BAR FLASHCARDS - CL 4_ Individual Rights

Question 1

STATE ACTION REQUIREMENT

Answer 1

Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. State action includes action taken by the government and government officers at all levels (that is, local, state, or federal).
Sometimes state action can be found in actions of seemingly private individuals who perform exclusive public functions or have significant state involvement.

Question 2

Private action can sometimes be attributed to government:

Answer 2

a. Traditional and exclusive government function (for example, running a town or election)
b. Significant state involvement
1) Official encouragement or use of judicial machinery
2) Entwinement of state and private actors
3) But mere regulation, provision of public services, or licensing not enough

Question 3

Congress, by statute, may apply constitutional norms to private conduct: 3 BIG EXAMPLES

Answer 3

a. The Thirteenth Amendment can be used to prohibit private race discrimination. Broad latitude to eradicate the “badges and incidents of slavery”. BUT 13A only prohibitds slavery and allows congress to make laws. “DOESNT VIOLATE 13A - bc 13A only authorized Congress”
b. The commerce power can be used to apply constitutional norms to private conduct. 1963 civil rights act under CC authority.
c. Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior. Congress can ONLY regulate state and local gov under Section 5 of 14A.

Question 4

Exceptions: situations where private conduct must comply with the Constitution

Answer 4

a. The public function exception.
b. The entanglement exception.

Question 5

The public function exception

Answer 5

The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
Activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them (such as running an election).

Question 6

The public function exception: Exclusive Public Functions

Answer 6

Activities that are traditionally the exclusive prerogative of the state are state action no matter who performs them (such as running an election).

Question 7

suppose a company runs a “company town” (that is, a community in which an employer provides a place for employees to live and includes most of the features of a typical town, such as police and fire protection, schools, and parks), and the company bars minorities from using the town park.

Answer 7

Running a town park is typically a public function. When the town is run by a company and the company excludes minorities from the park, it’s acting as the government. Therefore, the company’s rule counts as state action (and the 14th Amendment, among other things, applies). Marsh v. Alabama.

Question 8

Running a utility… public function exception?

Answer 8

NO! Utility is NOT exclusively done by gov, so Con’ does not apply. Jackson.

Question 9

The entanglement exception

Answer 9

State action exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. The state must be “significantly involved” in the private entity; mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.

Question 10

Entanglement exception Leading cases

Answer 10

i) Courts cannot enforce racially restrictive covenants.
ii) There is state action when the government leases premises to a restaurant that racially discriminates.
iii) There is state action when a state provides free books to schools that racially discriminate. State was encouraging discrimination.
iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. Gov subsidy by itself is NOT ENOUGH for state action.
v) There is no state action when the NCAA orders the suspension of a basketball coach at a state university. (NCAA = voluntary association of public and private universities that establishes rules for its members regarding collegiate sports).
vi) There is state action when a private entity regulates interscholastic sports within a state. a 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
vii) There is not state action when a private club with a liquor license from the state racially discriminates.

Question 11

when a private school that is over 99% funded by the government fires a teacher because of her speech- State Action?

Answer 11

iv) There is no state action when a private school that is over 99% funded by the government fires a teacher because of her speech. Gov subsidy by itself is NOT ENOUGH for state action.

Question 12

TWO big examples of PUBLIC FUNCTION = State Action

Answer 12

Running a town, Conducting an election

Question 13

Granting a license and providing essential services to a private club

Answer 13

NO state Action

Question 14

Granting a monopoly to a utility

Answer 14

NO state Action

Question 15

Heavily regulating an industry

Answer 15

NO state Action

Question 16

Granting a corporation its charter and exclusive name

Answer 16

NO state Action

Question 17

Standard for entanglement

Answer 17

The state must be “significantly involved” in the private entity; mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it.

Question 18

CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS

Answer 18

The Constitution sets the minimum threshold of rights. States generally are free to grant broader rights than those granted by the United States Constitution. Also, Congress may, by statute, apply constitutional norms to private conduct.

Question 19

Bill of Rights generally

Answer 19

1. The Bill of Rights applies directly only to the federal government - By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power.
2. The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment. Except:
   a. The Third Amendment right to not have a soldier quartered in a person’s home.
   b. The Fifth Amendment right to grand jury indictment in criminal cases. (prohibition of criminal trials without a grand jury indictment).
   c. The Seventh Amendment right to jury trial in civil cases.

Question 20

Bill of rights applied to states

Answer 20

The Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states.
The most notable exceptions to incorporation are:
• The Third Amendment’s right to not have a soldier quartered in a person’s home
• The Fifth Amendment’s prohibition of criminal trials without a grand jury indictment
• The Seventh Amendment’s right to a jury trial in civil cases

Question 21

Thirteenth Amendment

Answer 21

The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as compulsion of labor through the use or threat of physical or legal coercion. Under the Thirteenth Amendment’s Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).

Question 22

Fourteenth and Fifteenth Amendments

Answer 22

The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. Due process.

The Fifteenth Amendment prevents federal, state, and local governments from denying a citizen the right to vote on account of race or color.
Generally, private conduct is not prohibited by these amendments; they apply only when some state action is involved.
Note: Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.

Question 23

Scope of Congressional Power Under Fourteenth Amendment

Answer 23

Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment.
Under Section 5, Congress 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.
To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.

Question 24

Section 5 of the Fourteenth Amendment

Answer 24

Section 5 of the fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment.

Question 25

To adopt a valid law under Section 5 of the Fourteenth Amendment, Congress must….

Answer 25

To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.

Question 26

Power of individuals - Commerce Clause

Answer 26

Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.

Question 27

Rights of National Citizenship

Answer 27

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

Question 28

LEVELS OF SCRUTINY

Answer 28

1. Rational basis test.
2. Intermediate scrutiny.
3. Strict scrutiny.

Question 29

1. Rational basis test.

Answer 29

Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard. The law is upheld if it is rationally related to a legitimate government purpose. Any conceivable permissible purpose. Burden on challenger to show no conc’ purpose or no law not rationally related. The law will usually be valid unless it is arbitrary or irrational.
Classifications that Are Not Suspect or Quasi-Suspect: The rational basis standard is used to review regulations involving classifications that are not suspect or quasi- suspect, such as age, disability, and poverty

Question 30

Under the rational basis test a law is upheld if…

Answer 30

Under the rational basis test a law is upheld if it is rationally related to a legitimate government purpose.

Question 31

When is the Rational Basis standard used?

Answer 31

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard.

Question 32

Classifications that Are Not Suspect or Quasi-Suspect:

Answer 32

The rational basis standard is used to review regulations involving classifications that are not suspect or quasi- suspect, such as age, disability, and poverty

Question 33

2. Intermediate Scrutiny

Answer 33

Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.
Look at ACTUAL purpose, not conceivable purpose. Means must b substantially related to achieving the end, not the only ones. GOV has BURDEN.
Regulations involving quasi-suspect classifications (for example, gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantially related to an important government purpose.

Question 34

Under intermediate scrutiny a law is upheld if….

Answer 34

Under intermediate scrutiny a law is upheld if it is substantially related to an important government purpose.

Question 35

When is the intermediate scrutiny standard used?

Answer 35

Regulations involving quasi-suspect classifications (for example, gender and legitimacy) are reviewed under the intermediate scrutiny standard.

Question 36

3. Strict scrutiny.

Answer 36

Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose. Gov has BURDEN. Must show government purpose is compelling- meaning vital. Look at ACTUAL purpose. Means have to be NECESSARY to achieve the goal (least restrictive alternative to achieve objective).

