Con Law (Due Process & Fundamental Rights, Equal Protection, Individual Liberties, Speech)

Question 1

Does the Constitution protect against wrongful conduct by the government or private citizens?

Answer 1

The government, not private individuals.

⚠️ Exceptions:

1. Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
2. Individual and gov. are excessively intertwined​
   
   • Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement

Question 2

Reverse incorporation doctrine

Answer 2

Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5^th Amendment

Question 3

Test for strict scrutiny

Answer 3

Law will be upheld if:

1. It is necessary to achieve a compelling/crucial government interest; and
2. Is the least restrictive means possible to achieve that interest (narrowly tailored)

Question 4

When is strict scrutiny triggered?

Answer 4

if law involves a suspect classification or fundamental right

Question 5

Test for intermediate scrutiny

Answer 5

Law will be upheld if it is substantially related to an important government interest

Question 6

Test for rational basis review

Answer 6

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

Question 7

Who bears the burden of proof in rational basis review?

Answer 7

Challenger; must prove that law is unconstitutional

Question 8

What is Due Process?

Answer 8

• 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

Question 9

What does procedural due process require (generally)?

Answer 9

If government is depriving an individual of life, liberty, or property, individual must be given:

1. Notice;
2. Opportunity to be heard (i.e. hearing); and
3. Decision by a neutral arbitrator

Question 10

What constitutes deprivation of property interests?

Answer 10

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

Question 11

The court balances what 3 factors to determine the amount of process due?

Answer 11

1. Importance of the protected interest;
2. Risk of deprivation with current procedures and value of additional procedures; and
3. Government burden (fiscal and administrative) to provide process

Question 12

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?

Answer 12

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.

Question 13

Does the government need to provide notice before seizing personal property?

Answer 13

No, only real property

Question 14

What is substantive due process?

Answer 14

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.

Question 15

What is the Contracts Clause?

Answer 15

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.

Question 16

What types of property interests are protected by the Takings Clause?

Answer 16

Real property interests:

• Fee simple
• Easement
• Leasehold estate
• Mortgage/lien

Personal property:

• Patent rights
• Trade secrets
• Contracts

Question 17

What is a regulatory taking and what factors does the court weigh when determining if a regulatory taking occurred?

Answer 17

A government regulation that is so burdensome it essentially amounts to taking.

To decide if taking occurred, court weighs:

1. Economic burden on the owner;
2. Extent of interference with owner’s reasonable use and enjoyment; and
3. Whether or not the taking benefits society

Question 18

What are two brightline types of regulations that constitute a taking? (“per se” takings”)

Answer 18

If regulation results in:

1. Permanent physical occupation (no matter how minimal); or
2. 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)

Question 19

Takings for public use are subject to what level of scrutiny?

Answer 19

Rational basis review

Question 20

What is an exaction and when does it constitute a taking?

Answer 20

Improper demand that a property owner give something to the community in exchange for zoning or development approval.

Constitutes a taking unless there is:

1. Essential nexus between exaction and legitimate state interests; and
2. Rough proportionality between burden on the developer and benefit to the public

Question 21

What is an ex post facto law?

Answer 21

Unconstitutional criminal law that either:

1. Criminalizes conduct that was legal at the time it was done;
2. Imposes a harsher penalty after crime is committed;
3. Decreases prosecution’s burden of proof for crime; or
4. Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)

Question 22

bill of attainder

Answer 22

Legislation that inflicts punishment on individuals or a designated group without a trial. Unconstitutional.

Question 23

List the fundamental rights

Answer 23

1. Right to travel (nationally);
2. Right to vote; and
3. Right to privacy
   
   • Marriage
   • Sexual relations
   • Abortion
   • Child-rearing/parenting
   • Family members to live together
   • Contraception

Question 24

How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?

Answer 24

1. If right is infringed for all people: substantive due process
2. If right is only infringed for certain classes of people: violates equal protection

Question 25

Restrictions on **fundamental rights** trigger what level of scrutiny? Restrictions on **nonfundamental rights** trigger what level of scrutiny?

Answer 25

strict scrutiny Rational basis review

Question 26

Are restrictions on **residency** requirements for **in-state benefits** constitutional?

