Individual Rights

Question 1

What is the propose of the Privileges and Immunities Clause of Article IV?

Answer 1

Prohibits states from discriminating against out-of-state residents regarding any essential activities or basic rights (pursuing a job)

TIP: this clause pertains to an out-of-state resident’s relationship to a state - as opposed to the privileges OR immunities clause of the 14th amendment which pertains to a person’s rights of national citizenship

Question 2

What is the purpose of the Privileges OR immunities Clause of 14th Amendment?

Answer 2

Prohibits states from [passing laws that internally interfere w/ a person’s fundamental rights stemming from their national citizenship (ex, right to interstate travel)

Question 3

What is the purpose of the 13th Amendment

Answer 3

prohibits anyone, including private and government actors, from subjecting any person to slavery or involuntary servitude, and grants Congress the authority to enact legislation for enforcement

TIP: this is the ONLY amendment that applies to private action

Question 4

What is the purpose of the Due Process Clause of the 14th Amendment?

Answer 4

prohibits states from depriving anyone of life, liberty, or property w/out due process of the law

TIP: distinguish from DPC of 5th amendment which exists to prevent FEDERAL government from same deprivations

Question 5

What is purpose of 5th amendment?

Answer 5

prohibits the federal and state governments (not private actors) from depriving anyone of the right to vote based on “race, color, or previous condition of servitude” and authorizes Congress to enforce this Amendment by enacting legislation

Question 6

What is the “state action” requirement?

Answer 6

For a private citizen to bring a claim alleging a violation of their const rights the citizen must show some tangible “action” taken by the government or gov actor

Question 7

What is the “public function” exception to the state action requirement?

Answer 7

to satisfy the state action requirement, a narrow exception exists where a private actor has been entrusted by the state to perform inherently governmental functions becoming an agent of the state

TIP: a private actor performing a “public function” therefore may violate a private person’s constitutional rights

Question 8

May a private actor’s conduct satisfy the state action requirement?

Answer 8

NO.

General rules is that private conduct does not have to comply with US Const (except 13th am)

HOWEVER - exception when private entities act in a way that is authorized, facilitated, or encouraged by the government (not merely permitted)

TIP: an example of private conduct consituting state action is the “public function” exception - where private actor performing an exclusive and traditional state function

Question 9

What is the purpose of the Contract Clause?

Answer 9

Prohibits states from enacting any law that retroactively impairs existing contract rights

TIP: This Clause does NOT apply to the federal government, which may pass legislation that retroactively impairs k’s as long as it has a rational purpose

Question 10

What is an “ex post facto” law?

Answer 10

Ex post facto law makes illegal something that was legal when act occurred

-it is unconditional for States or federal government to enact such legislation, as it retroactively punishes past innocent behavior

TIP: ex post facto laws only apply to criminal cases and may also involve imposing more sever pun shipment than was possible when the crime was committed or changing evidentiary rules to make it easier to convict

Question 11

What is “procedural due process”?

Answer 11

Procedural due process: is a constitutional guarantee that the government may not impair a person’s right to life, liberty, or property w/out notice and a hearing before an unbiased decision-maker

TIP: distinguish from substantive due process, which protects fundamental individual rights (eg, privacy, travel, voting)

Question 12

When a person’s liberty or property interest being impaired, what does due process require?

Answer 12

When a person’s liberty to property interest has been infringed upon, due process requires:

1. notice of impairment (i.e., notification that one’s benefit is being terminated); AND
2. the opportunity to respond before the interest is terminated (i.e., a chance to present objections to the proposed termination to a fair, neutral decision-maker)

TIP: a court conducts a balancing test to determine the type of hearing required

Question 13

Which 3 factors will a court use to determine what process is due (i.e., the extent of procedures and whether a prior hearing is necessary) upon a deprivation of procedural due process?

Answer 13

The court determines whether a prior hearing is necessary and the extent of the procedures requiring by examining:

1. the importance of the individual interest at stake;
2. the value of the particular procedural safeguard w/ respect to that interest; AND
3. the gov’s interest in economic/administrative efficiency, including any additional fiscal or administrative burdens the process requirements will impose

Question 14

May an individual waive the procedural due process requirement?

