Con Law - Individual Rights Flashcards
Who does the Bill of Rights apply against?
The federal gov’t, not the state.
However, most BoR protection, but not all, have been applied against state and local gov’t through the DPC. “Fundamental to the U.S. scheme of justice”
Does the Const. protect individual rights against private action?
No, only state action except for the 13th amendment (slavery).
Further, mere licensing or being under state regulation is not enough to transform private action to state action.
How does the Contract Clause limit a state’s ability to pass retroactive legislation?
States may not by legislation substantially impair pre-existing contracts, unless the law serves an overriding public need, and the law is reasonable and narrowly tailored means or meeting that need.
May Congress or the states pass ex post facto laws (retroactive legislation)? [Three types of ex post facto law]
Yes for civil statute.
No for criminal statutes.
An ex-post facto law is any legislation that:
(a) Retroactively finds acts criminal
(b) Increase punishment for crime already committed.
(c) Reduce the evidence of committed.
What is the ban on bills of attainder?
Prohibits any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial.
What does procedural due process require?
If the gov’t deprives you of a life, liberty, property interest, it must follow procedures to insure it is acting fairly and accurately. This requies
(1) Notice (reasoanbly calculated to inform the person of an action against him) AND
(2) An opportunity to be heard.
This applies to adjudicative-type acts, not legislation.
Procedural Due Process: Q1 - Was there a deprivation of a life, liberty, or property interest?
Deprivation = intentional, not merely negligent act.
Liberty interest? Physical liberty or loss of legal rights [constitutional/statutory]
Property Interest?
(i) convention real and personal property (ii) gov't benefits (iii) gov't employment
Key concept = entitlement. Entitlement is property. A mere expectancy is not.
Procedural due process: Q2 - What proces is due?
Minimum due process requires notice and opportunity to be heard.
Opportunity to be heard must usually be before deprivation unless gov’t shows a significant need to act first and answer questions later.
What are three balancing factors courts must consider to determine actual procedures for procedural due process?
(1) Nature of the individual’s interest.
(2) Whether the gov’t procedures are to result in erroneous deprivation (is gov’t going to make a mistake?)
(3) Nature of the Gov’t interest
* mere cost savings is not enough
Must the gov’t waive filing fees for the indigent to fulfill procedural due process?
Yes, if charging the fee would result in the denial of a fundamental right.
Divorce –> Yes
Bankruptcy –> NO.
What does the Takings Clause protect against?
Neither the federal gov’t (5th amendment) nor the states (14th amendent) may take private property without just compensation.
Any taking must be for a public use [very broad] and
Just compensation = fair market value.
What is a taking? [Three types]
(1) Physical invasion or occupation - No matter how tiny and even if temporary.
(2) Regulatory taking - ordinarily, regulations that restrict a property’s use of property (zoning laws) are not taking so long as the regulation reasonably advances a legitimate state interest and leaves and economically viable use for the property.
(3) Conditional Permit - For building permit, gov’t may impose certain conditions. These conditions must be a rough proportionality or connectedness between the impact of the proposed development and the condition.
What is the one “breath of life” in the Privileges and Immunities of National Citizenship?
Protects the right to become a citizen of any state and once a bona-fida residents to enjoy the same rights given to other residents.
What is the standard of review for strict scrutiny?
The gov’t must prove that the law is necessary to achieve a compelling interest.
No presumption of constitutionality.
What is the standard of review for intermediate scrutiny?
The gov’t must prove that the law substantially serves an important interest.
No presumption of constitutionality.
What is the standard of review for rational basis?
The PLAINTIFF must prove that the law lacks a rational basis and is unrelated to any legitimate objective. Law is presumed constitutional.
Applies to discrimination based solely on wealth, age, mental or physical disability, whether one drinks or smokes.
Law usually upheld. Can fail if discriminates based solely on fear, hatred, or ill will.
What does the equal protection clause protect against?
(Focus on the bases on which the gov’t treats people differently, that is, how it classifies people.
The Law must intentionally and purposefully discriminate on the basis of certain class. (i.e race, alienage, gender, or illegitimacy.
How can “intentionally and purposefully” discrimination be shown?
(1) The Law intentionally discriminates on its face.
(2) The law is neutrally written, but intentionally and purposefully applied to discriminate.
* Have to show more than a disproportionate impact or effect. Must be purposeful discrimination. Must prove at the very lease that invidious discrimination was a motivating fact in the gov’t action.
Are courts allowed to order race-based remedies?
Yes, empowered to use race-based remedies to redress past de jure (concerning the law) discrimination.
However, the scope of a remedy is limited by the scope of the violation.
Do voluntary affirmative action plans survive strict scrutiny?
Yes, government agencies have a compelling interest in specifically correct their prior discrimination against minorities. Must be precisely tailored.
Will not survive on the basis that is marking up for past SOCIETAL discrimination.
What is the standard for using racial preferences in University Admissions? Elementary and High School?
University - Achieving a diverse student body is a compelling interest, but narrow tailoring is required. Race can be plus factor, but no quotas or set asides.
Use of race in assigning student in elementary and high school founds invalid b/c pursuit of racial balancing and not an individualistic assessment.
What standard applies to Congress for discrimination based on alienage?
Rational Basis
Congress is given broad power to control immigration and naturalization, federal discrimination against aliens, such as denying non-citizens federal welfare benefits is judged under a lenient rational basis test.
