con law - individual rights

Question 1

Equal Protection & levels of scrutiny

Answer 1

• 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

Question 2

Substantive Due process

Answer 2

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

Question 3

Fundamental rights

Answer 3

• 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

Question 4

Procedural due process

Answer 4

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

Question 5

5th amendment

Answer 5

• Applies to federal government. Fed/congress law.

Question 6

14th amendment

Answer 6

• Applies to state. State law.

Question 7

Privileges and immunities

Answer 7

• State passes law that treats NON-RESIDENTS differently

Question 8

13th vs 15th amendments

Answer 8

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

Question 9

Takings clause

Answer 9

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

Question 10

Inverse condemnation

Answer 10

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

Question 11

Establishment clause

Answer 11

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

Question 12

Free exercise clause

Answer 12

• 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

Question 13

Speech

Answer 13

• Government can’t ban but can regulate

Question 14

Content based regulation

Answer 14

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

Question 15

Content-neutral regulation

Answer 15

• 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

Question 16

Public forum (content-neutral)

Answer 16

• 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

Question 17

Not protected speech

Answer 17

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

Question 18

Obscenity

Answer 18

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

Question 19

Clear and present danger

Answer 19

1. Speech incites imminent violent action
   Likely to produce violence

Question 20

Fighting words

Answer 20

• Harsh language likely to incite an average person to commit violence

Question 21

Commercial speech

Answer 21

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

Question 22

False/misleading ad

Answer 22

• Speech that provides false or misleading info
  Not protected

Question 23

Unfettered discretion

Answer 23

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

Question 24

Overbroad and vague speech

Answer 24

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

Question 25

Prior restraint

Answer 25

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

unconstitutional

Question 26

Bill of attainder

Answer 26

• Cannot expressly PUNISH an individual or named group of people

Question 27

Ex Post Facto

Answer 27

• Law that retroactively makes action illegal UNCONSTITUTIONAL

Question 28

Contracts Clause

Answer 28

• STATE cannot EXPRESSLY impair your ability to enter a contract

Question 29

State Action rule

Answer 29

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