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BAR > con law - individual rights > Flashcards

con law - individual rights Flashcards

1
Q

Equal Protection & levels of scrutiny

A
  • Government is treating certain people DIFFERENTLY
  • Strict scrutiny: race, alienage, national origin
    • Government has the burden
    • NECESSARY to achieve a COMPELLING interest
  • Intermediate: gender, illegitimacy (illegitimate children)
    • Government has the burden
    • SUBSTANTIALLY related to IMPORTANT interest
  • Rational basis: everyone else
    • P has the burden
      RATIONALLY related to LEGITIMATE interest
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2
Q

Substantive Due process

A
  • Government regulating/depriving a right for ALL PEOPLE
  • Fundamental rights = strict scrutiny
    Non-fundamental right = rational basis
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3
Q

Fundamental rights

A
  • Right to vote, free speech, INTERstate travel, privacy rights
  • Privacy rights: contraception, marriage, procreation, PRIVATE education, right to raise family
  • NOT abortion (prior: undue burden test)
    Strict scrutiny under substantive DP
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4
Q

Procedural due process

A
  • Notice and hearing (no levels of scrutiny)
  • Property rights deprived
    • Governmental jobs
    • Licenses
    • Public benefits
      Rights must be vested (earned)
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5
Q

5th amendment

A
  • Applies to federal government. Fed/congress law.
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6
Q

14th amendment

A
  • Applies to state. State law.
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7
Q

Privileges and immunities

A
  • State passes law that treats NON-RESIDENTS differently
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8
Q

13th vs 15th amendments

A
  • 13th banned slavery. Private individuals CANNOT racially discriminate. No state action required.
    15th: voting AND racial discrimination
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9
Q

Takings clause

A

1) Government taking private property
2) For public use (any overall public benefit)
With just compensation

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10
Q

Inverse condemnation

A
  • Gov not taking but condemns you the economic benefit of the land
  • Value left is worth NOTHING
    Must give just compensation
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11
Q

Establishment clause

A
  • Government cannot pass a law that formally establishes a religion
    Regulations must be religiously NEUTRAL or based on history/traditions (founding fathers)
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12
Q

Free exercise clause

A
  • Government must remain neutral on practice of religion
  • A law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
    Must not have INTENT to discriminate a religion
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13
Q

Speech

A
  • Government can’t ban but can regulate
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14
Q

Content based regulation

A
  • government stops the message
    Triggers Strict scrutiny (necessary/compelling - that regulation is the least restrictive means)
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15
Q

Content-neutral regulation

A
  • regulation on time, place, and manner (where, when, and how)
  • Generally constitutional if (form of intermediate scrutiny)
    1. Furthers significant governmental interest
      Leaves open alternative means of communication
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16
Q

Public forum (content-neutral)

A
  • Streets and parks
  • Must further significant governmental interest
  • Leave open alternative means of communication
    Nonpublic forum (content-neutral)
  • Billboards, signs and buses
    Reasonably related to a legitimate governmental interest
17
Q

Not protected speech

A

Obscenity, clear and present danger, fighting words, commercial speech, false and misleading ads

18
Q

Obscenity

A
  1. A prurient interest in sex - objective local community standards
  2. Depicts sex in a patently offensive manner - community standard
    Lacks any serious literary, artistic, political or scientific value - national standard
19
Q

Clear and present danger

A
  1. Speech incites imminent violent action
    Likely to produce violence
20
Q

Fighting words

A
  • Harsh language likely to incite an average person to commit violence
21
Q

Commercial speech

A
  • Business related speech
  • REASONABLE fit to a SUBSTANTIAL interest
    Narrowly tailored
22
Q

False/misleading ad

A
  • Speech that provides false or misleading info
    Not protected
23
Q

Unfettered discretion

A

Government officials cannot choose/prefer one form of speech over another

24
Q

Overbroad and vague speech

A
  • Statute cannot be too broad or too vague
    Keywords: any or all
25
Q

Prior restraint

A
  • gov stops speech before it is published
    Injunction, gag orders

unconstitutional

26
Q

Bill of attainder

A
  • Cannot expressly PUNISH an individual or named group of people
27
Q

Ex Post Facto

A
  • Law that retroactively makes action illegal UNCONSTITUTIONAL
28
Q

Contracts Clause

A
  • STATE cannot EXPRESSLY impair your ability to enter a contract
29
Q

State Action rule

A
  • There must be state/government action to violate the constitution
    Unless nexus between individual and government

BAR (19 decks)

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