Individual Rights Flashcards
(32 cards)
Explain the state action requirement
In order to show constitutional violation the plaintiff must show that there was government action. Only government actors, not private actors, can violate constitutional rights
State action can be found in the actions of private actors under two theories: the public function theory and the significant state involvement theory. Explain both.
Public Function: Applies where the private entity is engaging in activities that are traditionally and exclusively performed by the government
State involvement Theory: Applies where the government and private entity are so closely related that the private action can be fairly treated as a government action
Define rational basis review, and note the classification to which it applies
Under a rational basis, the burden of persuasion is on the plaintiff to prove at the action being challenged is not rationally related to any legitimate governmental interest.
Rational basis applies to all classifications not falling under strict and intermediate scrutiny
Define intermediate scrutiny, and note the classifications to which it applies.
Under intermediate scrutiny, the burden of persuasion is on the government to prove that the action being challenged is substantially related to an important governmental interest.
Intermediate scrutiny applies to government actions using quasi-suspect classifications (gender and legitimacy)
Define strict scrutiny review and not the classifications to which it applies.
Under strict scrutiny, the burden of persuasion is on the government to prove that the meausure being challenged is neccesary to further a compelling government interest
Strict scrutiny applies to government action using suspect classifications (race, alienage, national origin)
Strict Scrutiny review applies to laws that burden the exercise of which rights
Fundamental Rights such as
(1) First Amendment Rights
(2) Right to Privacy
(3) Right to Travel
(4) Right to Vote
(5) Family Rights and;
(6) Others referred to as Fundamental Rights
Do the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect only citizens?
No, the fourteenth amendment protects all persons, including corporations and aliens
Both the Fifth and Fourteenth Amendments protect against the deprivation of:
Life, Liberty, or property without the due process of the law
The Fifth Amendment Takings Clause provides that the Government Cannot take:
Private property for public use without just compensation.
What type of process is required for procedural due process?
(1) Notice
(2) Opportunity to be heard AND
(3) Neutral Decisionmaker
Describe a direct government appropriation taking and regulatory taking
(1) A direct government appropriation is an actual appropriation of one’s property by the government
(2) A regulatory taking is a land-use regulation that denies the property owner of all reasonable economically beneficial uses of the land
In order to determine what procedural safeguards are necessary, courts look at what three factors?
Courts will look at the:
(1) The importance of the private interest that will be affected by the official action
(2) The risk of erroneous deprivation of this interest through the procedures used and the probable value of additional and substitute procedures and;
(3) The government’s interest in streamlined procedures
List the six rights protected by the privileges and immunities of national citizenship.
The 6 Rights are:
(1) to travel from state to state
(2) to petition Congress for redress of grievances
(3) to vote for national offices
(4) to enter public lands
(5) to be protected while in the custody of the U.S. Marshals;
(6) to assemble peaceably
Does the Fourteenth Amendment Privileges and Immunities Clause protect corporations?
No, Corporations are not protected under the Fourteenth Amendment Privileges and Immunities Clause
Any substantial interference with the right to marry must be necessary to further
A compelling interest
Any regulation on pre-viability abortion is unconstitutional if:
it imposes an undue burden on a woman’s right to choose an abortion
Explain a state’s ability to regulate abortion after viability
After viability, a state may regulate or even proscribe, abortion except where it is necessary to the perseveration of life or health of the mother
Explain which voting rights receive strict scrutiny review and which receive rational basis review
The fundamental right of U.S. citizens over the age of 18 extends to all federal, state, and local elections and is subject to strict scrutiny review
Government regulations of ballot access by candidates - based upon age, duration of residency, or payment of filing fees - are subject to rational basis review.
Does a terminally ill or comatose person have the right to choose to die?
It is not a fundamental right to die; however, a person has a due process liberty interest in not being forced to undergo unwanted medical procedures, such as life support.
What does the contract clause apply to?
The Contract Clause applies only to actions by the state. It applies to state legislation, but it does not apply to state court decisions.
When does a statute violate the Ex-Post Facto Clause?
A statute violates this clause if it:
(1) makes criminal an act that was not a crime when committed;
(2) prescribes greater punishment for a crime after its commission;
(3) decreases the amount of evidence required for conviction
(4) extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired
A bill of attainder is:
A legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct
What type of unprotected and low-value speech may be regulated?
Speech that advocates for violence or unlawful action, fighting words, and hostile audience speech.
(2) Obscene Speech
(3) Defamatory Speech
When is speech considered obscene?
Speech is considered obscene if:
(1) The average person, using contemporary community standards would the work taken as a whole to appeal to their prurient interests
(2) The work depicts and describes in patently offensive sexual conduct specifically defined by the applicable state law;
(3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