Answer 26

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)

Question 27

What is the **Equal Protection Clause**?

Answer 27

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) [14th Amendment](https://www.law.cornell.edu/constitution/amendmentxiv) Does the Equal Protection Clause apply to the **federal government**? Yes indirectly, via incorporation of the Fifth Amendment Due Process Clause

Question 28

What are the **suspect** classifications?

Answer 28

1. Race; 2. Alienage (state laws); 3. Religion; and 4. National origin ⭐️ Subject to strict scrutiny. Suspect classifications will almost always be fatal.

Question 29

What are **quasi-suspect** classifications?

Answer 29

1. Gender; and 2. Legitimacy ⭐️ Intermediate scrutiny

Question 30

What are **non-suspect** classifications?

Answer 30

1. **Alienage** if: 1. **Federal** alienage classification; or 2. State restriction on alien's participation in **government functions** 2. **​Age** 3. **Wealth** 4. **Sexual orientation** 5. **Disability** 6. **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

Question 31

What are 3 ways that P can show a classification is **discriminatory?**

Answer 31

1. Classification is discriminatory **on its face**: text of the law itself is unconstitutional. 2. 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. 3. Discriminatory **purpose/motive**: P m​ust show *proof* of discriminatory purpose.

Question 32

For **affirmative action** to survive strict scrutiny, what must the government prove?

Answer 32

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.

Question 33

Is affirmative action in **higher education admissions** constitutional?

Answer 33

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

Question 34

Alienage classifications trigger strict scrutiny **_unless:_**

Answer 34

1. Classification is pursuant to **Congress' plenary powers to regulate immigration;** or 2. 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**

Question 35

Are **undocumented aliens** a suspect class?

Answer 35

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)

Question 37

**Gender** classifications trigger what level of scrutiny?

Answer 37

Intermediate scrutiny (**substantially** related to **important** government interest) AND proof of **"exceeedingly persuasive justification"**

Question 38

Is **affirmative action based on gender** constitutional?

Answer 38

Yes, if necessary to achieve a compelling governmental interest in remedying **past** discrimination based on gender

Question 39

**Voting** legislation is subject to what level of scrutiny?

Answer 39

If based on anything other than age, residency, or citizenship, **strict scrutiny applies.**

Question 40

List 4 examples of **voting regulations** that have been upheld

Answer 40

1. Reasonable **residency** requirements; 2. Reasonable **registration** requirements; 3. Reasonable **time and manner** regulations; and 4. Denial of voting rights to felons.

Question 41

What are four examples of **unconstitutional** voting restrictions?

Answer 41

1. Poll taxes; 2. Limiting school board elections to only parents and property owners 3. Counting votes using overly vague standards; and 4. Requiring political party registration for a general election (can be limited for primary elections)

Question 42

Restrictions on **travel** trigger what level of scrutiny?

Answer 42

strict scrutiny ⚠️ Note: Only interstate travel; international travel is not a protected right

Question 43

What is the **test** applied to **non-resident discrimination from the** Privileges & Immunities Clause?

Answer 43

There must be a **substantial** **connection** between the discrimination and a **substantial state interest**.

Question 44

List two examples of **constitutional** non-resident discrimination

Answer 44

1. Charging more for **recreational** licenses (hunting or fishing); and 2. Treating non-residents differently to preserve in-state **natural resources**

Question 45

List four examples of **unconstitutional** **non-resident discrimination**.

Answer 45

1. Charging higher fee for commercial licenses for non-residents 2. Commuter taxes applied only to non-residents 3. Limiting abortions to only local residents 4. Mandating that employers only hire state-residents

Question 46

Can states exclude **non-citizens** from jobs related to state governance (e.g. police officers, government officials, public school teachers)?

Answer 46

Yes

Question 47

1. Can a state ban all **write-in candidates** for the primary and general election? 2. Can a state refuse to put a candidate on ballot unless a minimum amount of voter support is shown? (e.g. via signatures, etc)

Answer 47

1. Yes, as long as there are reasonable, alternative methods of getting on the ballot 2. Yes

Question 48

Free Exercise Clause

Answer 48

Prohibits the government from outlawing or preventing the exercise of religious beliefs

Question 49

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?

