21
Q
What notice is required to satisfy due process?
A
The notice must be reasonably calculated to inform the person of the deprivation.
22
Q
How is the type and extent of a deprivation hearing determined?
A
The type and extent of the hearing are calculated by balancing
(1) the importance of the interest to the individual, and
(2) the value of specific procedural safeguards to that interest, against
(3) the government interest in fiscal and administrative efficiency
23
Q
Must a claimant be given a pre-deprivation hearing?
A
Yes, unless it would be impracticable.
24
Q
What types of deprivations allow subsequent hearings?
A
Disability benefits, public employment, civil forfeiture of personal property, detention of enemy combatants
25
When is a decisionmaker neutral?
A decisionmaker is neutral if she does not have any actual bias or a serious risk of actual bias.
26
May procedural due process rights be waived?
Yes, procedural due process rights may be waived if the waiver is knowing and voluntary.
27
When must governmental fees be waived?
Governmental fees must be waived for indigent people when the fee would deny a fundamental right.
28
Which provision of the Constitution governs due process?
5A governs due process for the federal government.
14A incorporates due process to state and local governments
29
What are fundamental rights?
All 1A rights
Voting
Interstate travel
Privacy-related rights
30
When is an unenumerated right fundamental?
An unenumerated right is fundamental when it is deeply rooted in the nation's history and tradition and essential to the concept of ordered liberty.
31
What is the difference between substantive due process and equal protection?
Substantive due process applies when a law limits the rights of all persons to engage in some activity.
Equal protection applies when a law treats a person or class of persons differently than others.
32
How many people must be in a class before equal protection is triggered?
A single person who is treated arbitrarily can be a class, except when the claim is made by an at-will employee.
33
Is there a fundamental right to an abortion?
No.
34
Are bans on interracial marriage and same-sex marriage constitutional?
No, marriage is a fundamental right and these bans fail strict scrutiny.
35
May the government limit a prisoner's right to marry?
Yes, a statute may restrict a prisoner's right to marry if the statute is reasonably related to a legitimate penological interest.
36
May a state set an age requirement for marriage?
Yes, age regulations that don't substantially burden the right to marry are subject to rational basis review.
37
Is there a fundamental right to procreation?
Yes.
38
Can a state prohibit the distribution of contraceptives to minors?
No.
39
What are the fundamental rights of parents?
The rights of parents include the companionship, care, custody, and upbringing of children.
40
What is the right to keep extended family together?
A family has a fundamental right to live together. The right does not extend to unrelated people.
41
Does the right to privacy extend to reading obscene material?
Unless the material is child pornography, a person is free to read obscene material in his home.
42
Is there a right to privacy in the accumulation of names and addresses of people who have been prescribed dangerous drugs?
No.
43
What is the fundamental right of interstate travel?
An individual has a fundamental right
(1) to travel from state to state and
(2) to be treated equally after moving to a new state
44
Does the right to interstate travel extend to international travel?
No, but international travel is protected from arbitrary federal interference by 5A.
45
Are residency requirements to vote valid?
A statute requiring 30 days residency was upheld. A statute requiring 1 year residency was invalidated.
46
What restrictions on the right to vote are permissible?
Restrictions on age, residence and citizenship are acceptable. Anything else is subject to strict scrutiny.
47
May the right to vote or hold office be conditioned on owning property?
No, except for special purpose elections.
48
Can Congress override state residency requirements in elections?
Yes, in federal elections
49
May a state require voter identification to vote?
Yes.
50
Are poll taxes permissible?
No, poll taxes are unconstitutional
51
Can states require early registration to vote in primaries?
Yes.
52
Can states prohibit states from opening their primaries up to voting by anyone?
No.
53
When does the one person, one vote principle apply?
The one person, one vote principle applies when any level of government decides to select representatives by a popular election from individual districts.
54
What is one person, one vote in state and local elections?
In state and local elections, the populations of voting districts must be substantially equal.
55
How much variance in population is allowed in voting districts in state and local elections?
Less than 10% is presumptively valid.
56
How much variance in population is allowed in voting districts in federal elections?
States must use almost mathematical equality to create congressional districts.
57
Is population for voting districts determined by the number of voters in a district?
States do not have to count only people eligible to vote. They can use total population.
