Con Law: Individual Rights Flashcards
Constitutional protection of individual rights
Constitution protects against wrongful conduct by the government, not private parties
Requirement to sue for individual rights against private party
A private person’s must constitute state action for constitutional protections to apply.
State action
a private party exercises state action when
(1) it carries out traditional governmental functions exclusively performed by the state or
(2) when there is significant state involvement in the activities.
Significant state involvement is found when
(1) Sufficient mutual contacts between conduct and gov such that the government is pervasively entwined (e.g., overlapping membership, Board oversight, and inclusion of association employees in the state’s health and retirement programs) or mutual benefit results or
(2) State control (State must act affirmatively to facilitate, encourage, or authorize the activity).
© Mere licensing/regulation of private party is not significant state involvement.
Procedure DP is implicated when
when there is government actions that intentional take life, liberty or property.
Procedural DP requires
process (notice, hearing and a neutral decisionmaker)
Deprivation of liberty examples
physical injury, restriction of legal rights
Deprivation of property–government employment
you have a property interest in government job when you have a legitimate entitlement to continued job or benefit.
Legitimate entitlement for jobs if contractual term or discharge only “for cause”
Deprivation of property–government benefits
you have a property interest in government benefits when you have a legitimate entitlement
Procedural DP for welfare benefits:
must give notice and hearing BEFORE terminating welfare benefits,
© disability benefits, the state must give prior notice, but only a post-termination evidentiary hearing.
Procedural DP for termination of government job
must give notice and hearing BEFORE termination, unless there’s significant reason for immediate removal.
Procedural DP for drivers license revocation
must give notice and hearing BEFORE termination
Procedural DP for disability benefits:
must give notice before deprivation, but hearing can occur after, as long as prompt and fair
Procedural DP for academic suspension
must give notice before deprivation, but hearing can occur after, as long as prompt and fair
© Not entitled to a hearing with regard to dismissal for academic reasons from college
Procedural DP for seizure of property under forfeiture statutes
must give notice and hearing BEFORE seizure, unless strong justifications for seizing before notice.
Substantive Due Process: standards of review
strict: fundamental rights
rational basis: non-fundamental rights
Strict scrutiny:
law must be necessary (least restrictive means) to accomplish a compelling government interest.
BoP under strict scrutiny:
government bears the burden to show that the law is necessary and there’s a compelling interest
Intermediate scrutiny:
law must be substantially related to an important government interest
BoP under intermediate scrutiny
government bears the burden to show that the law is substantially related to an important government interest
Rational basis:
law must be rationally related to a legitimate interest.
BoP under rational basis:
challenger bears the burden to show law is arbitrary or irrational
Equal Protection Clause
If law denies fundamental right to everyone—DP violation;
If law denies fundamental right to some—EP violation
Constitutional basis of Equal Protection
5th DP to federal government;
14th DP and EP for states and localities
Equal Protection Clause: standards of review
Strict scrutiny: Fundamental rights or Suspect classification Intermediate: Quasi-suspect class Rational basis: Nonsuspect class
Equal Protection Clause: discriminatory intent requirement
To trigger strict or intermediate scrutiny, P must show law has a discriminatory intent and disparate effect.
If no discriminatory intent, rational basis
Equal Protection Clause: discriminatory intent is found when
Discriminatory intent can exist if
(1) explicit on the face of the law;
(2) history of discriminatory application; or
(3) evidence of discriminatory purpose of the legislators
Constitutionality of in-state residency requirement for government benefits
Once a person qualifies as a resident, must be treated equally. (Fundamental right to interstate travel).
© welfare benefits: in-state residency req permitted if reasonable (30-90days).
© Political participation: same as above
Constitutionality of in-state residency requirement for voting
fundamental right to vote for citizens 18+
© In-state residency requirement for short term (30days) is OK. States control residency requirement for all elections except presidential (Congress controls).
© Felons: State may prohibit felons from voting (even if unconditionally released) under 14th.
One person, one vote: rule and exception
requires district of approximately equal size (# of voters) whenever representatives are elected by district.
© highly specialized government (e.g. for water right distribution)
© state may draw its legislative districts on the basis of total population rather than eligible or registered voters.
Racial gerrymandering: definition and rule
Voter dilution to draw district to scatter minorities so that they don’t become a critical mass in any district.
Unconstitutional if done with a discriminatory purpose
Test for affirmative racial gerrymandering
In drawing district lines, race may be a factor but not the predominant or the only factor.
© OK if it passes strict scrutiny (by showing the district was drawn in compliance with federal Voting Rights Act)
Political gerrymandering
is nonjusticiable
Constitutionality of limitation on ballot access
A person’s right to vote does not extend to the right to vote for any possible candidate.
A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot.
Constitutionality of requiring open primary
State cannot require a local party to participate in an open primary to choose presidential electors where the national party has required that electors must be chosen only by party members.
Open primary: a primary in which any voter in the state may vote in a political party’s primary.
Right to abortion
scope of right
A woman has a right to terminate pregnancy until fetus becomes viable (able to live on its own outside the womb). After then, state can impose restrictions to preserve mother’s health.
State is not constitutionally required to permit abortions at a state owned or operated facility.
Right to abortion
standard of review
permissive limitations
Strict scrutiny before fetal viability: A state cannot place an “undue burden” on woman’s right to abortion before fetal viability. — passed if not undue burden.
Permissive limitation: informed consent, 24h waiting, parental notification, judge consent (not just parent)
Fundamental right to privacy - list
Fundamental right to parent:Parents can raise their children however they see fit
Fundamental right to marry, contraceptions, right to live with close relatives
Fundamental right to read obscene material, right to refuse medical treatment
Suspect Classification:
Race, US Citizenship
Constitutionality of affirmative action
is allowed when it specifically corrects past discrimination by the specific agency/dept,
© general societal discrimination insufficient.
Constitutionality of preferential racial admission:
is allowed if racial preferences are essential to achieve a diverse student body and diversity is essential to education.
Constitutionality of preferential racial admission: exceptions
© Racial quota not allowed.
© Preferential admissions for secondary schools not allowed.
Standard for states/local classifications based on US citizenship
strict scrutiny, usually invalid.
© rational basis for state laws that restrict or prohibit an alien’s participation in government functions (e.g. police jobs, public school teacher jobs, voting, jury)
Standard for federal classifications based on U.S. citizenship
No strict scrutiny; valid unless arbitrary and unreasonable
© strict scrutiny for federal classification based on national origin.
Standard for quasi-suspect classification
Gender, legitimacy.
Standard for gender classifications
intermediate scrutiny; are almost always invalid
© statutory rape, draft
Standard for legitimate child classifications
intermediate scrutiny; are almost always invalid
law involving nonmarital children/ depends on whether parents were married at the time
Standard for age based classification
rational basis scrutiny
© Statute bars age discrimination in employment
Standard for wealth-based classification
rational basis scrutiny
© Indigent: Government must waive filling fees for indigent when charging fees would deny a fundamental right. (e.g. divorce fee, criminal appeal, appeal of parental right termination). does not include bankruptcy
Fundamental rights
(i) the right to interstate travel;
(ii) the right to vote; and
(iii) the right to privacy (including marriage, sexual relations, abortion, child rearing, and the right of related persons to live together
Fundamental right to interstate travel
strict scrutiny.
© State can impose reasonable in-state residency req (30-90days) for political participation and some government benefits. 1 year before qualifying for in-state tuition.
Strict scrutiny not passed: 1 year residency req for full welfare benefits / 1 year residency req as a condition to an indigent’s receiving medical care at the county’s expense.
Not compelling interests: interests in discouraging fraud, to save money