Answer 14

YES

An individual may waive the procedural due process requirement as long as waiver is made voluntarily and knowingly

Question 15

Is it permissible for the government to impose court fees on indigent people under the DPC?

Answer 15

NO

The gov may NOT impose fees on indigent people IF the court fees affect the indigent person’s fundamental rights (such fees must be waived)

TIP: if the imposition of certain fees does NOT interfere w/ any fundamental rights, they do not need to be waived

Question 16

What is the purpose of the Takings Clause

Answer 16

forbids the state or fed gov from taking private property for public use w/out providing just compensation

Question 17

What is a taking deemed for “public use” under Takings Clause?

Answer 17

The gov may ONLY take private property if it is for public use, meaning it has a reasonable belief that the taking will benefit the public

TIP: the term public use is construed liberally

Question 18

What is the difference between a possessory taking and a regulatory taking?

Answer 18

Possessory taking: the gov physically confiscates or invades the property

Regulatory taking: the gov regulates the property to such an extent that no economically viable use remains

TIP: the gov must pay “just compensation” for both types of takings

Question 19

What is “just compensation” and how is it measured?

Answer 19

the FMV of the property, NOT the value of the owner’s particular need to the taker’s gain

-if the gov fails to pay FMV, it must terminate taking and pay owner for any loss incurred

Question 20

What is the purpose of the Equal Protection Clause of 14th Am

Answer 20

-ensures that all laws protect people who are in the same circumstances equally (classes of people ay not be discriminated against)

-laws may still classify ppl for specific reasons (taxation), but classifications must satisfy the applicable standard of review

TIP: 14th Equal Protection Clause applies to states
–> BUT same prohibitions extend to fed gov under 5th amendment Due Process Clause

Question 21

Which type of government classification triggers struct scrutiny under the Equal Protection Clause

Answer 21

Strict scrutiny applies when the government intentionally discriminates (i.e., has a discriminatory purpose that is intentional or deliberate in nature) against a “suspect class” (e.g., race, alienage)

Question 22

Which type of government classification triggers intermediate scrutiny under the EPC?

Answer 22

Appplies when the gov regulation intentionally discriminates (i.e., there is a discriminatory purpose that is intentional or deliberate against a “quasi-suspect” class (gender, legitimacy)

TIP: when a law does not intentionally discriminate against a quasi-suspect class, but it has a disproportionate impact, the law will be subject to rational basis review

Question 23

What classifications are considered SUSPECT?

Answer 23

A suspect class is a classification of people based on:
RACE
NATIONAL ORIGIN
ALIENAGE

TIP: strict scrutiny applies to regulation based on suspect class

Question 24

Which classifications are considered “quasi-suspect”?

Answer 24

Gender/sex
legitimacy (i.e., non-marital children)

TIP: Intermediate scrutiny applies

Question 25

Which rights are considered FUNDAMENTAL under US constitution?

Answer 25

FUNDAMENTAL RIGHTS: - right to interstate travel -right to privacy -right to vote and -all first amendment rights TIP: strict scrutiny will almost always apply to an infringement of fundamental right, whether arising under DP or EP

Question 26

Which level of scrutiny applies to affirmative action cases?

Answer 26

Strict scrutiny applies to affirmative action cases (i.e., laws enacted to favor racial minorities)

Question 27

When is alienage (citizenship) subject to rational basis review (i.e., NOT treated as a suspect class)?

Answer 27

Alienage will NOT be considered a suspect class, and therefore, rational basis review will apply, IF the alienage classification is related to self-government and the democratic process (e.g., jury duty, voting, working as police officer, teacher, or probation officer) or a federal immigration statute TIP: distinguish from most alienage issues, where strict scrutiny will apply

Question 28

What are the 4 first amendment freedoms?

Answer 28

1. religion 2. press 3. speech 4. assembly and association

Question 29

HYPO: If the government imposed a CONTENT-BASED regulation on speech, which presumption applies?