Regulations affecting fundamental rights (for example, interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (for example, race, national origin, and alienage) are reviewed under the strict scrutiny standard. The law is upheld only if it is necessary to achieve a compelling government purpose.
This is a difficult test to meet. A law examined under a strict scrutiny standard will often be invalidated—especially if there is a less burdensome alternative to achieve the government’s goal.

Question 37

Under strict scrutiny a law is upheld if…

Answer 37

Under strict scrutiny a law is upheld if it is necessary to achieve a compelling government purpose. Gov has BURDEN.
Must show government purpose is compelling- meaning vital. Look at ACTUAL purpose. Means have to be NECESSARY to achieve the goal (least restrictive alternative to achieve objective).

Question 38

When is strict scrutiny used?

Answer 38

Regulations affecting fundamental rights (for example, interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (for example, race, national origin, and alienage) are reviewed under the strict scrutiny standard.

Question 39

Least restrictive alternative analysis applies to?

Answer 39

ONLY STRICT Scrutiny

Question 40

language used to describe strict scrutiny sometimes varies:

Answer 40

For bar exam purposes “narrowly tailored to achieve an overriding government purpose” and “necessary to achieve a compelling government purpose” mean the same thing.

Question 41

Commerce Clause

Answer 41

Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce.

Question 42

Rights of National Citizenship

Answer 42

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

Question 43

Prohibitions Against Retroactive Legislation

Answer 43

1. Contracts Clause—applies only to states
2. Ex post facto laws—prohibited
3. Bills of attainder—prohibits laws inflicting punishment without a trial on people by name or past conduct

Question 44

1. Contracts Clause

Answer 44

—applies only to states
a. Prevents only substantial impairment of a party’s rights under an existing contract
b. Exception—law valid if:
1) Serves an important interest; and
2) Is narrowly tailored to promote that interest
c. Public contracts subject to stricter scrutiny
1) State cannot be obligated to refrain from exercising its police power
2) Law should not broadly repudiate government contractual obligations

Question 45

2. Ex post facto laws

Answer 45

—prohibited
a. Makes criminal an act that was innocent when done
b. Prescribes greater punishment than what was prescribed when act was committed
c. Reduces evidence required to convict
d. Specifically applies only to legislation but due process prohibits similar changes by the courts

Question 46

3. Bills of attainder

Answer 46

—prohibits laws inflicting punishment without a trial on people by name or past conduct

Question 47

Individual liberties (3 big buckets)

Answer 47

Procedural Due Process
Substantive Due Process
Equal Protection

Question 48

Procedural Due Process (Clauses)

Answer 48

Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states)

Question 49

The focus in procedural due process claims is on whether…

Answer 49

The focus in procedural due process claims is on whether the government has provided adequate procedures when it takes away life, liberty, or property.
IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN?

Question 50

A deprivation of liberty occurs if….

Answer 50

A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute.
While the term “liberty” is not specifically defined in the Constitution, it includes more than just freedom from bodily restraints (for example, it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if there is a loss of a significant freedom provided by the Constitution or a statute.

Question 51

Government duty to protect people from harm

Answer 51

Gov has no duty to protect people from PRIVATELY inflicted harms. ONLY if the Gov literally creates the danger, or if the person is in gov custody, does the gov have a duty to provide protection.

Question 52

A deprivation of property occurs if…

Answer 52

A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. An entitlement exists if there is a reasonable expectation that a benefit will continue.
“Property” includes more than personal belongings and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough.
RIGHT vs PRIVILEGES is a RED HERRING. Now magic word is ENTITLEMENT.

Question 53

An entitlement exists if…

Answer 53

There is a reasonable expectation of the continued receipt of a benefit.

Question 54

A person has a protectable property interest whenever she has…

Answer 54

A person has a protectable property interest whenever she has a legitimate claim to a benefit under state law.

Question 55

Person works for the gov, gov promises that theyll have the job next year. Takes the job away in the middle of the year. Violation?

Answer 55

YES.

Question 56

Examples of property interests include….

Answer 56

Examples of property interests include continued attendance at public school, welfare benefits, and (in some cases) government employment.

Question 57

For a procedural due process claim, government action must be….

Answer 57

Government negligence is an insufficient basis for a procedural due process claim. Similarly, the government’s failure to protect people from privately inflicted harms isn’t a denial of due process. Instead, there generally must be intentional or reckless government action.

Question 58

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

Answer 58

In emergency situations, the government is liable under the due process rules only if its conduct “shocks the conscience.”

Question 59

the government’s failure to protect people from ____ does not deny due process

Answer 59

Generally, the government’s failure to protect people from privately inflicted harms does not deny due process

Question 60

When approaching a procedural due process issue, ask:

Answer 60

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

Question 61

What does Procedural Due Process require?

Answer 61

Requires fair process/procedure when government acts intentionally or recklessly to deprive a person individually of life, liberty, or property
a. Both actual bias and serious risk of actual bias unconstitutional
b. Liberty includes losses of significant freedom of action
c. Property includes legitimate claims/entitlements to government benefits
1) Public employment is a property right if claim to entitlement through contract, policy, law, etc.

Question 62

PROCEDURAL Due Process ANALYSIS

Answer 62

Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
YES: What procedures must gov supply? BALANCE:
a. Importance of interest to the individual.
b. Ability of additional procedures to increase the accuracy of the fact finding; and
c. The Government’s interests.
NO: Gov need not provide PDP

Question 63

Procedural Due Process: Balancing TEST for determing what PROCEDURES are required

Answer 63

3. Balancing test for determining fair process in terms of timing (pre- vs. post-depriva- tion) and scope of hearing. The Court weighs:
   a. Importance of individual right to the individual
   b. Value of specific procedural safeguard involved (ability of additional procedures to improve the accuracy of the fact-finding against)
   c. Governmental interest in fiscal and administrative efficiency (saving money)

Question 64

The type and extent of procedures required under the Due Process Clause are determined by a three-part balancing test that weighs:

Answer 64

The type and extent of procedures required under the Due Process Clause are determined by a three-part balancing test that weighs:
• The importance of the interest to the individual, and
• The ability of additional procedures to improve the accuracy of the fact-finding against
• The government interest, which is usually focused on fiscal and administrative efficiency.

Question 65

What are always required for procedural due process?

Answer 65

fair procedures and an unbiased decisionmaker are always required.

Question 66

___ and ___ are usually required before the termination of liberty or a property interest.

Answer 66

Notice and chance to respond are usually required before the termination of liberty or a property interest.

Question 67

Before an adult can be institutionalized, there must be…

Answer 67

Notice and a hearing.

Question 68

Before an CHILD can be institutionalized by an adult, there must be…

Answer 68

Screening by a neutral fact-finder

Question 69

Harm to reputation

Answer 69

is NOT a loss of liberty. Ex-posting pictures of shoplifters by the city.

Question 70

Before welfare benefits are terminated, there must be…

Answer 70

Before welfare benefits are terminated, there must be notice and a hearing

Question 71

When Social Security disability benefits are terminated, there need be….

Answer 71

When Social Security disability benefits are terminated, there need be only a post-termination hearing

Question 72

Before a school can discipline a student, there must be…

Answer 72

Before a school can discipline a student, there must be notice of the charges and an opportunity to explain. BUT doesnt have to have trial.

Question 73

Corporal punishment in schools requires…

Answer 73

DOes NOT REQUIRE ANY due process.

