Con Law (Due Process & Fundamental Rights, Equal Protection, Individual Liberties, Speech) Flashcards
Does the Constitution protect against wrongful conduct by the government or private citizens?
The government, not private individuals.
⚠️ Exceptions:
- Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
- Individual and gov. are excessively intertwined
- Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
Reverse incorporation doctrine
Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5th Amendment
Test for strict scrutiny
Law will be upheld if:
- It is necessary to achieve a compelling/crucial government interest; and
- Is the least restrictive means possible to achieve that interest (narrowly tailored)
When is strict scrutiny triggered?
if law involves a suspect classification or fundamental right
Test for intermediate scrutiny
Law will be upheld if it is substantially related to an important government interest
Test for rational basis review
Law will be upheld if rationally related to a legitimate government purpose
⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary
Who bears the burden of proof in rational basis review?
Challenger; must prove that law is unconstitutional
What is Due Process?
- Requirement that the government cannot deprive its citizens of life, liberty, or property without due process of law.
- Two types: procedural and substantive
- Rooted in both the 5th and 14th Amendments
What does procedural due process require (generally)?
If government is depriving an individual of life, liberty, or property, individual must be given:
- Notice;
- Opportunity to be heard (i.e. hearing); and
- Decision by a neutral arbitrator
What constitutes deprivation of property interests?
Deprivation of a “legitimate claim of entitlement.”
Examples:
- Public education;
- Public employment (only if employee is tenured or can be fired for cause; “at-will” employment does not trigger due process);
- Welfare benefits; or
- Government-issued licenses
The court balances what 3 factors to determine the amount of process due?
- Importance of the protected interest;
- Risk of deprivation with current procedures and value of additional procedures; and
- Government burden (fiscal and administrative) to provide process
Is a hearing prior to terminating welfare benefits required?
Is a hearing prior to terminating disability benefits required?
Is a hearing prior to terminating public employment required?
Welfare: Yes
Disability: No, only a post-termination evidentiary hearing
Public Emplyoment: No, only a post-termination evidentiary hearing. **Notice and an opportunity to respond to the decision-maker is required before termination.
Does the government need to provide notice before seizing personal property?
No, only real property
What is substantive due process?
Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.
What is the Contracts Clause?
Prohibits states from substantially impairing existing contract duties. Article I, Section 10.
⚠️ Congress can still restrict contracts that will be made in the future
A restriction on private contracts is subject to what level of scrutiny?
Intermediate scrutiny.
A restriction on government contracts is subject to what level of scrutiny?
Stricter scrutiny.
What types of property interests are protected by the Takings Clause?
Real property interests:
- Fee simple
- Easement
- Leasehold estate
- Mortgage/lien
Personal property:
- Patent rights
- Trade secrets
- Contracts
What is a regulatory taking and what factors does the court weigh when determining if a regulatory taking occurred?
A government regulation that is so burdensome it essentially amounts to taking.
To decide if taking occurred, court weighs:
- Economic burden on the owner;
- Extent of interference with owner’s reasonable use and enjoyment; and
- Whether or not the taking benefits society
What are two brightline types of regulations that constitute a taking? (“per se” takings”)
If regulation results in:
- Permanent physical occupation (no matter how minimal); or
- Deprivation of all economically viable use of the property
⚠️ Must deprive the owner of all economic value, a severe decline in value does not constitute a taking absent other factors (ex. prohibiting structures to be built on an island where you want to build your beach home probably constitutes an unconstitutional taking)
Takings for public use are subject to what level of scrutiny?
Rational basis review
What is an exaction and when does it constitute a taking?
Improper demand that a property owner give something to the community in exchange for zoning or development approval.
Constitutes a taking unless there is:
- Essential nexus between exaction and legitimate state interests; and
- Rough proportionality between burden on the developer and benefit to the public
What is an ex post facto law?
Unconstitutional criminal law that either:
- Criminalizes conduct that was legal at the time it was done;
- Imposes a harsher penalty after crime is committed;
- Decreases prosecution’s burden of proof for crime; or
- Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)
bill of attainder
Legislation that inflicts punishment on individuals or a designated group without a trial. Unconstitutional.
List the fundamental rights
- Right to travel (nationally);
- Right to vote; and
- Right to privacy
- Marriage
- Sexual relations
- Abortion
- Child-rearing/parenting
- Family members to live together
- Contraception
How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?
- If right is infringed for all people: substantive due process
- If right is only infringed for certain classes of people: violates equal protection
Restrictions on fundamental rights trigger what level of scrutiny?
