Individual Liberties

Question 1

Bill of Rights

Answer 1

First 10 amendments. Limit FEDERAL power. But, 14th amendment applies almost all provisions of the BoR to the states

Exceptions: (1) Fifth Amendment prohibition of criminal trials w/o grand jury indictment and (2) Seventh Amendment’s right to jury trial in civil cases

Question 2

Thirteenth Amendment

Answer 2

Prohibits slavery and involuntary servitude.

Enabling Clause – Congress can regulate laws to prohibit private discrimination by ANYONE, including private citizens

Question 3

Commerce clause and individual liberties

Answer 3

Under CC, Congress may prohibit PRIVATE racial discrimination in activities that might have a substantial effect on interstate commerce

Question 4

State Action Requirement

Answer 4

“state action” must usually be shown to show a constitutional violation

Question 5

Exceptions to State Action Requirement

Answer 5

Exclusive public function: Constitution will apply to a private entity if it is performing a task traditionally, exclusively done by the government (running a town, conducting elections, but utility services are not traditionally public services)

Significant state Involvement (entanglement): When government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Must be “significantly involved.” mere acquiescence is not enough
Ex: enforcing racially restrictive covenants, leasing premises to a private entity that racially discriminates (symbiotic relationship), providing books to schools that racially discriminate
Ex of not: granting monopoly to utility, regulating an industry, granting a corp its name and charter, granting liquor license to a racist private club, regulating state sports

Question 6

Rational Basis Test

Answer 6

Challenger must show that the law is not rationally related to a legitimate government purpose

Question 7

Intermediate Scrutiny

Answer 7

Government must show that the law is substantially related to an important government interest

Question 8

Strict Scrutiny

Answer 8

Government must show that the law is necessary to achieve a compelling government interest. Also requires that it is the least restrictive alternative and narrowly tailored.

Question 9

Procedural Due Process

Answer 9

A fair process (notice and a hearing) is required for a government agency to individually take a person’s life, liberty, or property.

Government negligence is insufficient for violating due process. Generally must have INTENTIONAL government action or at least recklessness

Question 10

Liberty

Answer 10

More than freedom from bodily restraints.
Deprivation of liberty occurs if a person (1) loses significant freedom of action; or (2) is denied a freedom provided by the Constitution or a statute

Question 11

Property

Answer 11

More than personal property and realty. Something the person has a legitimate claim of entitlement to.

Includes public school attendance, welfare benefits, and government employment

Question 12

Type of Procedure Balancing Test

Answer 12

(1) the importance of the interest to the individual
(2) ability and value of procedural safeguards to protect that interest, and
(3) the government interest in fiscal and administrative efficiency

Notice and chance to respond before termination are usually required.

Fair procedures and an unbiased decisionmaker will ALWAYS be required

Question 13

Welfare benefits termination

Answer 13

notice and hearing before

Question 14

Mental institution commitment

Answer 14

adults require prior notice and hearing (except for emergency) and children require prior screening by a neutral fact finder

Question 15

Disability benefits

Answer 15

prior notice and opportunity to respond, and subsequent hearing

Question 16

Public Employment (for cause termination)

Answer 16

prior notice and opportunity to respond, and subsequent evidentiary hearing

Question 17

Public education (suspension or expulsion)

Answer 17

prior notice and opportunity to respond. NO HEARING REQUIRED

Question 18

Driver’s License Suspension

Answer 18

Prior evidentiary hearing

Exception: breathalyzer test suspension statutes

Question 19

Termination of custody rights

Answer 19

prior notice and prior hearing

Question 20

Civil forfeitures of property

Answer 20

Real property: prior notice and hearing

Personal property: subsequent notice and hearing

Question 21

Punitive damages

Answer 21

instructions to jury and judicial review for reasonableness

Question 22

American Citizen held as an enemy

Answer 22

subsequent notice and a meaningful opportunity to contest the factual basis for detention before a neutral factfinder

Question 23

The Takings Clause

Answer 23

Under Fifth Amendment, private property may not be taken for public use without just compensation

“Public use”: must have a reasonable belief that its action will benefit the public

Question 24

Possessory Taking

Answer 24

Government confiscation or physical occupation of property (any size at all). Almost certainly will be a total taking.