Question 74

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

Answer 74

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

Question 75

Punitive damage awards require …

Answer 75

Punitive damage awards require instructions to the jury and judicial review to ensure reasonableness

Question 76

Grossly excessive punitive damages…

Answer 76

Violate due process

Question 77

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

Answer 77

For an American citizen to be detained as an enemy combatant, there must be due process (at a minimum, notice of the charges against him, representation by a lawyer, and a meaningful factual hearing).

Question 78

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

Answer 78

Except in exigent circumstances, prejudgment attachment or government seizure of assets require notice and a hearing.
exigent circumstances = reason to believe person would get rid of the property before hand.
EXCEPTION: Civil FOrfeiture, EVEN if person owning it is innocent.

Question 79

PDP: Civil Forfeiture

Answer 79

If property is used for illegal activity, EVEN if the owner is innocent, gov may SEIZE it.
If the government seizes property allegedly subject to forfeiture (usually because it was connected to illegal activity):
• If the property is real property, generally the government must provide the owner notice and an opportunity for some type of hearing prior to seizing it
• If the property is personal property, the government may be able to seize it prior to providing the owner a hearing, since personal property can be hidden or destroyed.

Question 80

Due Process Rights: WAIVER?

Answer 80

DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER: As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.

Question 81

ACCESS TO COURTS—INDIGENT PLAINTIFFS

Answer 81

Government fees (such as court filing fees) must be waived when the imposition of a fee would deny a fundamental right to the indigent.
Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for candidates for electoral office (voting rights) must be waivable. However, fees can be imposed when nonfundamental rights are involved (for example, fees for a bankruptcy discharge or review of welfare termination).

Question 82

Economic Liberties - what test is used?

Answer 82

Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.

Question 83

Protection for economic liberties?

Answer 83

Minimal protection

Question 84

Regulation of trade or professions

Answer 84

Rational basis, gov wins

Question 85

Consumer protection law

Answer 85

Rational basis, gov wins

Question 86

Employment Regulation - min wage, max hour law

Answer 86

Rational basis, gov wins.

Question 87

THE “TAKINGS” CLAUSE

Answer 87

The Fifth Amendment provides that the government may take private property for public use if it provides just compensation. This rule applies to the states via the Fourteenth Amendment. “Takings” include physical appropriations and some government action that damages property or impairs its use. The Takings Clause covers both personal property and real property.

Question 88

ANALYSIS: To analyze a Takings Clause question, ask:

Answer 88

To analyze a Takings Clause question, ask:
a. Is there a taking?
- - Is there a government confiscation or physical occupation of property?
- - Does the government’s regulation leave no reasonable economically viable use of the property?
>If NO to BOTH, No taking and No gov compensation required.
>IF YES TO EITHER, there is a taking.
b. Is it for public use?
- - Does the government act out of a reasonable belief that its action will benefit the public?
> if NO, Government must return the property.
> If YES, Just compensation must be paid. Government must pay economic market value of property in hands of owner (gain to the taker is irrelevant)
c. Was just compensation paid?

Question 89

Two ways of finding a taking

Answer 89

• Posessory taking: —Actual Appropriation or Physical Invasion. Government confiscation or physical occupation of property is a taking.
• Regulatory Taking— Leaves no REASONABLY ECONOMICALLY VIABLE USE. Government regulation is a taking if it leaves no reasonable economically viable use of the property.

Question 90

Is there a taking: “TAKING” VS. “REGULATION”

Answer 90

The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation). There is no clear-cut formula for making this determination, but the following general guidelines apply:
- Possessory Taking—Actual Appropriation or Physical Invasion
- Regulatory Taking—Use Restrictions
- Remedy—Inverse Condemnation

Question 91

Possessory Taking—Actual Appropriation or Physical Invasion

Answer 91

Government confisctation or physical occupation is always a taking. An actual or physical appropriation of property will almost always amount to a taking. Even a temporary appropriation or physical invasion may constitute a taking.
EXCEPTION: Emergency situations.

Question 92

Ag employers had to alow union organizers to meet with workers for certain hours per year

Answer 92

SC found this was a POSESSORY TAKING - owning property means being able to control it.

Question 93

Apt owners had to make 1 cb foot available for tv boxes

Answer 93

TAKING, no matter how small the space is!

Question 94

Regulatory Taking—Use Restrictions (3 types)

Answer 94

a. Denial of All Economic Value of Land—Taking:
Temporary Denials of All Economic Use:
b. Decreasing Economic Value—Balancing Test:
c. Building/Development Permit Dedication Requirements

Question 95

Regulatory Taking—Use Restrictions: Denial of All Economic Value of Land—Taking

Answer 95

a. Denial of All Economic Value of Land—Taking: If a government regulation denies a landowner of all reasonably economically viable use of their land (for example, a regulation prohibiting any building on the land), the regulation amounts to a taking.
Temporary Denials of All Economic Use: Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the Court will carefully examine and weigh all the relevant circumstances (for example, the planners’ good faith, the reasonable expectations of the owners, the length of the delay, and the delay’s actual effect on the value of the property) to determine whether “fairness and justice” require just compensation.

Question 96

Regulatory Taking—Use Restrictions: Decreasing Economic Value—Balancing Test

Answer 96

b. Decreasing Economic Value—Balancing Test: Generally, regulations that merely decrease the value of property (for example, prohibit the most beneficial use) do not amount to a taking if they leave an economically viable use for the property.
Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking.
- The Court will consider the social goals sought to be promoted; the diminution in value to the owner; and whether the regulation substantially interferes with the owner’s distinct, investment-backed expectations.

Question 97

NYC grand central station

Answer 97

SC said no taking. There was still reasonably economically viable use, decrease in value wasnt enough.

Question 98

Taking vs Regulation example: Condemnation of Land to build Highway

Answer 98

TAKING

Question 99

Taking vs Regulation example: Creating public access easement on private property

Answer 99

TAKING

Question 100

Taking vs Regulation example: Abolishing inheritance rights

Answer 100

TAKING

Question 101

Taking vs Regulation example: Zoning ordinances that merely prohibit the most beneficial use of property

Answer 101

REGULATION

Question 102

Taking vs Regulation example: Ordering destruction of diseased trees

Answer 102

REGULATION

Question 103

Taking vs Regulation example: Landmark ordinances generally

Answer 103

REGULATION

Question 104

Regulatory Taking—Use Restrictions: Building/Development Permit Dedication Requirements

Answer 104

c. Building/Development Permit Dedication Requirements: Municipalities often attempt to condition building or development permits on a landowner either conveying title to all or part of the property to the government or granting the public an easement to access the property. Known as exactions, these conditions constitute a taking unless:
• The government can show there is an essential nexus between the condition and the proposed development (that is, the condition relates to a legitimate government interest) and
• The adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.

For example, the Supreme Court found a taking when a city refused to grant a permit to a landowner to pave a parking lot unless the landowner dedicated some of their land as a greenway and a bike path (nothing indicated a nexus between paving the lot and the need for a greenway or bike path). Moreover, the Supreme Court has found a taking not only when land was in fact dedicated in contravention of the above requirements, but also when the landowner was denied a permit for refusing a government request that was in contravention of the above requirements.

Question 105

Gov conditions on development of property.

Answer 105

Benefit must be roughly proportional to burden. (• The adverse impact of the proposed development is roughly proportional to the loss caused to the property owner from the forced transfer.)

Question 106

Government conditions on development of property must be….

Answer 106

Government conditions on development of property must be justified by a benefit that is roughly proportionate to the burden imposed; otherwise it is a taking

Question 107

regulations that existed at the time the property was acquired

Answer 107

A property owner may bring a takings challenge to regulations that existed at the time the property was acquired

Question 108

Temporarily denying an owner use of property….