Answer 29

If the gov imposes ANY content-based regulation, it is PRESUMPTIVELY UNCONSTITUTIONAL and will be struck UNLESS it can survive strict scrutiny (i.e., it is necessary (narrowly tailored) to achieve a compelling government interest and uses the least restrictive means) TIP: the SC has NEVER upheld a speech regulation that favors one viewpoint over another

Question 30

What is the test for a content-NEUTRAL time, place, and manner restriction in a public forum?

Answer 30

For a content-NEUTRAL time, place, and manner restriction in a public forum to be upheld, it must essentially satisfy intermediate scrutiny, define in this context as: 1. narrowly tailored; 2. serving an important governmental interest; AND 3. leaving open alternative channels of communication TIP: this test applies to regulations in public forums (eg, streets, sidewalks, parks) and "designated" public forums (eg, private property often opened for public use); a content-based restriction is presumptively unconstitutional

Question 31

Which 5 types of speech MAY be restricted based on content (ie, are unprotected speech)

Answer 31

"Unprotected" speech may be restricted based on its content including: 1. imminent lawless action (threaten intended to place ppl in fear of harm) 2. defamation 3. obsencity 4. fighting words; AND 5. misrepresentation (false or deceptive commercial speech) TIP: even if speech is deemed "unprotected" its regulation may still be struck if it is over broad or vague

Question 32

What are the 3 elements of obscenity?

Answer 32

Speech is "obscene" if, taken as a whole, the average person would find that it: 1. appeals to the prurient interest in sex, measured by a community standard 2. is patently offensive and an affront to contemporary community standards AND 3. lacks serious literary, artistic, political, or scientific value in light of a national reasonable person standard TIP: the first 2 factors use a local/community standard and the 3rd is national standard

Question 33

Does the press have greater 1st Amendment rights than a private citizen?

Answer 33

NO. Generally press has no greater 1st am freedoms than private citizens TIP: if a question involves the regulation of broadcast media (radio, tv) - other types of regulations may apply

Question 34

Which 3 requirements will cause a person's affiliation with an illicit group to lose the freedom of association?

Answer 34

Freedom of association is NOT protected if the person is: 1. an active member of an organization participating in illegal activities; 2. aware of the group's illegal activities; AND 3. has the specific intent to further those illegal activities TIP: generally, any law regulating the freedom of association is subject to STRICT scrutiny

Question 35

What does the freedom of religion prohibit and protect?

Answer 35

The freedom of religion prevents the government from: 1. enacting laws establishing any one religion; OR 2. prohibiting the free exercise thereof TIP: the purpose of this freedom is for the government to abide by a court's of neutrality

Question 36

Which type of regulation violates the Free Exercise Clause?

Answer 36

The gov may not pass a law that INTENTIONALLY interferes w/ or limits religious practices, nor may it single out a particular religion for adverse treatment TIP: any law regulating the exercise of religion is subject to STRICT scrutiny

Question 37

Define "historical approach" under Establishment Clause

Answer 37

Examines whether the challenged government action accords w/ historical practices and the Founding Fathers' original intent regarding religious establishments

Question 38

Which level of scrutiny applies to interstate travel?

Answer 38

STRICY - applies to any law that inhibits a person's fundamental right to move into a state or between states TIP: durational residency requirements, which typically require some period of in-state residency b4 receiving benefits, must ALSO satisfy STRICT scrutiny

Question 39

Which 4 personal freedoms fall under the fundamental right to privacy

Answer 39

1. marriage 2. procreation 3. contraception AND 4. family and parental rights TIP: The right to privacy falls under "substantive due process" - which prevents laws from depriving anyone of fundamental rights (including, but not limited to, privacy, voting and travel) -if a statutory classification unduly burdens a fundamental due process right --> it triggers struct scrutiny under equal protection

Question 40

Which level of scrutiny applies to the right to vote?

Answer 40

STRICT - applies to any law that restricts one's fundamental right to vote (unless on basis of age, residency, or citizenship) TIP: requirements to own property in order to vote are almost ALWAYS unconstitutional

Question 41

What is "liberty" for purposes of procedural due process?