58
Must one person, one vote apportionment be used in at large elections or where officials are appointed?
No.
59
Is racial gerrymandering permitted?
Race cannot be the predominant factor in drawing districts.
60
Is political gerrymandering subject to judicial review?
No. Political gerrymandering is considered a nonjusticiable political question.
61
Can states use independent commissions to draw congressional districts?
Yes.
62
May a state charge a candidate a fee to run for office?
A state can't impose a fee that would make it impossible for an indigent person to run for office.
63
May a state place restrictions on the ability to run for office?
A state regulation must be reasonable, nondiscriminatory means to promote important state issues. Also, a state can require a candidate show reasonable support.
64
Can a state allocate more funds to the major parties than minor parties?
Yes.
65
What is 2A?
2A protects the right of individuals to bear arms for self defense at home and in public,
66
May a state require gun permitting?
Yes, as long as the criteria for permits are clear. A law that gives an official discretion to issue a permit is unconstitutional.
67
What is the 2A standard of review?
The government must justify a regulation by showing that it is consistent with the country's historical tradition of firearm regulation.
68
What is the right to fair notice?
A regulation that fails to give fair notice violates due process,
69
Is there a right to intimate sexual contact?
The state has no legitimate interest in criminalizing private, intimate sexual conduct that is not commercial in nature.
70
Is there a right to refuse medical treatment?
A mentally competent adult can refuse medical treatment as part of that person's liberty under 5A and 14A.
71
Is there a right to physician-assisted suicide?
No.
72
Is there a right to refuse vaccinations?
No. A state can compel vaccinations against contagious diseases,
73
When do equal protection issues arise?
Equal protection issues arise when the government treats some people differently than others.
74
Does the Equal Protection Clause of 14A apply to the federal government?
No, the Due Process Clause of 5A includes an equal protection component which is applicable to the federal government.
75
What must be shown for strict or intermediate scrutiny to apply based on discrimination?
There must be an intent on the part of the government to discriminate. This may be shown by
(1) a law that is discriminatory on its face,
(2) a discriminatory application of a facially neutral law, or
(3) a facially neutral law with a disparate impact on a protected class.
If the law is facially neutral, the discriminatory intent must be shown.
76
Does school segregation violate equal protection?
Yes, but there is no violation if school zones are established in a racially neutral manner and housing patterns result in an imbalance.
77
Must a school board remedy segregation?
Yes. The school board must take steps to eliminate the effect of discrimination.
78
Does promoting diversity satisfy strict scrutiny?
No. Assigning students to primary and secondary schools on the basis of race to promote diversity does not satisfy strict scrutiny.
79
May the government favor ethnic or racial minorities?
No. A benign law that discriminates in favor of a suspect classification triggers strict scrutiny just as a law that discriminates against the suspect classification.
80
When does the government action in favor of a group on the basis of racial or ethnic minority status survive strict scrutiny?
The government has a compelling interest in remedying the effects of past discrimination that was persistent and readily identifiable.
81
Is having a diverse student body a compelling interest for universities in admission decisions?
No. The interest is not compelling enough to overcome strict scrutiny.
82
Are federal alienage classifications subject to strict scrutiny?
No, because of Congress's plenary power over aliens, federal classifications are valid as long as they are not arbitrary and unreasonable.
83
When does state discrimination based on alienage trigger rational basis rview?
Rational basis review is used when a law discriminates against an alien participating in state government (voting, jury service, elected office) and for laws limiting non-elective offices involving important public policy (police, probation, K-12 school)
84
Are undocumented aliens a suspect classification?
No.
85
What standard of review is used for classifications involving undocumented aliens?
Rational basis.
86
May a state deny free public education to undocumented alien children?
No.
87
What is the burden of proof for gender classifications?
The government must show an "exceedingly persuasive justification" for gender discrimination.
88
Are gender classifications based on stereotypes upheld?
Generally, gender classifications based on stereotypes are invalid.
89
Are gender classifications to remedy past discrimination valid?
Gender classifications to remedy past discrimination may be upheld under intermediate scrutiny.
90
Are discriminatory regulations intended to punish nonmarital children valid?
No.
91
Will a law based on animus survive rational basis review?
No, if animus is the only reason to deny a benefit or impose a burden on a group.