Answer 108

Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable.

Question 109

Takings: Remedy—Inverse Condemnation

Answer 109

When a government acts under the power of eminent domain to take property for public use, it will condemn the property and pay the owner just compensation (that is, fair market value of the property taken).
When property is taken by occupation or regulation without condemnation proceedings, the landowner can bring an action for inverse condemnation.
If the court determines that the government action amounted to a taking, the government will be required to either:
• Pay the property owner just compensation for the property; or
• Terminate the regulation and pay the owner for damages that occurred while the regulation was in
effect (that is, temporary taking damages).

Question 110

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

Answer 110

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

Question 111

Public Use

Answer 111

Public Use Is Liberally Construed: The government may take property but only for public use. A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. In other words, the government’s action must be 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 112

A taking is for public use so long as the government…..

Answer 112

A taking is for public use so long as the government acts out of a reasonable belief that the taking will benefit the public. In other words, the government’s action must be rationally related to a legitimate public purpose (for example, for health, welfare, safety, economic, or aesthetic reasons).

Question 113

Just Compensation

Answer 113

Just compensation is measured in terms of the loss to the owner in reasnoable market value terms, not the gain to the taker. Typically, just compensation equals the fair market value at the time of the taking. Increases in value to the owner’s remaining property as a result of the taking are not considered.
Property that is worthless to the owner can be the subject of a taking, but no compensation is necessary.

Question 114

Takings Summary

Answer 114

1. If government takes land for public purpose, it must provide just compensation
2. Public purposes liberally construed
3. Actual or physical appropriation almost always a taking, even if property taken is small
   a. Exception: Emergencies
4. Use restrictions (action for inverse condemnation)
   a. Denial of all economic value—taking
   b. Decrease in economic value—generally not a taking if economically viable use remains
   c. Dedications—cannot condition building permits on forced dedication unless:
   1) Government can show legitimate interest, and
   2) Adverse impact of development roughly proportional to owner’s loss
5. Just compensation—reasonable (fair market) value of property taken at time of taking

Question 115

The contracts clause - Impairment of contracts generally

Answer 115

No state shall impair the obligations of contracts. The Contract Clause says no state shall impair the obligation of contracts. Thus, it limits the ability of states or local governments to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.

Question 116

The contracts clause as applied to fed gov

Answer 116

Not Applicable to Federal Government: There is no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause (rational basis review).

Question 117

The contracts clause - Impairment of PRIVATE contracts

Answer 117

Private Contracts—Intermediate Scrutiny
State or local interference with private contracts must meet intermediate scrutiny, but the test is different than it is in other contexts—
State or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest.
Example: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause

Question 118

State or local interference with private contracts must meet….

Answer 118

State or local interference with private contracts must meet intermediate scrutiny
— Does the legislation substantially impair a party’s rights under an existing contract?
— If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Question 119

state or local legislation that ____ a party’s rights under an existing PRIVATE contract is invalid unless the law is ____

Answer 119

state or local legislation that substantially impairs a party’s rights under an existing private contract is invalid unless the law is a reasonably and narrowly tailored means of promoting an important and legitimate public interest.

Question 120

The contracts clause - Impairment of PUBLIC contracts

Answer 120

Public Contracts—Strict Scrutiny: State or local interference with government contracts must meet strict scrutiny, especially if the legislation reduces the contractual burdens on the state.

Question 121

State or local interference with government contracts must meet…

Answer 121

State or local interference with government contracts must meet strict scrutiny

Question 122

EX POST FACTO LAWS

Answer 122

The state or federal government may not pass an ex post facto law (that is, a law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed).

Note that the Due Process Clauses of the Fifth and Fourteenth Amendments similarly prohibit courts from retroactively interpreting criminal laws in an unexpected and indefensible way.

Question 123

A statute will be held to retroactively alter a law if it does any of the following:

Answer 123

A statute will be held to retroactively alter a law if it does any of the following:
• Makes criminal an act that was innocent when done
• Prescribes greater punishment for an act than was prescribed for the act when it was done
• Reduces the evidence required to convict a person of a crime from what was required when the act was committed

Question 124

ex post facto clause in civil cases

Answer 124

The ex post facto clause does not apply in civil cases. Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.)

Question 125

BILLS OF ATTAINDER

Answer 125

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

Question 126

RIGHT of Privacy

Answer 126

PRIVACY IS A FUNDAMENTAL RIGHT PROTECTED UNDER SUBSTANTIVE DUE PROCESS.
The Supreme Court has found that privacy is encompassed by the word “liberty” and protected as a fundamental right under the Due Process Clause. Regulations affecting activities protected by the right to privacy are reviewed under the strict scrutiny standard.

Question 127

Privacy rights INCLUDE

Answer 127

1. The right to marry (laws prohibiting same-sex marriage violate the right to marry)
2. The right to procreate.
3. The right to custody of one’s children.
4. The right to keep the family together (including extended family). Related individuals.
5. The right to control the upbringing of one’s children
6. The right to purchase and use contraceptives
7. There is no right to abortion under the Constitution. Only rational basis review is to be used in evaluating laws regulating abortions.
8. The right to privacy protects a right to engage in private consensual homosexual activity
9. The right to refuse medical treatment
   i. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
   ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
   iii. A state may prevent family members from terminating treatment for another.
10. There is not a constitutional right to physician-assisted death.

Question 128

The Right to Marry

Answer 128

A law prohibiting a class of adults from marrying is likely to be deemed invalid unless the government can demonstrate that the law is narrowly tailored to promote a compelling, overriding, or (at least) important interest.
a. Ban on Interracial Marriage: A ban on interracial marriage triggers—and fails—strict scrutiny.
b. Same-Sex Marriage: The fundamental liberties guaranteed by the Fourteenth Amendment (both the Due Process and Equal Protection Clauses) require every state to issue marriage licenses to two people of the same sex and recognize same-sex marriages performed elsewhere. Bans on same-sex marriage are not based on any legitimate interests related to protecting or promoting marriage.
c. Special Test in Prisoners’ Rights Cases: A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
d. Minimum Age Requirements: Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.

Question 129

The Right to Marry - Special Test in Prisoners’ Rights Cases

Answer 129

c. Special Test in Prisoners’ Rights Cases: A statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.

Question 130

The Right to Marry - Minimum Age Requirements

Answer 130

d. Minimum Age Requirements: Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review.

Question 131

The Right to Procreate

Answer 131

Individuals have a fundamental right to reproduce that cannot be limited by the state.

Question 132

3. The right to custody of one’s children.

Answer 132

Fundamental privacy right. The government cannot permanently terminate parental custody unless it has a compelling reason.
EXCEPTION: State can create a rebuttable presumption that a married womans husband is the father of the child. Michael H v. Gerald D.

Question 133

The Right to Keep Family Together

Answer 133

Zoning regulations that prevent family members, including extended family, from living together are invalid. Thus, a city ordinance prohibiting first cousins from living in a single household would be invalid.
However, this right does not extend to unrelated people. Therefore, the Court applied the rational basis standard when it considered a zoning ordinance that denied a special use permit to a group of unrelated people with intellectual disabilities who wished to share a residential home or apartment building.

Question 134

Other Parental Rights

Answer 134

Parental rights are fundamental rights. They include the companionship, care, custody, and management of children (for example, the right to send a child to private school or forbid grandparent visitation). If the government interferes with parenting choices, it must satisfy strict scrutiny.

Question 135

The Right to Purchase and Use Contraceptives

Answer 135

A state cannot prohibit distribution of nonmedical contraceptives to adults. (Griswold).