Answer 41

"Liberty" is defined as: 1. freedom from government-imposed physical restraints, in both criminal and non-criminal contexts; AND 2. the right to enter into contracts and seek gainful employment TIP: in crime context, due process ensures that an accused has certain rights regarding physical restraint

Question 42

What is property for purposes of procedural due process?

Answer 42

Property: one's ownership over real and personal property items (eg, land money) or a rightful entitlement to something (eg, an interest in a k for employment) TIP: to have a property interest, one must have more than some abstract need for, desire for, or unilateral expectation of a benefit; they must have a legitimate legal claim to it

Question 43

Which 2 questions should you ask FIRST to determine whether procedural due process had been denied?

Answer 43

First ask: 1. has a "liberty" or "property" right been impaired; AND 2. if yes, what process is due? TIP: for a government job to be considered "property" interest, there must be a legitimate claim or entitlement to the job, usually thru a k that says termination may only be "for cause"

Question 44

What standard is used for determining whether a taking is for "public use"?

Answer 44

A taking is for "public use" if it is rationally related to any conceivable public purpose (eg, for the benefit of health, welfare, economic, or safety) TIP: a taking may be for "public use" even if the property will not actually be used by the public( ie, the taking may be constitutional if a private company is using it in a way that fathers a public interest)

Question 45

What are the 2 prongs of the strict scrutiny test under the Equal Protection Clause?

Answer 45

A struct scrutiny analysis under the Equal PC requires the court to determine: 1. whether the classification (ie., law or regulation) is "necessary" to promote a compelling government purpose AND 2. if the "necessary" classification is narrowly tailored such that no alternative, less burdensome means exists TIP: burden of poof is on the government under strict scrutiny

Question 46

What is the intermediate scrutiny test under Equal PC?

Answer 46

Imposes a burden on government to show that the classification (law/regulation) is substantially related to an "important" government interest TIP: for gender classifications, there must be an "exceedingly persuasive justification" -the gov's interest must be genuine, not based on broad, stereotypical generalizations about men and women

Question 47

What is the rational basis test under the Equal PC?

Answer 47

Under rational basis test, the gov action is presumed constitutional unless the challenger can prove the government classification is NOT rationally related to any conditionality permissible state interest (i.e, wholly arbitrary or capricious) TIP: court gives "wide latitude" to governments enacting economic and social regulations

Question 48

How do fundamental rights arise in the context of equal protection rather than due process?

Answer 48

Fundamental rights are historically grounded in the Due Process Clause, although infringements upon these rights might trigger review under either DPC or equal protection When a fundamental right (eg, right to privacy, vote, travel, free speech) is violating SOME people's freedoms, but not others', it is an equal protection issue When a fundamental right is being denied to EVERYONE, it is a (substantive) due process issue TIP: a fundamental right will be subject to STRICT scrutiny regardless of whether it falls under equal protection or due process

Question 49

What is the test for when the government may impose a time, place, and manner restriction on expression in a NON-public forum?

Answer 49

The government may impose a time, place, and manner restriction on expression in a NON-public forum IF the regulation is: 1. reasonably related to a legitimate purpose; 2. viewpoint neutral; AND 3. not intended to suppress speech

Question 50

HYPO: If a facially-neutral regulation burdens religious conduct, but applies to others who engage in the same conduct for non-religious purposes, will it be upheld?

Answer 50

YES TIP: a court will NEVER inquire into the truth of a person's beliefs, but it will inquire into the sincerity of those beliefs

Question 51

Under substantive due process, what level of scrutiny applies to the deprivation of fundamental rights?

Answer 51

STRICT TIP: the gov must show the law is necessary to achieve a COMPELLING gov interest

Question 52

Under substantive due process, what level of scrutiny applies to the deprivation of nonfundamental rights?