92
What is the taking clause of 5A?
Private property may only be taken (1) for public use and (2) the government must pay just compensation.
93
What property is subject to the taking clause?
Personal property, real property, intangibles like interest on attorney trust accounts and trade secrets.
94
When is does a taking occur?
A taking will be found if there is
(1) a confiscation of a person's property, or
(2) a permanent or regular physical occupation of a person's property by the government.
95
Can a temporary invasion be a taking?
Yes, depending on factors like the degree of invasion, duration, government intent, foreseeability of the result, characteristics of the property and interference with the use.
96
Is conditioning a building permit on conveying title or granting an easement a taking?
Yes, unless (1) the government ca show an essential nexus between the condition and the development and (2) the adverse impact on the development is proportional to the loss caused to the property owner from the forced transfer
97
Is a taking likely to be found during a public emergency?
No.
98
Is denying economically viable use of land a taking?
Yes, if the denial is permanent, unless principles of nuisance or property law make the use prohibitable.
99
Is a temporary denial of economically viable use of land a taking?
A temporary denial can be a taking, based on all relevant circumstances.
100
Does a regulation decreasing the value of property amount to a taking?
No, as long as an economically viable use remains.
101
When is a taking for a public use?
A taking is for a public use when it rationally relates to a legitimate purpose such as health, welfare, safety, economic or aesthetic reasons.
102
Are takings by private enterprises allowed?
Yes, if they work to the public advantage.
103
What is just compensation?
Just compensation is the fair market value at the time of the taking.
104
What is inverse condemnation?
When property is taken by occupation or regulation without condemnation, the landowner can bring an action for inverse condemnation.
105
What happens if inverse condemnation is found by a court?
The government can either pay the property owner just compensation or terminate the regulation and pay damages.
106
What is the Contract Clause?
The Contract Clause limits the ability of state and local governments to retroactively impair contract rights.
107
Does the Contract Clause apply to the federal government?
No.
108
What level of review is given to private contracts under the Contracts Clause?
Legislation that substantially impairs private contract rights is subject to intermediate scrutiny. The legislation is invalid unless it serves an important and legitimate public interest and is reasonable and narrowly tailored to promote that public interest.
109
What level of review is given to public contracts under the Contracts Clause?
Legislation that substantially impairs public contract rights is subject to heightened scrutiny. The legislation is invalid unless it serves an important and legitimate public interest and is reasonable and narrowly tailored to promote that public interest.
110
What is an ex post facto law?
An ex post facto law retroactively alters a criminal offense in a substantially prejudicial manner.
111
When does a law alter a criminal offense in a substantially prejudicial manner?
A law alters a criminal offense in a substantially prejudicial manner when
(1) it makes criminal an act that was innocent when done
(2) it imposes greater punishment for an act than was imposed when the at was done, or
(3) it reduces the evidence required to convict a person of a crime
112
Which government entities do ex post facto restrictions apply to?
The federal government and the states
113
What is a bill of attainder?
A bill of attainder is a legislative act that inflicts punishment on an individual without a judicial trial.
114
Are bills of attainder permitted?
No. Neither the federal government nor the states may pass bills of attainder
115
What is speech?
Speech includes words, symbols, and expressive conduct.
116
What is expressive conduct?
Expressive conduct is conduct that is inherently expressive or conduct (1) intended to convey a message and (2) reasonably likely to be perceived as conveying a message.
117
What is incitement?
Incitement is (1) intended to produce imminent lawless action and (2) likely to produce such action.
118
What are fighting words?
Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person
119
What are true threats?
True threats are intended to convey to someone a serious threat of bodily harm. Speaker must have subjective understanding their threats were of that nature or have been reckless.
120
What is obscenity?
Obscenity depicts sexual conduct that, taken as a whole, to average person
(1) appeal to the prurient interest in sex, using a contemporary community standard,
(2) is patently offensive under contemporary community standards, and
(3) lacks serious value using a national, reasonable person standard
121
Can possession of obscene material in the home be punished?
No, except for child pornography.
122
Can simulate pictures of minors engaged in sexual activity be banned?
No, as long as the content uses young looking adults or computer-generated images.
123
Is obscene the same for adults and minors?