Question 136

Abortion

Answer 136

No con right - RATIONAL BASIS REVIEW!
The Supreme Court recently overruled the line of cases that held that the Constitution protected a woman’s right to obtain an abortion. As there is no longer a fundamental right to an abortion under the federal Constitution, the matter is left to the states to legislate. The Court has stated that laws restricting abortions are entitled to a “strong presumption of validity” under rational basis review. Further, the Court has identified several legitimate state interests that can support a restriction, namely, respecting and preserving prenatal life at all stages of development; protecting maternal health and safety; eliminating “particularly gruesome or barbaric medical procedures”; preserving the integrity of the medical profession; mitigating fetal pain; and preventing discrimination based on race, gender, or disability.

Question 137

The Right to Engage in Intimate Sexual Conduct

Answer 137

Private consensual adult sexual activity - LEVEL of SCRUTINY UNCLEAR.
The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature. This includes the right of adults to engage in private consensual homosexual activity. While the Court has not stated what standard of review should be applied to such laws, it has indicated that such laws can’t even pass rational basis review because of the lack of legitimate state interest.

Question 138

9. The right to refuse medical treatment

Answer 138

i. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.
iii. A state may prevent family members from terminating treatment for another.

Competent adults have the right to refuse medical treatment, even life-saving medical treatment. The Court has not identified what level of scrutiny applies to this right, but a state can require clear and convincing evidence that a person wanted treatment terminated before it is ended. This right belongs to each individual, and a state may prevent family members from terminating treatment for another.

Question 139

ii. A state may require ___ that a person wanted treatment terminated before it is ended.

Answer 139

ii. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.

Question 140

Right to Physician-Assisted Death?

Answer 140

No Right to Physician-Assisted Death
The Supreme Court said the right to privacy does not protect the right to physician-assisted death.

Question 141

Collection and Distribution of Personal Data—

Answer 141

No Privacy Right: The state may reasonably gather and distribute information about its citizens. Thus, the right to privacy does not prohibit the accumulation of a list of names and addresses of patients for whom dangerous drugs are prescribed.

Question 142

Obscene Reading Material

Answer 142

The right to privacy includes freedom to read obscene material in one’s home (except for child pornography), but not the right to sell, purchase, or transport such material.

Question 143

THE SECOND AMENDMENT RIGHT TO BEAR ARMS

Answer 143

“A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
1. The Second Amendment protects the right to have handguns in the home for the sake of security.
2. State laws that condition having a concealed weapon in public on needing to show a safety need for a permit are unconstitutional.
3. State laws regulating guns are allowed only if they were a type of regulation that historically existed.

Question 144

2nd amendment includes the right to…

Answer 144

This includes the right to keep a handgun at home and the right to carry a handgun in public.

Question 145

Gun Permits

Answer 145

For a gun permit law to be constitutional, the criteria must be clear; a law that gives an official discretion in granting permits is unconstitutional. State laws that require an applicant to show a safety need to obtain a permit to carry a concealed weapon in public are unconstitutional.

Question 146

2nd amendment: Standard of Review

Answer 146

If a regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation. Simply positing that the regulation promotes an important interest is not sufficient.

Question 147

Bans on firearms in sensitive places—such as legislatures, courtrooms, and schools—are

Answer 147

….constitutional based on historical tradition.
There is no analogous historical tradition to justify general bans on handguns in the home or in public.

Question 148

Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents….

Answer 148

Privileges and Immunities Clause (U.S. Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) prevents a state from treating citizens of other states in a discriminatory manner. Additionally, a right of interstate travel is associated with the clause.

Question 149

RIGHT TO TRAVEL

Answer 149

1. Laws that prevent people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny
3. Restrictions on foreign travel need meet only the rational basis test

Question 150

Interstate travel - Fundamental Right

Answer 150

An individual has a fundamental right to migrate from state to state and to be treated equally after moving into a new state under the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment. Laws that prevent people from moving into a state must meet strict scrutiny, but not every restriction on the right to cross state lines is an impairment of the right to travel (for example, increased penalties for a father abandoning his children and leaving the state are valid).

Question 151

What is the right to travel protected under?

Answer 151

under the Privileges and Immunities Clause and the Equal Protection Clause of the Fourteenth Amendment.

Question 152

Laws that prevent people from moving into a state must meet….

Answer 152

Laws that prevent people from moving into a state must meet strict scrutiny, but not every restriction on the right to cross state lines is an impairment of the right to travel (for example, increased penalties for a father abandoning his children and leaving the state are valid)

Question 153

Durational Residency Requirements

Answer 153

Durational residency requirements must meet strict scrutiny. A durational residency requirement is a rule requiring a person to live in a jurisdiction for a specified time in order to be eligible to receive a benefit (for example, a rule that a person must live in a state at least 30 days before being eligible to receive state welfare benefits).
The Supreme Court has noted that durational residency requirements chill the right to interstate travel and migration. However, some durational residency requirements have been upheld.

An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test. One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care. A state’s interest in fiscal integrity is not sufficient to justify a one-year waiting period for welfare or health benefits

Question 154

Durational residency requirements must meet…

Answer 154

2. Durational residency requirements must meet strict scrutiny

Question 155

Restrictions on foreign travel need meet….

Answer 155

3. Restrictions on foreign travel need meet only the rational basis test

Question 156

1 year residency to receive full WELFARE benefits

Answer 156

INVALID

Question 157

1 year residency to receive state-subsidized medical care

Answer 157

Invalid

Question 158

1 year residency to vote in state

Answer 158

Invalid

Question 159

30 day residency to vote in state

Answer 159

Valid

Question 160

1 year residency to Get divorced

Answer 160

Valid

Question 161

International Travel

Answer 161

International travel is not a fundamental right. It is, however, protected from arbitrary federal interference by the Fifth Amendment Due Process Clause. Only a rational basis test applies to restrictions on foreign travel.

Question 162

Durational residency requirements for VOTING

Answer 162

50 days is the maximum.

Question 163

Right to VOTE

Answer 163

The right to vote is a fundamental right. Laws that deny some citizens the right to vote (other than on the basis of residence, age, or citizenship) must meet strict scrutiny, but regulations designed to prevent fraud need only be, on balance, desirable.

Question 164

Laws that keep some citizens from voting must meet

Answer 164

Laws that keep some citizens from voting must meet STRICT scrutiny

Question 165

Right to VOTE Sumamry

Answer 165

1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable.
2. One-person - one-vote must be met for all state and local elections.
3. At-large elections are constitutional unless there is proof of a discriminatory purpose
4. The use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes without standards in a presidential election violates equal protection

Question 166

1. Laws that deny some citizens the right to vote must meet …, but regulations of the electoral process to prevent fraud need be ….

Answer 166

1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need be on balance desirable.

Question 167

Laws that can protect integrity of system if desirable must meet….

Answer 167

Laws that can protect integrity of system if desirable must meet balancing test.

Question 168

2. One-person - one-vote

Answer 168

2. One-person - one-vote must be met for all state and local elections. Everything except for US Senate.

Question 169

Dilution of Right to Vote - One Person, One Vote Principle

Answer 169

The “one person, one vote” principle must be met for all state and local elections.
If a state or local government decides to select representatives for a governmental body by popular election from individual districts, then all districts must be the same in population.

Question 170

Dilution of Right to Vote - One Person, One Vote Principle: Congressional Elections

Answer 170

States must use almost exact mathematical equality when creating congressional districts within the state. However, this is not true for Congress when it apportions representatives among the states. Congress’s good faith method for apportioning representatives commands more deference and is not subject to a precise mathematical formula.

