Individual Liberties - intro and procedural due process

Question 1

To show a constitutional violation, what must be involved?

Answer 1

“state action”

Question 2

what constitutes state action?

Answer 2

action taken by gov. and gov. officers at all levels.

seemingly private individuals who perform exclusive public functions or have significant state involvement

Question 3

exclusive public functions

Answer 3

activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them

Question 4

entanglement

Answer 4

State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens

Question 5

Court enforcing racially restrictive covenants. State action?

Answer 5

Yes

Question 6

gov. leases premises to a restaurant that racially discriminates. State action?

Answer 6

Yes

Question 7

State provides books to schools that racially discriminate. State action?

Answer 7

Yes

Question 8

private school that is over 99% funded by the government fires a teacher because of speech. State action?

Answer 8

No

Question 9

NCAA orders suspension of a basketball coach at a state university. State action?

Answer 9

No

Question 10

private entity regulates high school interscholastic sports within a state where the association is whose governing body is made up mostly of public school officials; whose meetings are held during regular school hours; whose employees may join the state retirement system; and which is funded by gate receipts from the regulated sports. State action?

Answer 10

Yes

Question 11

private club with a liquor license from the state racially discriminates. State action?

Answer 11

No

Question 12

Bill of Rights provisions that do NOT extend to the states via the 14th amendment

Answer 12

3rd amendment right to not quarter a soldier in your home

5th amendment prohibition of criminal trials without a grand jury

7th amendment right to jury trial in civil cases

Question 13

13th amendment - generally

Answer 13

prohibits slavery and involuntary servitude (compulsion of labor through the use or threat of physical or legal coercion)

Question 14

13th amendment Enabling Clause

Answer 14

Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).

Question 15

14th Amendment

Answer 15

prevents STATES from depriving any person of life, liberty, or property without due process and equal protection of law

Question 16

15th Amendment

Answer 16

prevents federal, state, and local governments from denying a citizen the right to vote on account of race or color

Question 17

Section 5 of the Fourteenth Amendment

Answer 17

gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment

may not expand existing constitutional rights or create new ones—it may only enact laws to prevent or remedy violations of rights already recognized by the courts.

Question 18

To adopt a valid law, Congress must

Answer 18

must point to a history/pattern of state violation and adopt legislation that is congruent and proportional (narrowly tailored) to solving the identified violation.

Question 19

Commerce Clause

Answer 19

Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.

Question 20

Rights of National Citizenship

Answer 20

Congress has inherent power to protect rights of citizenship (ex. interstate travel, assembly, and the right to petition Congress for redress)

Question 21

Rational basis scrutiny - type of regulations applied to

Answer 21

do not affect fundamental rights and do not involve suspect or quasi-suspect classifications

Classifications scrutinized under rational basis include age, disability, poverty

Question 22

Rational basis scrutiny standard

Answer 22

upheld if it is rationally related to a legitimate government purpose.

usually be valid unless it is arbitrary or irrational.

Question 23

Rational basis scrutiny - burden of proof

Answer 23

person challenging the law

Question 24

intermediate scrutiny - type of regulations applied to

Answer 24

Regulations involving quasi-suspect classifications

examples include: gender, distinctions between marital and nonmarital children

Question 25

intermediate scrutiny - standard

Answer 25

law is upheld if it is substantially related to an important government purpose.

Question 26

intermediate scrutiny - burden of proof

Answer 26

government has the burden of proof

Question 27

strict scrutiny - type of regulations applied to

Answer 27

Regulations affecting fundamental rights (interstate travel, privacy, voting, and First Amendment rights) OR involving suspect classifications (race, national origin, alienage)

Question 28

strict scrutiny - standard

Answer 28

law is upheld only if it is necessary to achieve a compelling government purpose. often invalidated—especially if there is a less burdensome alternative to achieve the government’s goal.

Question 29

strict scrutiny - burden of proof

Answer 29

government has the burden

Question 30

when procedural due process is violated

Answer 30

intentional or reckless government action in procedures when it takes away life, liberty, or property

Question 31

In emergency situations, the government is liable under the due process rules only if

Answer 31

conduct “shocks the conscience.”

Question 32

Approach to procedural due process issue

Answer 32

1. Has there been a deprivation of life, liberty, or property? 2. If yes, what procedures are required?

Question 33

liberty deprivation occurs if:

Answer 33

occurs if there is a loss of a significant freedom provided by the Constitution or a statute.

Question 34

property deprivation occurs if:

Answer 34

there is an entitlement and that entitlement is not fulfilled. An entitlement exists if there is a reasonable expectation that a benefit will continue.