Answer 52

Rational basis review applies to non fundamental rights under substantive due process TIP: the law is upheld if it is rationally related to a legitimate government purpose - the burden is on the CHALLENGER

Question 53

Define "procedural due process"

Answer 53

Prevents the government from impairing a person's right to life, liberty, or property without fair process

Question 54

Define "incorporation doctrine"

Answer 54

The "incorporation doctrine" is a constitutional doctrine through which the first 10 amendments of the US Const are made applicable to the states through the Due Process Clause of the 14th amendment

Question 55

What justification has been used to uphold affirmative action programs under strict scrutiny

Answer 55

Remedying the effects of past or present discrimination in a particular institution has been upheld as permissible under the EPC because it is narrowly tailored to further a compelling government interest

Question 56

Define EPC of 14th Amendment

Answer 56

prohibits states from treating different classes of people differently w/out adequate justification

Question 57

Which level of scrutiny applies to gender classifications

Answer 57

Intermediate scrutiny

Question 58

Define rational basis review

Answer 58

states that a law will be upheld if it is rationally related to a legitimate government purpose -burden of proof on challenger of the law

Question 59

What are the 3 types of classifications that may arise in an EP analysis?

Answer 59

1. suspect classifications and fundamental rights (strict) 2. quasi-suspect (intermediate) 3. Nonsuspect (rational basis)

Question 60

What is the threshold determination for a potential EPC issue?

Answer 60

Before determining whether there was discrimination and what level of scuiritny applies --> FIRST determine whether there was STATE ACTION TIP: also consider whether private action may be considered state action

Question 61

Strict scrutiny

Answer 61

States that law will be upheld if it is necessary to achieve a compelling government interest -BURDEN on gov to show that no less restrictive/burdensome means exist to achieve its goal

Question 62

Intermediate scrutiny

Answer 62

States that a law will be upheld if it is substantially related to an important government interest -GOV bears burden

Question 63

Freedom of Association Definition

Answer 63

protects an indidivudal's right to freely associate w/ other people TIP: this freedom often around joining in groups for expression or political affiliation -not an absolute right, as gov may regulate based on a compelling interest if less restrictive means are unavailable

Question 64

What is a "content-NEUTRAL" regulation on speech

Answer 64

a regulation on speech that is "content-neutral" is aimed at regulating the TIME, PLACE, MANNER of the speech, NOT its message -intermediate scrutiny TEST: requires reasonable restrictions on time, place and manner of speech that are narrowly tailored to serve an important government interest, and the regulation must leave open alternative channels of communication to engage in such speech

Question 65

Define "Free Exercise Clause"

Answer 65

Bars any law that prohibits the free exercise of religion TIP: only applies if the purpose of the law is to limit or interfere w/ religious practice

Question 66

What is a "limited public forum"?

Answer 66

Public property that the gov opens for specific speech reasons and may regulate around that particular use (eg, school may open its gym for a SINGLE community even related to a political issue) TIP: "limited public forums" are in contrast to public forums, designated public or nonpublic

Question 67

What is the test for government regulation of PROTECTED commercial speech?

Answer 67

The gov may regulate otherwise protected commercial speech if the regulation: 1. serves a substantial government interest; 2. directly advances that interest; AND 3. is reasonably tailored to serve that interest

Question 68

What is a "content-BASED" regulation on speech?

Answer 68

when it restricts speech based on its subject matter or viewpoint, NOT just its time place or manner

Question 69

What is a "designated public forum"?

Answer 69

is public property that is not regularly open to speech-related activities, but which the gov has thrown open for such activities on a PERMANENT OR LIMITED BASIS (eg., schools that are open for after school by social, civil, or recreational groups) TIP: the 1st amendment regulations for public forums apply to designated public forums

Question 70

When is commercial speech UNPROTECTED?

Answer 70

Commercial speech that is false, misleading, deceptive, or illegal is not protected and may be regulated by gov

Question 71

What is a "nonpublic forum"?

Answer 71

Government property NOT traditionally used for public speech (eg, the principals office at a public school or military base) and the government MAY regulate content but not viewpoints TIP: content regulations that are viewpoint-neutral may restrict speech of certain subjects but may not restrict the speech of a particular view

Question 72

What is the test for when the gov may restrict symbolic speech?

Answer 72

Gov may regulate symbolic speech if the regulation: 1. furthers an important gov interest unrelated to the suppression of speech; AND 2. prohibits no more speech than necessary

Question 73

When is a speech regulation considered unconstitutionally "overbroad"?