Question 171

Dilution of Right to Vote - One Person, One Vote Principle: State and Local Elections

Answer 171

For state and local elections, the populations of voting districts must be substantially equal. That is, the variance in the number of persons included within districts can’t be unjustifiably large, but the districts don’t need to be within a few percentage points of each other. A state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest (for example, preserving political subdivisions), although a 10% variance is presumptively valid.

Question 172

Dilution of Right to Vote - One Person, One Vote Principle: Districts Can Be Measured Using Total Population

Answer 172

States need not measure the equality of their districts by counting only persons eligible to vote. Counting the total population best serves the “one person, one vote” principle.
Exception—Appointed Officials and Officials Elected “At Large”
The apportionment requirement is inapplicable to officials who are appointed or elected at large. At large elections (that is, when all of the voters vote for all of the office holders) are constitutional unless there’s proof of a discriminatory purpose.
Exception—Special Purpose Election
The one person, one vote principle does not apply to elections of officials who do not exercise “normal governmental authority” but rather deal with matters of special interest in the community (for example, water storage districts).

Question 173

At large elections

Answer 173

Where all voters vote for all officeholders. At large elections are allowed absent discriminatory purpose.

Question 174

3. At-large elections are….

Answer 174

3. At-large elections are constitutional unless there is proof of a discriminatory purpose

Question 175

4. The use of race in drawing election district lines….

Answer 175

4. The use of race in drawing election district lines must meet strict scrutiny

Question 176

Gerrymandering

Answer 176

Race (and presumably other suspect classifications) cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny.

Question 177

States May Use Independent Commissions to Draw Districts

Answer 177

To avoid gerrymandering, states may use independent commissions to adopt congressional districts, rather than allowing the state legislature to redistrict.

Question 178

5. Counting uncounted votes without standards in a presidential election….

Answer 178

5. Counting uncounted votes without standards in a presidential election violates equal protection. (Bush v. Gore)

Question 179

Uncounted Votes

Answer 179

Counting uncounted votes without preset standards violates equal protection.

Question 180

Restrictions on Right to Vote - Residency Requirements

Answer 180

Reasonable time periods for residency are valid. The Supreme Court has said that 50 days is the maximum allowable durational residency requirement for voting. Congress may override state residency requirements in presidential elections and substitute its own.

Question 181

Restrictions on Right to Vote - Identification:

Answer 181

Identification: A state may require voters to show a government-issued voter identification. The Supreme Court held that a photo- identification requirement was, on balance, desirable because the benefits in preventing fraud outweigh the burdens with regard to voting.

Question 182

Restrictions on Right to Vote - Property Ownership:

Answer 182

Property Ownership: Conditioning the right to vote or hold office on ownership of property is usually invalid. However, there is an exception for special purpose elections (for example, water storage districts).

Question 183

Restrictions on Right to Vote - Poll Taxes:

Answer 183

Poll Taxes: Poll taxes are unconstitutional.

Question 184

Restrictions on Right to Vote - Primary Elections:

Answer 184

Primary Elections: States may require early registration to vote in primaries. However, states cannot prohibit political parties from opening their primary elections to anyone, whether or not registered with the party.

Question 185

Candidate Qualifications - Fee Must Not Preclude Indigents:

Answer 185

Fee Must Not Preclude Indigents: States may not charge candidates a fee that results in making it impossible for indigents to run for office.

Question 186

Candidate Qualifications - Restrictions on Ability to Be a Candidate:

Answer 186

Restrictions on Ability to Be a Candidate: A ballot access regulation must be a reasonable, nondiscriminatory means of promoting important state interests. A state may require candidates to show reasonable support to have their names placed on the ballot.

Question 187

Campaign Funding

Answer 187

The government may allocate more public funds to the two “major” parties than to “minor” parties for political campaigns.

Question 188

RIGHT TO EDUCATION

Answer 188

THERE IS NO FUNDAMENTAL RIGHT TO EDUCATION

Question 189

FAIR NOTICE

Answer 189

A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required. A regulation that fails to give fair notice violates the Due Process Clause

Question 190

Substantive Due Process

Answer 190

The focus is on whether the government has an adequate reason for taking away a person’s life, liberty, or property.

Question 191

if a law limits the ability of all persons to engage in some activity, it usually is…

Answer 191

if a law limits the ability of all persons to engage in some activity, it usually is a due process issue.

Question 192

SDP: APPLICABLE STANDARDS

Answer 192

Under the Due Process Clause, when a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard.
In all other cases—including when economic liberties are involved—the rational basis standard applies.

Question 193

Equal Protection

Answer 193

The focus is on whether the government’s differences in the treatment of people are adequately justified.

Question 194

APPROACH TO EQUAL PROTECTION QUESTIONS

Answer 194

AN APPROACH TO EQUAL PROTECTION QUESTIONS
1. What is the classification?
2. What level of scrutiny should be applied?
3. Does this law meet the level of scrutiny?

Question 195

Equal Protection Constitutional Source

Answer 195

Constitutional Source: The Equal Protection Clause of the Fourteenth Amendment applies only to actions taken by the states and local governments.
There’s no provision in the Constitution that explicitly says that the federal government cannot deny equal protection, but the Supreme Court has said that the Due Process Clause of the Fifth Amendment implicitly includes an equal protection requirement.
The substance of the analysis is the same for all levels of government.

Question 196

CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION

Answer 196

1. The equal protection clause of the Fourteenth Amendment applies only to state and local governments
2. Equal protection is applied to the federal government through the due process clause of the Fifth Amendment.

Question 197

Equal Protection: APPLICABLE STANDARDS

Answer 197

If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.

If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard.

If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, then a rational basis standard applies.

Question 198

PROVING DISCRIMINATORY CLASSIFICATION

Answer 198

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate.
Intent may be shown through proof that:
• A law is discriminatory on its face
• There is a discriminatory application of a facially neutral law
• There is a discriminatory motive behind the law
Note: The third way to show intentional discrimination is the most difficult to prove. A discriminatory effect alone is not enough. The legislature’s discriminatory motive must be shown (for example, using evidence of a history of discrimination).

Question 199

Discriminatory use of preemptory challenges based on race ….

Answer 199

Discriminatory use of preemptory challenges based on race denies equal protection.

Question 200

CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN

Answer 200

1. Strict scrutiny is used
2. How is the existence of a racial classification proven?
3. How should racial classifications benefiting minorities be treated?

Question 201

SUSPECT CLASSIFICATIONS

Answer 201

Classifications are suspect if they are based on race, national origin, or alienage.
Remember, If a fundamental right or suspect classification is involved, the strict scrutiny standard is used to evaluate the regulation.

Question 202

Classifications based on: Race and National Origin

Answer 202

Classifications based on race or national origin are judged by a strict scrutiny standard. A racial classification can be shown in two ways:
• If the classification is evident on the face of the law (FACIAL DISCRIMINATION).
• If the law is facially neutral, proving a racial classification requires demonstrating both
discriminatory impact and discriminatory intent.
For example, the discriminatory use of peremptory challenges based on race constitutes a denial of equal protection.

Question 203

Classifications based on race and national origin - How is the existence of a racial classification proven?

Answer 203

2. How is the existence of a racial classification proven?
   a. The classification exists on the face of the law
   b. If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent
   Ex: Discriminatory use of preemptory challenges based on race denies equal protection.

Question 204

Proof of a racially discriminatory affect/impact

Answer 204

not enough, must show impact AND intent.

