Substantive Due Process and Equal protection

Question 1

What amendment are not incorporated into the 14th and the 5th amendment

Answer 1

3, 5 and 7

Question 2

almost any protection violation to a private school will likely?

Answer 2

fail, not matter how entangled or how much funding the school gets from the govt, they are still a private function.

Question 3

can company towns be considered state actors

Answer 3

yes, you need to analyze the functions in the company town..but the likely answer is yes

Question 4

can racial covenants, regarding the sale of land, be held viable in state courts. E.g. no spanish speaking people can but a house in this neighborhood

Answer 4

These cannot be held viable. this would put the court in a position of racial discrimination.

Question 5

what is entanglement

Answer 5

its is when an entity and a states affairs are so mixed that they could be considered state actors.

Question 6

do states need to provide for civil jury trails

Answer 6

no, the 7th amendment has never been incorporated into the 14th amendment.

Question 7

when looking at a question first

Answer 7

determine if the right is fundamental or non-fundamental

Question 8

the only rights that are fundamental to substantive due process are?

Answer 8

rights that fall under the “right of autonomy” and the “right to privacy”

Question 9

what are the most tested examples of fundamental rights that fall under substaitive due process?

Answer 9

right to marry, bear or not to bear children, how to rear ones child, decline unwanted medical treatment, and potentially the right to suicide if you are competent and terminally ill. possibly the right to dress and appearance. (these are categories, if the subject matter is related to this fundamental right take you time to analyze)

Question 10

how do you know that you are dealing with a substantive due process question?

Answer 10

the govt is taking away a whole groups ability to do something and there is no issues as to whether the P falls into that group.

Question 11

Strict Scrutiny for SDP

Answer 11

for a fundamental right, the state will bear the burden of defending its law, the state needs to have a compelling objective and the means chosen by the state are necessary to achieve that objective with not other less restrictive means.

Question 12

what is the level of scrutiny for same sex marriage?

Answer 12

we just do not know, the court has not said. but it will be above the rational basis test.

Question 13

rational basis test for SDP

Answer 13

this is for non-fundamental rights under SDP, the state needs to be pursuing a legitimate govt objective and the means need to be rationally related to that objective.

Question 14

economic regulation and social-welfare programs (health safety and others)

Answer 14

are non-fundamental

Question 15

Gay sex under SDP outside of marriage

Answer 15

not fundamental, rational basis with a bite. (likely to get shot down.

Question 16

marital privacy under SDP

Answer 16

fundamental

Question 17

relatives living together (zoning issues)

Answer 17

fundamental

Question 18

same sex marriage under SDP

Answer 18

fundamental

Question 19

how children are educated and raised

Answer 19

fundamental

Question 20

List of fundamental rights

Answer 20

The right to marry, and the right to procreate
The right to purchase and use birth control
The right to custody of one’s own children and to raise them as one sees fit
The right to refuse medical treatment
The right to freedom of speech
The right to travel freely among the states
The right the vote
The right to freedom of association
The right to freedom of religion

Question 21

Equal Protection Clause where is it found.

Answer 21

is found in the 14th amendment, “no state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the law.

Question 22

the goal of the 14th amendment was

Answer 22

to impose a general restraint on govt use of classification, not just on race, but also on sex, alienage, illegitimacy, wealth or other characteristics.

Question 23

if equal protection was in the 14th amendment, which is only for states, how does it apply to the federal government

Answer 23

it is applied indirectly through the 5th amendment. so if an action was unconstitutional for a state then it would be unconstitutional for the federal govt.

Question 24

requirement for state action are there any exceptions?

Answer 24

yes, when a company has taken over a states duty (such are a privately run prison) Or when the states operation and the private operations are so entangled or when there is a “company owned town” (or company town). if the organization is regulated by the state, such as an electric company, that is not enought)

Question 25

what triggers and equal protection claim?

Answer 25

Equal protection is implicated when the government makes classifications v. when the govt merely decides (administrative decisions) which two classes a particular person falls into. e.g. people of have 5 children will get an extra govt bonus..this is challengeable under equal protection, come people will be classified as having under 5 children and others will not.

Question 26

equal protection v substantive due process

Answer 26

Equal protection is implicated when the government makes classifications v. when the govt merely decides (administrative decisions) which two classes a particular person falls into. Substantive due process- when the govt wants to regulate certain areas of human life. The govt is completely taking away a whole group's ability to do something, and there is not issue of weather the particular plaintiff falls into the defined group.

Question 27

equal protection "as applied" v. "facial"

Answer 27

if it is clearly written into the statute or regulation, this it is "on its face". If the statute causes and equal protection issues when it is applied then there is an issue. you need to distinguish between the two. Remember that there needs to be intent, and statute or regulation that when enforced creates an issue likely lacks the requisite intent.

Question 28

under equal protection you need to determine if it is a suspect class, quasi suspect class, fundamental right or other.

Answer 28

Suspect class and fundamental right will trigger strict scrutiny, quasi suspect class will trigger intermediate scrutiny. others will trigger rational basis NOTE: there are exceptions.

Question 29

equal protection "as applied" v. "facial"

Answer 29

the statute states " you need to be a citizen to drive" this facially discriminates against non-citizens. but Black citizens are not getting drivers licenses, this discriminates against a suspect class "as applied"

Question 30

EP economic and social laws

Answer 30

there are rational basis test.

Question 31

EP: bus fares go up but road tolls do not

Answer 31

the buses are mainly taken but a suspect class and they sue. this is economic and will not survive the rational basis test.

Question 32

EP: Disparate Impact

Answer 32

while not enough to maintain a suit, it is enough to provide and inference of racial discrimination.

Question 33

Alienage v. National Origin

Answer 33

if you are not a citizen of the united states and you are discriminated against that is an alienage issue. of you are a citizen of the united states but born on mexico that is a question of national origin which triggers strict scrutiny.

Question 34

EP: objective real differences and stereotypes.

Answer 34

be on the lookout for questions that show real differences to justify discrimination and stereotypical differences. page 111 on glannon, rambunctious children is a stereotype.