Question 25

Regulatory taking

Answer 25

Government regulation that leaves no reasonable economically viable use of the property is a TOTAL taking Temporary regulatory taking -- Court will weigh all circumstances to determine whether fairness and justice require just compensation. If reasonable, not a taking. Partial Taking -- Decreasing Economic Value -- regulations that merely decrease value of land or prohibit beneficial use do not amount to a taking if they leave an economically viable use. Balancing test of (1) social goals sought to be promoted; (2) diminution in value of the owner; and (3) whether the regulation substantially interferes with DISTINCT, INVESTMENT BACKED EXPECTATIONS of the owner

Question 26

Just Compensation

Answer 26

If amounts to a taking, government must either: (1) pay the property owner just compensation for the property; or (2) terminate the regulation and pay the owner for damages that occurred while the regulation was in effect Just compensation measured as FMV of property at the TIME of the taking. Based on loss to owner. Increases since the taking are not considered

Question 27

Contracts Clause

Answer 27

No state shall impair the obligation of contracts Applies only to state or local interference with existing contracts. DOES NOT APPLY TO FEDERAL GOVERNMENT Intermediate scrutiny applied: does the legislation substantially impair a party's rights under an existing K? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate gvt interest? If interferes with a GOVERNMENT K, must meet strict scrutiny

Question 28

Ex Post Facto Laws

Answer 28

State or federal gvt may not pass a law that retroactively alters criminal offenses or punishments to punish conduct that was lawful when it was done, increase punishment for a crime after it was committed, or reduce evidence required to convict) Applies only to CRIMINAL cases

Question 29

Privacy Rights invoking SS (fundamental Rights)

Answer 29

Right to privacy, which includes: the right to MARRY, right to PROCREATE, right to CUSTODY OF ONE'S CHILDREN, right to KEEP THE FAMILY TOGETHER, right to CONTROL UPBRINGING OF ONE'S CHILDREN, right to USE CONTRACEPTIVES, right to ABORTION, right to PRIVATE HOMOSEXUAL ACTIVITY, right to REFUSE MEDICAL TREATMENT

Question 30

Right to Abortion (Fundamental Right)

Answer 30

Prior to viability, state smay not prohibit abortions, but may regulate so long as they do not create an undue burden on the ability to obtain abortions Ex: 24 hr waiting period, performance by licensed physicians, prohibition of partial birth abortions all not undue burdens After viability, states MAY prohibit abortions unless NECESSARY to protect woman's life or health No gvt duty to subsidize or provide abortions Spousal consent and notification laws are unconstitutional as undue burden

Question 31

Right to Vote (Fundamental Right)

Answer 31

Laws that deny citizens right to vote must meet strict scrutiny One person one vote must be met for ALL state and local elections Congressional Elections: states must use almost exact mathematical equality State and Local elections: variance in the # of persons included within districts must not be more than a few percentage points. Exception: no apportoinment requirement for "at large" elections

Question 32

Gerrymandering

Answer 32

Race cannot be the predominant factor in drawing boundaries of voting districts unless pass SS

Question 33

Fundamental Rights

Answer 33

If denied to everyone, SUBSTANTIVE DUE PROCESS issue. If denied to some individuals, EQUAL PROTECTION issue Strict Scrutiny applied either way if violated

Question 34

Obscene reading material

Answer 34

right to privacy includes freedom to read obscene material in one's home, except for child pornography still no right to sell, purchase, or transport though

Question 35

Right to Travel

Answer 35

Right to migrate from state to state and be treated equally moving into a new state International travel is NOT a fundamental right. Thus RB is applied

Question 36

Residency Requirements

Answer 36

one year residency to receive full welfare INVALID one year residency to receive state subsidized medical care INVALID one year residency to vote in state INVALID 30 day residency to vote in state VALID one year residency to get divorced VALID

Question 37

Not Fundamental Rights and thus RB applied

Answer 37

Right to international travel, right to practice a trade or profession, right to physician assisted death, right to education

Question 38

Substantive Due Process

Answer 38

a law that limits liberty of ALL persons to engage in some activity will trigger substantive due process DP clause of 5th amendment applies to fed gvt. due process of 14th amendment applies to state and local gvts. Same tests for both.

Question 39

Equal Protection

Answer 39

Law treats a person or class of persons differently, it is an equal protection problem Fundamental rights or suspect class -- Strict Scrutiny Quasi suspect classifications -- Intermediate Scrutiny Everything else -- Rational Basis

Question 40

Suspect Class

Answer 40

race, national origin, alienage

Question 41

Quasi-suspect classification

Answer 41

gender and legitimacy

Question 42

Not suspect or quasi-suspect (RB)

Answer 42

age, disability, poverty, sexual orientation Only discriminatory impact if facially neutral

Question 43

Race classifications

Answer 43

If facially neutral, must show DISCRIMINATORY INTENT and DISCRIMINATORY IMPACT. If neither present, then RB is used. Ex: school segregation violates EP, but if racially neutral zoning, no violation. Mere imbalance won't be enough to violate EP. NOTE: laws that FAVOR racial or ethnic minorities is subject to same SS standard is discrimination Ex: remedying past discrimination is fine if persistent and readily identifiable.

Question 44

Alienage Classifications

Answer 44

Federal alienage classifications are NOT subject to strict scrutiny bc of Congress plenary powers over aliens. Must be not arbitrary and unreasonable State laws are subject to SS Exception: Alien participation in state government (voting, jury service, elective office, police officer, teacher) UNDOCUMENTED aliens are not suspect class and subje tot just RB review (except still righ tto public education)