Question 205

Discriminatory use of preemptory challenges based on race ….

Answer 205

Violates equal protection

Question 206

Classifications based on race and national origin: How should racial classifications benefiting minorities be treated?

Answer 206

a. Strict scrutiny is applied
b. Numerical set-asides require clear proof of past discrimination
c. Educational institutions may use race as one factor in admissions decisions to help minorities. They must show, however, that there is no race neutral alternative which could achieve diversity. Additionally, educational institutions may not add points to applicants’ admissions scores based on race.

Question 207

School Integration

Answer 207

Only intentional segregation violates the Constitution. If school systems and attendance zones are established in a racially neutral manner, there is no violation. Thus, there is no violation if housing patterns result in racial imbalance in schools.

Question 208

“Benign” Government Discrimination—Affirmative Action

Answer 208

Government action—whether by federal, state, or local governmental bodies—that favors racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.

Question 209

Affirmative Action: Numerical set-asides

Answer 209

Numerical set-asides require clear proof of past discrimination. Generally, the Supreme Court is hostile toward quotas and set-asides.

Question 210

when a set aside was held up

Answer 210

When the police department said for every white officer promoted there has to be a black one too (50% set aside. They said it was a remedy for CLEARLY pROVEN past discrimination.

Question 211

Affirmative Action: Remedying Past Discrimination:

Answer 211

Remedying Past Discrimination: The government has a compelling interest in remedying past discrimination against a racial or ethnic minority. The past discrimination must have been persistent and readily identifiable. A race-based plan cannot be used to remedy general “societal discrimination.”

Question 212

Affirmative Action: Where There Was No Past Discrimination:

Answer 212

Where There Was No Past Discrimination: Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action. However, the governmental action must be narrowly tailored to that interest.

Question 213

Affirmative Action: Affirmative Action in Higher Education:

Answer 213

Affirmative Action in Higher Education: Public colleges and universities may use race as one factor in admissions decisions to benefit minorities and achieve diversity. However, they must show that there is no race neutral alternative that could achieve diversity. Additionally, educational institutions may not add points to applicants’ admissions scores based on race.

Question 214

Affirmative Action in Public Education: Elemtary and secondary school assignments

Answer 214

Affirmative Action in Public Education: The Supreme Court has not found diversity itself to be a sufficiently compelling reason to justify placing students in a particular elementary or secondary school.

Question 215

Discriminatory Legislative Apportionment

Answer 215

Race can be considered in drawing up new voting districts, but it cannot be the predominant factor. If a plaintiff can show that a redistricting plan was drawn up predominately on the basis of racial considerations, the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.

Question 216

Public school systems using race as a factor in assigning students to schools…

Answer 216

Public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.

Question 217

GENDER CLASSIFICATIONS

Answer 217

1. Intermediate scrutiny is used AND EXCEEDINGLY PERSUASIVE JUSTIFICIATION

Question 218

QUASI-SUSPECT CLASSIFICATIONS

Answer 218

Classifications based on legitimacy and gender are “quasi-suspect.”

Question 219

Gender Classifications

Answer 219

Gender classifications are reviewed under the intermediate scrutiny standard. They must be substantially related to an important government purpose. The government bears the burden of showing an “exceedingly persuasive justification” for the discrimination.
• If a law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.
• The discriminatory use of peremptory challenges based on gender denies equal protection.

Question 220

The discriminatory use of peremptory challenges based on gender …

Answer 220

• The discriminatory use of peremptory challenges based on gender denies equal protection.

Question 221

Women

Answer 221

Intentional discrimination against women is usually invalid. Likewise, gender classifications benefiting women that are based on role stereotypes will not be allowed.
HOWEVER, gender classifications that are designed to remedy past discrimination and differences in opportunity will typically be valid. (ex-social security formula to benefit women was constitutional).

Question 222

Intentional Discrimination Against Men

Answer 222

Intentional discrimination against men is generally invalid.
However, some discriminatory laws have been found to be substantially related to an important government interest (for example, statutory rape laws and the all-male draft).

Question 223

Gender-based death benefits

Answer 223

Invalid

Question 224

All-male draft

Answer 224

Valid

Question 225

Gender-based peremptory strikes

Answer 225

Invalid

Question 226

Discriminatory statutory rape laws

Answer 226

Valid

Question 227

Alimony for women only

Answer 227

Invalid

Question 228

Requiring American fathers (but not mothers) to prove their parentage of nonmarital children born abroad in order to obtain U.S. citizenship for them

Answer 228

Valid

Question 229

Discriminatory minimum drinking age (women at 18, men at 21)

Answer 229

Invalid

Question 230

How is the existence of a gender classification proven?

Answer 230

Same as with race.
a. The classification exists on the face of the law
b. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.

Question 231

How should gender classifications benefiting women be treated?

Answer 231

a. Gender classifications benefiting women that are based on role stereotypes will not be allowed.
b. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.

Question 232

Discrimination Against Non-Marital Children

Answer 232

Laws that discriminate against non-marital children are also reviewed under the intermediate scrutiny standard: They must be substantially related to an important government interest.
Discriminatory regulations intended to punish non-marital children (for example, a law providing a benefit to marital children but not to non-marital children) are invalid.
Example: A law allowing only marital children to recover from their fathers’ estates is invalid.
But note: A law allowing non-marital children to recover from their fathers’ estates only if parenthood is established before the father’s death is valid. The government has an important interest in preventing fraud and requiring paternity be established during the father’s lifetime was substantially related to that goal.

Question 233

OTHER CLASSIFICATIONS

Answer 233

All other classifications are evaluated under the rational basis standard. These include:
• Age discrimination
• Disability discrimination
• Wealth discrimination
• Economic regulations
EX: Mandatory retirement ages may be established. Also, because education is not a fundamental right, there is no denial of equal protection when wealthier children can afford to pay for access to the best state-operated schools.

Question 234

Mandatory retirement ages

Answer 234

Mandatory retirement ages may be established.

Question 235

the suspect classifications

Answer 235

the suspect classifications (race, national origin, and sometimes alienage)

Question 236

quasi-suspect classifications

Answer 236

quasi-suspect classifications (gender and legitimacy),

Question 237

Fundamental rights

Answer 237

Fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).

Question 238

These are NOT rational basis review

Answer 238

The suspect classifications (race, national origin, and sometimes alienage), quasi-suspect classifications (gender and legitimacy), and the fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.

Question 239

STRICT SCRUTINY

Answer 239

RACE, National origin, alienage generally

Question 240

INTERMEDIATE SCRUTINY

Answer 240

GENDER, Illegitamcy, Uncodumented alien chidlren

Question 241

RATIONAL ABSIS

Answer 241

Congressional regulation of aliens, age, disability, wealth, all other classifications.

Question 242

Alienage Classifications - Federal Classifications:

Answer 242

Federal Classifications: Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny. Such classifications are valid if they are not arbitrary and unreasonable.

Question 243

DISCRIMINATION AGAINST NON-CITIZENS , Generally

Answer 243

Strict scrutiny is used

Question 244

Only ___ is used for Congressional discrimination against non-citizen

Answer 244

Only a rational basis test is used for Congressional discrimination against non-citizen

Question 245

Alienage Classifications - State and Local Classifications

Answer 245

State and Local Classifications: Generally, a state or local law differentiating treatment based on alienage is treated as being based on a suspect classification and is subject to strict scrutiny.
Examples: It is unconstitutional for United States citizenship to be required for state welfare, civil service jobs, or a license to practice law.
EXCEPTIONS: The Supreme Court long has said that the government can reserve some privileges just for citizens, namely those that relate to self-government and the democratic process.
If a law discriminates against alien participation in state government, the rational basis standard is applied. The rational basis standard is also used for state and local laws limiting certain non-elective offices involving important public policy. Thus, government can discriminate against non- citizens with regard to voting; serving on a jury; or taking a job as a police officer, a primary or secondary education teacher, or probation officer.
Compare: The Supreme Court applied strict scrutiny to a law requiring that notaries public be citizens and struck down the law.