No. States can adopt a different definition of obscenity for minors. States can't prohibit the sale or distribution of materials to adults just because it's inappropriate for children.
124
May adult entertainment establishments be limited?
Zoning can limit the location or size of adult entertainment establishments if the regulation is designed to control the secondary effects of those businesses. They can't be banned altogether.
125
What does 1A require for defamation?
If the statement is about
a public figure or official or a matter of public concern, 1A requires all of the elements of defamation plus fault and falsity.
126
What is a public official?
A public official is someone holding or running for office, and public employees.
127
Who are public figures?
Public figures have assumed roles of prominence in society, achieved fame or notoriety, or thrust themselves into a particular public controversy.
128
What is a matter of public concern?
A matter of public concern is an issue important to society or democracy.
129
How are matters of public concern determined?
Matters of public concern are determined by their content, form, and context.
130
Is 1A triggered by a private figure suing for defamation on a matter of private concern?
No.
131
What does 1A require for IIED when the plaintiff is a public figure or official or where the speech is on a matter of public concern?
To prevail on IIED in this situation, the plaintiff must show actual malice.
132
When is commercial speech not protected by 1A?
Commercial speech is not protected when it is false, misleading, or about illegal products or services.
133
When will regulations on commercial speech be upheld?
A regulation on otherwise permissible commercial speech will be upheld only if it
(1) serves a substantial government interest
(2) directly advances that interest
(3) is narrowly tailored to serve that interest (in this context, must be a reasonable fit)
134
May the government require commercial speakers to make advertising disclosures?
Yes, as long as the disclosures are not unduly burdensome and they are reasonably related to the state's interest in preventing deception.
135
What is the standard of review for content-based speech regulations?
Content-based regulations are presumed unconstitutional and are subject to strict scrutiny.
136
When is a regulation content-based?
A regulation is content-based when it restricts speech based on the subject matter or viewpoint of the speech.
137
What is a content-neutral restriction on speech?
A content-neutral restriction is subject matter and viewpoint neutral.
138
What level of scrutiny applies to content-neutral restrictions on speech?
Intermediate scrutiny. The restrictions must advance an important interest unrelated to suppressing speech and be narrowly tailored (not burden substantially more speech than necessary).
139
What does the extent to which the government can restrict speech on government property depend on?
The extent to which the government can restrict speech on government property depends on whether the property is a public forum, limited public forum, or designated public forum, or nonpublic forum.
140
What is a public forum?
A public forum is property that has historically been open to speech-related activities like streets, sidewalks, and parks.
141
What is a designated public forum?
A designated public forum is one that has not historically been open to speech-related activities but which the government has thrown open for such activities on a permanent or limited basis.
142
What level of scrutiny is given to restrictions on speech in a designated public forum or a public forum?
Restrictions on speech in a designated public forum or a public forum are subject to strict scrutiny, if content-based and intermediate scrutiny, if content-neutral.
143
When does a restriction on speech in a designated public forum or a public forum meet intermediate scrutiny?
Intermediate scrutiny is met when the restriction is narrowly tailored to serve an important government interest and it leaves open alternative channels of communication.
144
Are injunctions on speech in traditional public forums or designated public forums treated differently than other restrictions on speech?
No.
145
What is a limited public forum?
A limited public forum is a government forum not historically held open for speech and assembly but is opened for specific speech activity, like a courtroom.
146
What is a nonpublic forum?
A nonpublic forum is a government property not historically open generally for speech and assembly and not held open for specific speech activity.
147
When are restrictions on speech valid in limited public forums and nonpublic forums?
Restrictions on speech are valid in limited public forums and nonpublic forums when they are viewpoint neutral and reasonably related to a legitimate government purpose.
148
What happens if a restriction on speech in a limited public forum or a nonpublic forum is not viewpoint neutral?
The restriction is subject to strict scrutiny.
149
What kind of forum are primary and secondary schools?
Primary and secondary schools are not public forums.
150
May a primary or secondary school restrict a student's personal speech on campus?
A student's own personal speech (the expression of themselves as individuals) on campus cannot be censored, absent substantial disruption or unless illegal drugs are depicted.
151
May a primary or secondary school restrict a student's personal speech off campus?
