Con Law _ Individual Rights Flashcards
Definition – Equal Protection
EQUAL PROTECTION
Government is treating people DIFFERENTLY
Strict Scrutiny:
EQUAL PROTECTION
- Applies to Race, Alienage, National Origin
** Government has the burden* - NECESSARY to achieve a COMPELLING interest
Intermediate Scrutiny:
EQUAL PROTECTION
- Applies to Gender, Illegitimacy
- Government has the burden
- SUBSTANTIALLY related to an IMPORTANT interest
Rational Basis
EQUAL PROTECTION
- Applies to Everyone Else
- Plaintiff has the burden
- RATIONALLY related to a LEGITIMATE interest
EQUAL PROTECTION
Definition – Substantive Due Process
DUE PROCESS
Government regulating a right for ALL PEOPLE
Example:
o “All citizens must…”
o “All citizens shall not…”
o “If you want to do X, all people must do Y”
Levels of Scrutiny – Substantive Due Process
DUE PROCESS
-
Fundamental Right: Strict Scrutiny
vs. - Non-Fundamental Right: Rational Basis
Fundamental Rights:
DUE PROCESS
- Vote
- Free Speech
- Interstate Travel
(THINK CAMPER)
Fundamental Rights - Privacy Rights
DUE PROCESS
CAMPER triggers Strict Scrutiny:
* Contraception
* Abortion – Undue Burden
* Marriage
* Procreation
* Education
* Raise Family
Definition – Procedural Due Process
DUE PROCESS
Property Rights:
* Governmental jobs
* Licenses
* Public benefits
Levels of Scrutiny – Procedural Due Process:
DUE PROCESS
- No Levels of Scrutiny
- Need Notice AND Hearing
Procedural Due Process
AdaptiTip:
Property Right {HAS / HAS NOT} be vested
DUE PROCESS
Make sure property right has vested
Example:
Property Right:
o Day 100 of a 90-day trial period
Not a Property Right:
o Studying for the bar exam does not mean
property right in law license
o District Attorney working on a trial period o Working on probation
AdaptiTip
Which Amendments:
Equal Protection & Due Process:
FEDERAL Law = {#} Amendment
vs.
STATE Law = {#} Amendment
DUE PROCESS
Equal Protection & Due Process:
FEDERAL Law = 5th Amendment
vs.
STATE Law = 14th Amendment
13th Amendment:
13TH AMENDMENT vs. 15TH AMENDMENT
- Bans slavery
- PRIVATE individuals cannot racially discriminate
15th Amendment:
13TH AMENDMENT vs. 15TH AMENDMENT
- Voting & Racial Discrimination
Takings Clause Rule
TAKINGS CLAUSE
1) Government taking Private Property
2) For Public Use
3) With Just Compensation
Example:
o Government wants to take property for a museum, highway, stadium, or public park, and they need to take away your land to build it
Definition – Public Use
TAKINGS CLAUSE
Any overall public benefit
Example:
Public Use:
o Government wants to bulldoze Jon’s house for a new highway
Not Public Use:
o Government wants to bulldoze Jon’s house for restaurant and shops for private owner, unless government shows it is for a public use
Inverse Condemnation
TAKINGS CLAUSE
- Denies you the economic benefit of the land
- Value left is WORTH NOTHING
Example:
o Put nuclear power plant across from Jon’s house o Put manure factory across from Jon’s house
o Put exit ramp of a main highway across from Jon’s house
Definition – Establishment Clause
RELIGION
Government cannot pass a law that establishes a religion
Lemon Test:
RELIGION
1) Secular Purpose
2) Cannot Advance or Inhibit Religion
3) No Excessive Entanglement
Example:
Excessive Entanglement:
o Payment of money
o Scholarships
o Tax breaks
o Subsidies
Definition – Free Exercise Clause
RELIGION
Government must remain neutral on practice of religion
AdaptiTip
A Law { ________ } to religion will be constitutional even if the { ________ } prohibits religion
RELIGION
A Law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
Content-Based Regulation:
SPEECH
- Government stops the message
- Triggers Strict Scrutiny
Example:
o Ask Government to march, parade, or
demonstrate and Government says no
o Group wants to take out an advertisement
in newspaper and Government refuses
Content-Neutral Regulation:
SPEECH
- Regulation on Time, Place, & Manner
- Where, When, & How
Constitutionality – Content-Neutral Regulation
SPEECH
- Furthers significant governmental interest
- Leaves open alternative means of communication
- Form of Intermediate Scrutiny
Example:
o There is a demonstration in front of the White
House, and Government says you can protest from 8am-4pm, but you must be 20 feet from White House, and you cannot go on the roof of the buildings
Public Forum:
SPEECH
- Streets & Parks
- Must further significant government interest
- Leave open alternative means of communication
Non-Public Forum
SPEECH
- Billboards, Signs, Buses
-
Reasonably related to a legitimate
government interest
Obscenity
UNPROTECTED SPEECH
1) A prurient interest in sex by objective local community standards
2) Depicts sex in a patently offensive manner
3) Lacks any serious literary, artistic, political,
or scientific value
Adaptibar Tip:
Art may be viewed differently in different communities. Be sure to look at the local community standards stated in the question
Clear & Present Danger
UNPROTECTED SPEECH
1) Speech incites imminent violent action
2) Likely to produce violence
Fighting Words
UNPROTECTED SPEECH
Harsh language likely to incite an average person to commit violence
AdaptiTip
Fighting Words – Based on the { _ }
vs.
Clear & Present Danger – Based on the { _ }
UNPROTECTED SPEECH
Fighting Words – Based on the individual
vs.
Clear & Present Danger – Based on the group
Commercial Speech
UNPROTECTED SPEECH
- Business Related Speech
- REASONABLE fit to a SUBSTANTIAL interest
- Narrowly tailored
False/Misleading Advertisement:
UNPROTECTED SPEECH
- Speech that provides false/misleading information
- Not Protected
Example:
o Misleading commercials about growing hair with
vitamins
Prior Restraint
UNPROTECTED SPEECH
- Stops speech before it is published
- Injunctions, Gag Orders
Unfettered Discretion:
UNPROTECTED SPEECH
- Government official cannot choose/allow one form of speech over another
Overbroad & Vague Speech:
UNPROTECTED SPEECH
- Statute cannot be too broad or too vague
- Keywords: “any” or “all”
Bill of Attainder
BILL OF ATTAINDER & EX POST FACTO
- Cannot expressly PUNISH an individual or named group of people
- Applies to both Federal and State Government
Example:
o Congress or State of Florida passes a law fining
Jon Grossman
o Congress or State of Florida passes a law fining
Jets fans
Ex Post Facto Laws:
BILL OF ATTAINDER & EX POST FACTO
- Law that **retroactively makes action illegal **
-
Applies to both Federal and State
Government
Example:
o On January 3, Jon is driving 60 miles per hour. The speed limit is 65 miles per hour. Now in April, May, June, or July, police are trying to give Jon a ticket because as of January the speed limit was 55 miles per hour
Definition – Contracts Clause
CONTRACTS CLAUSE
STATE cannot EXPRESSLY impair your ability to enter a contract
Definition – State Action
STATE ACTION
There must be State/Government action to violate the constitution