Question 246

Only a rational basis test is used for discrimination against non- citizens that concern _____

Answer 246

Only a rational basis test is used for discrimination against non- citizens that concern self-government and the democratic process

Question 247

When can state have alien classifications??

Answer 247

The Supreme Court long has said that the government can reserve some privileges just for citizens, namely those that relate to self-government and the democratic process.
Voting, serving a jury, being a cop, being a probatiob officer
These are rational basis review.

Question 248

Undocumented Aliens

Answer 248

State and local laws that differentiate based on whether a person is an undocumented (“illegal”) alien are not applying a suspect classification. Thus, state laws regarding them are usually subject to a rational basis standard. However, it appears that intermediate scrutiny is used for discrimination against undocumented alien children.

Question 249

State laws based on alienage are subject to ___, except when the law concerns ____, and possibly ____, in which case the rational basis test is applied

Answer 249

State laws based on alienage are subject to the strict scrutiny test, except when the law concerns alien participation in the functioning of the state government (and possibly “illegal” alien adults), in which case the rational basis test is applied

Question 250

Undocumented immigrant children

Answer 250

It appears that intermediate scrutiny is used for discrimination against undocumented immigrant children

Question 251

DISCRIMINATION AGAINST NON-MARITAL CHILDREN

Answer 251

1. Intermediate scrutiny is used
2. Laws that deny a benefit to all non-marital children but grant it to all marital children are unconstitutional

Question 252

Laws benefitting all marital children but no non-marital children…

Answer 252

always fail, unconstituional.

Question 253

Laws benefitting SOME non-marital children but not ALL non-marital children…

Answer 253

sometimes upheld. like paternity test during fathers lifetime.

Question 254

RATIONAL BASIS REVIEW IS USED FOR ALL OTHER TYPES OF DISCRIMINATION UNDER THE CONSTITUTION

Answer 254

1. Age discrimination - never been struck down.
2. Disability discrimination - one got struck down for a disability ordinance.
3. Wealth discrimination
4. Economic regulations
5. Sexual orientation discrimination

Question 255

memorize the suspect classifications (____), quasi-suspect classifications (____), and the fundamental rights (____).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.

Answer 255

memorize the suspect classifications (race, national origin, and sometimes alienage), quasi-suspect classifications (gender and legitimacy), and the fundamental rights (right to interstate travel, privacy, voting, and First Amendment rights).
Any other classification or any other right is not entitled to more than a rational basis review; thus, the government regulation will usually be valid.

Question 256

Equal Protection - CLASS of ONE

Answer 256

Class of One: The Supreme Court has recognized—at least in relation to property regulation—that an equal protection claim may be brought not only for discrimination against a group but also for arbitrary treatment of a single individual (known as “a class of one”). However, an at-will government employee who claims to be a victim of arbitrary discrimination cannot use the class of one theory to make an equal protection claim.

Question 257

Fundamental Rights Source

Answer 257

Fundamental rights can be enumerated in the Constitution or unenumerated. Whether an unenumerated right is fundamental depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.

Question 258

Funfamental rights scrutiny.

Answer 258

If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. The applicable standard in either case is strict scrutiny. Thus, government action must be necessary to protect a compelling governmental interest. (Remember that there must be no less restrictive means to achieve this goal.)

Question 259

Substantive Due Process Clauses

Answer 259

Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states).
The Due Process Clause of the Fifth Amendment applies to the federal government.
The Due Process Clause of the Fourteenth Amendment applies to state and local governments. The same tests are applied under each clause.

Question 260

Substantive Due Process

Answer 260

2. Prohibition against unreasonable laws
3. Reasonableness test depends on interest involved
   a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)— strict scrutiny
   1) Government must prove action is necessary to achieve a compelling government interest
   b. All other interests—rational basis
   1) Challenger must prove action not rationally related to any legitimate government interest
4. Requires laws to give fair notice of conduct that is forbidden or required

Question 261

Equal Protection

Answer 261

14th Amendment prohibition against unreasonable discrimination by states.
Test for reasonableness depends on criteria used to classify (suspect or quasi- suspect class) and nature of right (fundamental right)

Question 262

Equal Protection - a. Discriminatory intent by government:

Answer 262

1) Law discriminatory on its face
2) Discriminatory in application
3) Discriminatory motive
4) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies

Question 263

Equal Protection - b. Suspect classification (race and national origin) or fundamental right—strict scrutiny

Answer 263

1) Government must prove action is necessary to achieve a compelling government interest
2) Affirmative action (favoring minorities) invalid unless:
a) Seeking to remedy past discrimination within jurisdiction
3) Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body
a) Cannot be a special/weighty factor
4) Alienage— state/local laws on alienage are suspect, except alienage can be considered for state employment positions involving theself-government process (including police officers and primary and secondary schoolteachers)

Question 264

Equal Protection - c. Quasi-suspect classification (sex and legitimacy)

Answer 264

—intermediate scrutiny
1) Government must show discrimination is substantially related to an impor- tant government interest
2) Sex discrimination—exceedingly persuasive justification required
a) Interest must be genuine and not hypothesized

Question 265

Equal Protection - d. All other classifications

Answer 265

—rational basis standard

Question 266

Other Privacy Rights

Answer 266

Include marriage, use of contraceptives, possession of obscene reading material in the home (except child pornography), right to live with extended family, right to educate and raise children
1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent
2. Intimate private, noncommercial sexual contact between fully consenting adults—no legitimate government interest in regulation.

Question 267

Voting Rights

Answer 267

1. Short residency requirement (for example, 30 days)—valid
2. One person, one vote
   a. Congressional elections—almost exact mathematical equality required (a few percentage points may be fatal)
   b. State and local elections—variance not unjustifiably large (16% variance upheld)
3. Fees—cannot preclude indigent candidates

Question 268

Laws prohibiting nonresidents from voting

Answer 268

Although the right to vote is a fundamental right, laws prohibiting nonresidents from voting are generally valid, provided that they meet the minimal scrutiny, or “rational basis,” standard. Under this standard, a law will be upheld as long as it is rationally related to a legitimate government interest. Limiting the voters in a city’s mayoral election to residents of the city serves the interests of efficiency and prevents persons with little personal interest in the city from voting.

Question 269

Gerrymandering

Answer 269

preserving political subdivisions is a legitimate state interest that justifies the plan’s variance in representation.

the reapportionment plan does not violate the Equal Protection Clause of the Fourteenth Amendment. That provision has been interpreted to prohibit state dilution of the right to vote, so that whenever a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. However, for the purpose of electing representatives to a state or local governmental body, the variance in the number of persons included in each district can be greater than that permitted for congressional districts. Generally, if the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the law establishing the districts will likely be upheld. The Court has held that maintaining the integrity of local political subdivision lines when establishing legislative districts is a legitimate state interest, as long as the final apportionment is substantially based on population. [See Mahan v. Howell (1973)-16% variance upheld]

Question 270

Right to Travel Interstate

Answer 270

1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30-day period probably okay; one year invalid)
2. Distinctions between old and new residents—invalid