Restrictions on nonfundamental rights trigger what level of scrutiny?
strict scrutiny
Rational basis review
Are restrictions on residency requirements for in-state benefits constitutional?
Yes, can limit in-state benefits to in-state residents.
If durational requirement (e.g. must be a resident for 30 days to receive benefits), must be reasonable and short (1 year residency to be eligible for Medicaid is likely invalid)
What is the Equal Protection Clause?
Holds that no state shall make or enforce any law that denies its citizens equal protection of the laws (i.e. similarly situated persons should be treated similarly under the law)
Does the Equal Protection Clause apply to the federal government?
Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause
What are the suspect classifications?
- Race;
- Alienage (state laws);
- Religion; and
- National origin
⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.
What are quasi-suspect classifications?
- Gender; and
- Legitimacy
⭐️ Intermediate scrutiny
What are non-suspect classifications?
-
Alienage if:
- Federal alienage classification; or
- State restriction on alien’s participation in government functions
- Age
- Wealth
- Sexual orientation
- Disability
- Any other classification not governed by strict or intermediate scrutiny
⭐️ Rational basis review. Almost always survives equal protection challenge unless motivated by animus towards the group
What are 3 ways that P can show a classification is discriminatory?
- Classification is discriminatory on its face: text of the law itself is unconstitutional.
- Classification is facially neutral, but discriminatory as applied: classification is discriminatory in its application or administration. Requires proof of both discriminatory intent and discriminatory effect.
- Discriminatory purpose/motive: P must show proof of discriminatory purpose.
For affirmative action to survive strict scrutiny, what must the government prove?
Action is necessary to remedy past discrimination by specific department or agency engaging in affirmative action. Past discrimination by private actors and/or society is not sufficient.
Must show evidence of past discrimination.
⚠️ Exception: quotas are almost never allowed.
Is affirmative action in higher education admissions constitutional?
Race may be used as a factor among many if state shows action is necessary (i.e. no race-neutral alternatives) to achieve compelling interest of obtaining diversity
⭐️ Numbers-based quotas will almost always be struck down
Alienage classifications trigger strict scrutiny unless:
- Classification is pursuant to Congress’ plenary powers to regulate immigration; or
- Classification is related to essential government functions and/or processes. Valid restrictions include:
- Voting and jury membership
- Working as public school teacher
- Working as police officer
- Working as probation officer
⭐️ If based on either circumstance, rational basis will apply
Are undocumented aliens a suspect class?
No, generally subject to rational basis review.
Discrimination against the children of undocumented aliens triggers what level of scrutiny?
intermediate scrutiny (ex. denying children the right to attend public schools)
Gender classifications trigger what level of scrutiny?
Intermediate scrutiny (substantially related to important government interest)
AND
proof of “exceeedingly persuasive justification”
Is affirmative action based on gender constitutional?
Yes, if necessary to achieve a compelling governmental interest in remedying past discrimination based on gender
Voting legislation is subject to what level of scrutiny?
If based on anything other than age, residency, or citizenship, strict scrutiny applies.
List 4 examples of voting regulations that have been upheld
- Reasonable residency requirements;
- Reasonable registration requirements;
- Reasonable time and manner regulations; and
- Denial of voting rights to felons.
What are four examples of unconstitutional voting restrictions?
- Poll taxes;
- Limiting school board elections to only parents and property owners
- Counting votes using overly vague standards; and
- Requiring political party registration for a general election (can be limited for primary elections)
Restrictions on travel trigger what level of scrutiny?
strict scrutiny
⚠️ Note: Only interstate travel; international travel is not a protected right
What is the test applied to non-resident discrimination from the Privileges & Immunities Clause?
There must be a substantial connection between the discrimination and a substantial state interest.
List two examples of constitutional non-resident discrimination
- Charging more for recreational licenses (hunting or fishing); and
- Treating non-residents differently to preserve in-state natural resources
List four examples of unconstitutional non-resident discrimination.
- Charging higher fee for commercial licenses for non-residents
- Commuter taxes applied only to non-residents
- Limiting abortions to only local residents
- Mandating that employers only hire state-residents
Can states exclude non-citizens from jobs related to state governance (e.g. police officers, government officials, public school teachers)?
Yes
- Can a state ban all write-in candidates for the primary and general election?
- Can a state refuse to put a candidate on ballot unless a minimum amount of voter support is shown? (e.g. via signatures, etc)
- Yes, as long as there are reasonable, alternative methods of getting on the ballot
- Yes
Free Exercise Clause
Prohibits the government from outlawing or preventing the exercise of religious beliefs
Laws that intentionally target religious beliefs are subject to what level of scrutiny?
