Con Law 2 Key Concepts

Question 1

Rational Basis

Answer 1

(Deferential Test) Serves Legitimate Government Interest + Means Rational Related to Gov interest. No infringement of “fundamental” rights. (No Suspected or Protected class involved)

Question 2

Intermediate Scrutiny

Answer 2

Important Gov interest + Means substantially related to interest. (Discriminated against protected class)

Question 3

Strict Scrutiny (Standard of Review)

Answer 3

Protects fundamental right infringement. Compelling governmental interest + Means Narrowly tailored to this interest. Burden is on Gov. (Discriminated against suspect class)

Question 4

Equal Protection (Racial Discrimination, Sex Discrimination, Citizenship Discrimination, Classification Discrimination)

Answer 4

677-731 / 768-787 / S 23-31/ 787-807 / S 31-60 /

578-624 / 825-836

Question 5

Protected Fundamental Liberty Interest

Answer 5

Significant restraint on Freedom: Fundamental Rights, Freedom from physical restraint, Child Custody.

Question 6

Protected Fundamental Rights

Answer 6

Must be:
1. Carefully described / Narrowly Defined
2. Deeply Rooted in History, Implicit in ordered liberty and liberty/justice wouldn’t exist w/o it.

Question 7

Procedural Due Process

Answer 7

?What guaranteed procedure are ppl entitled before life, liberty, or property deprivation?
Test: Deprivation of Recognized property or Liberty interest?

Yes: Procedural Due Process Protections

No: Not entitled to Procedural Due Process Protections
?

Question 8

Substantive Due Process (Economic Liberties & Privacy)

Answer 8

14th amendment Due process Clause protects Fundamental Rights that are core to US conception of liberty

To recognize a fundamental right or liberty it must be:
1. Carefully Described
2. Deeply Rooted in Nation’s history and tradition and Implicit in the concept of ordered liberty such that “neither liberty nor justice would exist if sacrificed”

-Washington v Glucksberg

Scrutiny - Strict Scrutiny and Rational Basis

Question 9

Discriminatory (Impact, Purpose, Facially, Effect)

Question 10

Free Exercise of Religion

Question 11

Freedom of Speech

Question 12

Democracy

Question 13

Privileges and Immunities

Answer 13

467-480

Question 14

Ex Post Facto

Answer 14

Act that criminalizes something after the fact including: Conduct that’s wasn’t crime at time done, Authorization of more severe penalty, Removing Defendants lawful defense, Decreasing prosecutors burden of proof.

Question 15

Standard of Review

Question 16

Right to Privacy

Answer 16

? No Express right to privacy in Constitution.

Question 17

Unconstitutional Vagueness

Question 18

Doctrine of Incorporation (Constitutional Rights Before Corporation and SELECTIVE Incorporation)

Answer 18

?The protections of Bill of Rights selectively incorporated to states via 14th Amendment Due Process Clause.

These Protections are reverse incorporated to Federal Gov by 5th Amendment Due Process Clause.

If Right is “among those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” it should be applied to the states
459-467 / 669-675 / 481-507 / S 1-5
?

Question 19

Economic Due Process

Answer 19

Evaluated under Rational Basis review

Fundamental Economic Right must be:

1. Carefully described / Narrowly defined
2. Deeply rooted in history, implicit in ordered liberty/ justice wouldn’t exist w/o it

Question 20

Penumbra

Question 21

Rational Relationship

Question 22

Personal Autonomy

Question 23

Right to Travel

Question 24

Deprivation

Question 25

Presumption (Irrebuttable or Rebuttable / Explicit or Implicit)

Question 26

State Action Doctrine

Question 27

Doctrine of Over-breadth

Question 28

Incitement Speech

Question 29

Prior Restraint

Question 30

Unconstitutional Conditions Doctrine

Question 31

Freedom of Association

Question 32

Judicial Review

Question 33

Interpretive limits

Question 34

Congressional Limits

Question 35

Justiciability Limits

Question 36

Freedom of Expression

Question 37

Entanglement Exception

Answer 37

The Constitution applies if the government affirmatively authorizes, encourages, or facilitates private conduct that violates the Constitution. Either the government must cease its involvement with the private actor of the private entity must comply with Constitution.

Question 38

Mathews v. Eldridge Test

Answer 38

Consider these factors: 1. The affected private interest 2. Existing procedures: Fairness/Reliability and ability of additional procedures to increase accuracy of fact-finding 3. Gov interest

Question 39

Bill of Attainder

Answer 39

Legislative act imposing punishment on specific people (named individuals or easily ascertainable members of group) Punishment Inquiry: 1. Historical meaning of punishment 2. Furthers non-punitive legislative purposes? 3. Is there an intent to punish by legislature?