Answer 49

Strict scrutiny Rational basis review

Question 50

Establishment Clause

Answer 50

Prohibits the government from **endorsing or supporting** a particular religion. Laws **promoting** a particular religion are subject to what level of scrutiny? Strict scrutiny

Question 51

What is the **3-part test** to determine whether a law violates the Establishment Clause?

Answer 51

**Lemon test:** 1. Action must have a **secular** (non-religious) **purpose**; 2. Primary effect must **neither advance nor inhibit** religion; and 3. 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)

Question 52

Are **tax deductions** given to parents of students in **religious schools** constitutional? Are **tax exemptions** for religious organizations constitutional?

Answer 52

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

Question 53

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?

Answer 53

1. Yes, as long as there are a **broad range of organizations** using the facilities and none are given preferential treatment. 2. Unconstitutional.

Question 54

1. Is posting the **Ten Commandments** in a classroom constitutional? 2. Is displaying the **Ten Commandments** on public property constitutional? 3. What is the constitutionality of **religious holiday displays** in public places (e.g. courthouse)?

Answer 54

1. No. 2. No, if the display has a "**predominantly religious purpose.**" If secular or historical purpose, may be considered constitutional. 3. Constitutional if surrounded by **other holiday symbols** that make it clear government is not promoting specific religion

Question 55

What is the **freedom of association**?

Answer 55

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**

Question 56

When can someone be **fired or prevented** from gaining public employment for association with a group?

Answer 56

1. D is active member of **subversive organization**; 2. D **knows** about the group's illegal activities; and 3. D has **specific intent** to further illegal activities

Question 57

What **oaths** can public employees be required to take?

Answer 57

1. Oath to support the **Constitution**; and 2. Oath to **oppose a legal or violent overthrow** of government

Question 58

Can the government **require disclosure** of group membership?

Answer 58

Yes, but if the disclosure would have **chilling effect**, restriction must meet strict scrutiny.

Question 59

When can the government regulate speech that is **incitement to violence**?

Answer 59

Regulation must be **narrowly tailored** and only aimed at: 1. Speech that promotes or directs **imminent illegal** action; and 2. Creates a "**clear and present danger**" of such action

Question 60

What is the 3-prong test to determine whether speech is **obscene**?

Answer 60

1. Appeals to "**prurient interests;”** *(community standard)* 2. Depicts or describes sexual conduct in a way that is **patently offensive** to *community standards* and applicable state law; and 3. Lacks serious **artistic, literary, political, or scientific value** as determined by *national standards*

Question 61

What is the **test** to determine whether regulation of **commercial speech** is constitutional?

Answer 61

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

Question 62

What does the **First Amendment** protect? Freedom of expression (speech, press, assembly, & association)

Question 63

Content-Based Restrictions

Answer 63

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.

Question 64

Viewpoint neutral restriction

Answer 64

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

Question 65

Content-neutral restriction

Answer 65

Applies neutrally to all content regardless of viewpoint or subject matter. Ex. time, place, or manner restriction **⭐️** Subject to **intermediate scrutiny** 1. the regulation is **narrowly tailored** 2. to achieve a **significant** government interest, AND 3. it **leaves open alternative channels of communication.**

Question 66

When will a regulation on speech in a ***traditional or designated* public forum** be upheld?

Answer 66

When forum is **open for speech** and: 1. Regulates **time, place, or manner** (i.e. is content-neutral); 2. Is **narrowly tailored to serve _significant_ government interest**; and 3. Leaves open **ample, alternative channels of communication**

Question 67

When is a restriction on speech in a **non-public forum** valid?

Answer 67

1. **Viewpoint neutral** (\*\*does not need to be content neutral); and 2. Reasonably related to a **legitimate** government purpose

Question 68

When can the government regulate **symbolic speech**?

Answer 68

1. Regulation furthers **important gov. interest**; 2. Interest is **unrelated** to suppression of the message; and 3. Impact on speech is **no greater than necessary** to achieve interest

Question 69

Is the media protected by the First Amendment for publishing a **lawfully obtained private fact?** (e.g. identity of a rape victim)

Answer 69

Yes, as long as story is matter of **public concern** (i.e. newsworthy)