Laws that only incidentally impact religion are subject to what level of scrutiny?
Strict scrutiny
Rational basis review
Establishment Clause
Prohibits the government from endorsing or supporting a particular religion.
Laws promoting a particular religion are subject to what level of scrutiny? Strict scrutiny
What is the 3-part test to determine whether a law violates the Establishment Clause?
Lemon test:
- Action must have a secular (non-religious) purpose;
- Primary effect must neither advance nor inhibit religion; and
- Action does not excessively entangle the government with religion
⚠️ Action will only be upheld if it meets all 3 elements of the Lemon test and only regulates practice of religion; not belief (gov. can never regulate beliefs)
Are tax deductions given to parents of students in religious schools constitutional?
Are tax exemptions for religious organizations constitutional?
Yes, as long as they are also given to parents of students in secular schools.
Yes, as long as they are also given to other non-profit organizations
Is allowing a religious organization to hold its meetings in a public school constitutional?
What is the constitutionality of student led prayer at a public high school football game?
- Yes, as long as there are a broad range of organizations using the facilities and none are given preferential treatment.
- Unconstitutional.
- Is posting the Ten Commandments in a classroom constitutional?
- Is displaying the Ten Commandments on public property constitutional?
- What is the constitutionality of religious holiday displays in public places (e.g. courthouse)?
- No.
- No, if the display has a “predominantly religious purpose.” If secular or historical purpose, may be considered constitutional.
- Constitutional if surrounded by other holiday symbols that make it clear government is not promoting specific religion
What is the freedom of association?
Protects the right to participate in any club, gathering, or group.
Subject to strict scrutiny: can only infringe if there’s a compelling gov. interest
When can someone be fired or prevented from gaining public employment for association with a group?
- D is active member of subversive organization;
- D knows about the group’s illegal activities; and
- D has specific intent to further illegal activities
What oaths can public employees be required to take?
- Oath to support the Constitution; and
- Oath to oppose a legal or violent overthrow of government
Can the government require disclosure of group membership?
Yes, but if the disclosure would have chilling effect, restriction must meet strict scrutiny.
When can the government regulate speech that is incitement to violence?
Regulation must be narrowly tailored and only aimed at:
- Speech that promotes or directs imminent illegal action; and
- Creates a “clear and present danger” of such action
What is the 3-prong test to determine whether speech is obscene?
- Appeals to “prurient interests;” (community standard)
- Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
- Lacks serious artistic, literary, political, or scientific value as determined by national standards
What is the test to determine whether regulation of commercial speech is constitutional?
Government may regulate truthful, non-misleading commercial speech if the regulation:
1) Directly advances,
2) A substantial governmental interest, AND
3) Is no more extensive than a necessary (reasonably tailored) to serve that interest.
False/Misleading Commercial Speech → Not protected
What does the First Amendment protect?
Freedom of expression (speech, press, assembly, & association)
Content-Based Restrictions
Regulations regarding the content of speech (subject matter or viewpoint) are subject to strict scrutiny.
Strict Scrutiny: Government must show (1) the regulation is narrowly tailored, (2) to achieve a compelling governmental interest, AND (3) the least restrictive means was used.
Viewpoint neutral restriction
One that restricts entire categories of speech, but not viewpoints within a category
Ex. Restriction on all Second Amendment speech would be allowed, but restriction on only anti-Second Amendment speech would not be allowed
Content-neutral restriction
Applies neutrally to all content regardless of viewpoint or subject matter.
Ex. time, place, or manner restriction
⭐️ Subject to intermediate scrutiny
- the regulation is narrowly tailored
- to achieve a significant government interest, AND
- it leaves open alternative channels of communication.
When will a regulation on speech in a traditional or designated public forum be upheld?
When forum is open for speech and:
- Regulates time, place, or manner (i.e. is content-neutral);
- Is narrowly tailored to serve significant government interest; and
- Leaves open ample, alternative channels of communication
When is a restriction on speech in a non-public forum valid?
- Viewpoint neutral (**does not need to be content neutral); and
- Reasonably related to a legitimate government purpose
When can the government regulate symbolic speech?
- Regulation furthers important gov. interest;
- Interest is unrelated to suppression of the message; and
- Impact on speech is no greater than necessary to achieve interest
Is the media protected by the First Amendment for publishing a lawfully obtained private fact? (e.g. identity of a rape victim)
Yes, as long as story is matter of public concern (i.e. newsworthy)