Question 35

balancing test to determine type and extent of procedures required under Due Process

Answer 35

1. importance of the interest to the individual, 2. ability of additional procedures to improve the accuracy of the fact-finding against 3. government interest (usually focused on fiscal and administrative efficiency)

Question 36

Before welfare benefits are terminated, there must be

Answer 36

notice and a hearing

Question 37

When Social Security disability benefits are terminated, there must be

Answer 37

only a post-termination hearing

Question 38

Before a school can discipline a student, there must be

Answer 38

notice of the charges and an opportunity to explain

Question 39

Before a parent’s right to custody of a child can be permanently terminated, there must be

Answer 39

notice and a hearing

Question 40

Punitive damage awards require

Answer 40

instructions to the jury and judicial review to ensure reasonableness

Question 41

For an American citizen to be detained as an enemy combatant, there must be

Answer 41

notice of the charges against him, representation by a lawyer, and a meaningful factual hearing

Question 42

Except in exigent circumstances, prejudgment attachment or government seizure of assets require

Answer 42

notice and a hearing

Question 43

civil forfeiture - if real property the government must

Answer 43

provide the owner notice and an opportunity for some type of hearing prior to seizing it

Question 44

civil forfeiture - if personal property the government

Answer 44

may be able to seize it prior to providing the owner a hearing, since personal property can be hidden or destroyed

Question 45

due process waiver

Answer 45

As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.

Question 46

indigent Ps - rule on gov. fees

Answer 46

gov. fees must be WAIVED when fee would deny a fundamental right to the indignent EX. marriage license, divorce court filing BUT NOT. bankruptcy discharge fees, fees for review of welfare termination

Question 47

taking clause - generally

Answer 47

The Fifth Amendment provides that the government may take private personal or real property for public use if it provides just compensation. This rule applies to the states via the Fourteenth Amendment.

Question 48

To analyze a Takings Clause question, ask

Answer 48

1. is there a taking? 2. Is it for public use? 3. Was just compensation paid?

Question 49

An actual or physical appropriation of property - taking or regulation?

Answer 49

almost always a taking, even if temporary Exception: Emergency situations

Question 50

If government regulation denies a landowner of ALL economically viable use of their land - regulation or taking?

Answer 50

Taking

Question 51

If government regulation TEMPORARILY denies a landowner of ALL economically viable use of their land - regulation or taking?

Answer 51

Court weighs all relevant circumstances (planners' good faith, reasonable expectations of owner, length of delay, actual effect on value) to determine whether "fairness and justice" require just compensation

Question 52

If government conditions development of property (decreasing economic value) - regulation or taking?

Answer 52

Taking UNLESS justified by a benefit that is roughly proportionate to the burden imposed mere decrease usually not taking if they leave an economically viable use for the property.

Question 53

(exactions) condition imposed by a government on a property owner or developer to dedicate land or pay money to the government in exchange for a permit to develop or use the property - taking or regulation?

Answer 53

Taking UNLESS: 1. essential nexus between the condition and the proposed development AND 2. adverse impact of the proposed development is roughly proportional to the loss caused to the property owner

Question 54

inverse condemnation - what is it?

Answer 54

When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.

Question 55

inverse condemnation - if taking is found government must:

Answer 55

1. Pay just compensation OR 2. Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (temporary taking damages).

Question 56

What constitutes public use?

Answer 56

rationally related to a legitimate public purpose (for example, for health, welfare, safety, economic, or aesthetic reasons). Authorized takings by private enterprises are included if they are for the public advantage (for example, railroads and public utilities).

Question 57

How is just compensation measured?

Answer 57

loss to the owner, not the gain to the taker typically fair market value at time of taking

Question 58

Contract Clause - generally

Answer 58

No state shall impair the obligations of contracts.

Question 59

Contracts Clause - applies to what levels of gov.?

Answer 59

only to state or local interference with existing contracts

Question 60

State or local interference with private contracts must meet what level of scrutiny?

Answer 60

Modified intermediate scrutiny 1. Does the legislation substantially impair a party’s rights under an existing contract? 2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Question 61

State or local interference with government contracts must meet what level of scrutiny

Answer 61

strict scrutiny

Question 62

ex post facto laws

Answer 62

state or federal government may not pass a law that CRIMINALLY punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed

Question 63

bill of attainder

Answer 63

Both federal and state governments are prohibited from passing legislative acts that inflict punishment on specific individuals without a judicial trial.