A school may restrict speech off campus to prevent cheating, bullying, threats, and other speech where pedagogical or safety interest clearly outweigh the speech interests.
152
May a primary or secondary school restrict a speech related to school teachings (e.g. restrictions on what student can publish as part of journalism class)?
Restrictions on speech related to the school's teachings must be reasonably related to legitimate pedagogical concerns.
153
When is there no 1A protection at all for a government employee's speech?
The government employer can punish the employee's speech when
(1) it involves a matter of private concern and is disruptive or
(2) the speech is made on the job, pursuant to official duties.
154
When is a government employee's speech protected by 1A?
A government employee's speech is protected
(1) if the speech is made on a matter of public concern, not made pursuant to official job duties or
(2) the speech concerns a matter of private concern and does not have a detrimental effect on the workplace.
155
May the government prohibit employees from taking part in political campaigns?
The federal executive branch may prohibit federal executive branch employees form taking an active part in political campaigns.
156
May the government prohibit employees from receiving honoraria?
A ban on receiving honoraria violates 1A as applied to "rank and file" government employees.
157
May a government employee be hired, fired, prompted, etc. based on political party affiliation?
No, unless the job is a policy-making position where party affiliation and views are relevant.
158
Are loyalty oaths allowed?
The government can require loyalty oaths as long as they aren't overbroad or vague.
159
What is an example of an overbroad loyalty oath?
An oath which prohibit membership in the Communist party or which advocates overthrowing the government as an abstract doctrine is overbroad.
160
What types of loyalty oaths are valid?
A loyalty oath to support the Constitution and oppose the unlawful overthrow of the government is valid.
161
What types of loyalty oaths are invalid?
A loyalty oath requiring public employees to support the flag is invalid.
162
Can the government force employees to disclose their organizational affiliations?
The government may not force employees to disclose their organizational membership or affiliations. It can only inquire into those relevant to employment being sought.
163
What is void for vagueness?
If a criminal law or regulation fails to give persons reasonable notice of what is prohibited, it may violate due process. It applies more strictly when 1A activity is involved.
164
When is a regulation of speech invalid for overbreadth?
A regulation of speech is overbroad and will be invalidated if it punishes substantially more speech than is necessary.
165
What happens if a regulation of speech is overbroad?
An overbroad regulation is facially invalid unless a court has limited construction so as to remove the threat to constitutionally protected expression.
166
What happens if a regulation of speech is overbroad, but not substantially overbroad?
If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected.
167
What is a prior restraint?
A prior restraint is a court or administrative order that prevents speech before it occurs rather than punishing it after.
168
Are prior restraints favored?
No, and particularly not if they are content-based
169
Who has the burden of proof for a prior restraint?
The government has the burden of proof (strict scrutiny if content-based and intermediate scrutiny if content neutral). Some special societal harm must justify the restraint.
170
When is a prior restraint valid?
A prior restraint is valid if it has procedural safeguards:
(1) the standards are narrowly drawn, reasonable and definite,
(2) the injunction is promptly sought, and
(3) there must be a prompt and final determination of the validity of the restraint
171
Can a statute give an official discretion over speech issues?
A statute that gives unfettered discretion to an official is void on its face.
172
Must a speaker seek a permit and be denied to challenge it?
If the statute gives an official unfettered discretion, no. If there are standards, the speaker must apply for the permit and be denied to challenge it.
173
Does the press have greater rights under 1A than a private citizen?
Generally, the press has the same 1A rights as a private citizen.
174
May the press publish information about matters of public concern?
Yes, as long as the information is truthful.
175
Does the press have the right to attend criminal trials?
The public and the press have the right to attend criminal (and probably civil) trials. The right may be outweighed by an overriding interest.
176
Must the press testify before grand juries?
Yes.
177
May the press interview prisoners or inspect prisons?
Yes, but 1A does not give them a right to do so.
178
Can the press be subject to special taxes?
The press can be subject to general business taxes. They can't be targeted for special taxes.
179
Does the government itself have 1A protection?
1A does not apply to government speech.
180
What level of scrutiny is given to government speech?
Generally, it gets rational basis.
181
May the government compel a person to speak?
No. Freedom of speech includes the right not to speak.
182
What is freedom of association?
Freedom of association is an implied right to allow people to join politically unpopular groups.