Answer 73

when it bans both protected and unprotected speech

Question 74

What is speech that incites imminent lawless action?

Answer 74

Speech is considered to be advocating "imminent lawless action" if: 1. there is substantial likelihood the advocacy is directed to inciting or producing imminent lawless action; AND 2. is likely to incite or produce such action

Question 75

When is a speech regulation considered unconstitutionally "vague"?

Answer 75

If it is so unclearly defined that a reasonable person would not be able to tell whether the speech is permitted or prohibited

Question 76

What are fighting words?

Answer 76

words that are likely to cause the listener to commit an act of violence

Question 77

Define Establishment Clause

Answer 77

prohibits gov from discriminating against a specific religion or sect

Question 78

What is a "prior restraint" on speech?

Answer 78

a prohibition on speech before the speech has occurred, through a court order or licensing requirement TIP: prior restraints are disfavored and must pass strict scrutiny

Question 79

What must a public official or public figure show to successfully raise a defamation claim?

Answer 79

When the π bringing a defamation claim is a public official/figure, the 1st amendment requires the π to show that the ∆ acted with "actual malice TIP: actual malice occurs when a statement was made with KNOWLEDGE of its falsity OR with RECKLESS DISREGARD for whether it was false or not

Question 80

What initial determination is necessary to analyze the constitutionality of a time, place, or manner restriction?

Answer 80

FIRST: determine type of forum where speech/conduct occurs (ie, public, nonpublic, limited, or designated public forum)

Question 81

May the press use the 1st amendment as a defense to trespass or other tort claim?

Answer 81

NO 1st am doesn't protect the press from liability for violating generally applicable laws, even if such laws impact the ability to gather and report the news on a matter of public concern

Question 82

What is a public forum?

Answer 82

property open to public (public sidewalks)

Question 83

Which lvl of scrutiny applies to content-based regulations on speech?

Answer 83

strict -narrowly tailored compelling -least restrictive means

Question 84

When does the 1st amendment protect the press from liability when publishing?

Answer 84

when publishing truthful private facts about a matter pop public concern where such info was legally obtained

Question 85

What is a "bill of attainder"?

Answer 85

an unconstitutional legislative act that punishes specific individuals w/out a judicial trial

Question 86

What are the ways a statute may constitute an ex post facto law?

Answer 86

A statute is deemed an ex post facto law by retroactively altering the criminal law 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 OR 4. extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired

Question 87

Does the Priv AND Immunities Clause of Art. IV apply to corporations or aliens?

Answer 87

NO only applies to individuals who are US citizens

Question 88

When will a state law that discriminates against non-residents be upheld under the Privileges AND immunities clause of article IV?

Answer 88

A law that discriminates against non-residents will be upheld if there is a "substantial justification" for the differing treatment In application - this requires the state to demonstrate that the non-residents are part of the cause of the problem and no less restrictive means exist to solve that problem

Question 89

Contracts Clause

Answer 89

prevents state gov's from passing laws that retroactively or substantially impair existing contracts

Question 90

What are the levels of scrutiny applied to government interference w/ public v. private contracts?

Answer 90

Private K's: if a law substantially interferes w/ a private k - INTERMEDIATE Public K's: if a law substantially interferes with a public (gov) K - STRICT

Question 91

Define "possessor taking"

Answer 91

is a PER SE taking that occurs when the gov physically takes or occupies property

Question 92

Which factors will the court balance in determining whether a regulatory taking has occurred?

Answer 92

Courts will balance the: 1. impact of the regulation on the claimant; diminution in value to the owner; AND 2. extent to which the regulation interferes w/ distinct investment-backed expectations

Question 93

Will government conditions imposed on the approval of permits constitute a taking?

Answer 93

NO. The gov may impose an exaction or a demand in exchange for a benefit conferred by the gov, such as conditional approval of a building permit The gov may impose such a burden w/out it being considered a taking as long as there is an "essential nexus" between the public need and the imposed exaction, AND if the benefit from the demand is "roughly proportional" to the burden imposed by allowing the proposed development TIP: the burden is on GOV to show evidence of its findings