Con Law - Overview Flashcards

Question

INDIVIDUAL RIGHTS - Prohibitions Against Retroactive Legislation

Answer 1

1. Contracts Clause—applies only to states a. Prevents only substantial impairment of a party’s rights under an existing contract b. Exception—law valid if: 1) Serves an important interest; and 2) Is narrowly tailored to promote that interest c. Public contracts subject to stricter scrutiny 1) State cannot be obligated to refrain from exercising its police power 2) Law should not broadly repudiate government contractual obligations 2. Ex post facto laws—prohibited a. Makes criminal an act that was innocent when done b. Prescribes greater punishment than what was prescribed when act was committed c. Reduces evidence required to convict d. Specifically applies only to legislation, but due process prohibits similar changes by the courts 3. Bills of attainder—prohibits laws inflicting punishment without a trial on people by name or past conduct

Answer 2

1. Two Due Process Clauses: 5th Amendment (federal government); 14th Amendment (states) 2. Requires fair process/procedure when government acts intentionally to deprive a person individually of life, liberty, or property a. Both actual bias and serious risk of actual bias unconstitutional b. Liberty includes losses of significant freedom of action c. Property includes legitimate claims/entitlements to government benefits 1) Public employment is a property right if claim to entitlement through contract, policy, law, etc. 3. Balancing test for determining fair process in terms of timing (pre- vs. post-depriva- tion) and scope of hearing. The Court weighs: a. Importance of individual right b. Value of specific procedural safeguard involved c. Governmental interest in fiscal and administrative efficiency

Answer 3

1. If government takes land for public purpose, it must provide just compensation 2. Public purposes liberally construed 3. Actual or physical appropriation almost always a taking, even if property taken is small a. Exception: Emergencies 4. Use restrictions (action for inverse condemnation) a. Denial of all economic value—taking b. Decrease in economic value—generally not a taking if economically viable use remains c. Dedications—cannot condition building permits on forced dedication unless: 1) Government can show legitimate interest, and 2) Adverse impact of development roughly proportional to owner’s loss 5. Just compensation—reasonable (fair market) value of property taken at time of taking extra note from Q's: The court will consider (i) the social goals sought to be promoted, (ii) the diminution in value to the owner, and (iii) whether the regulation substantially interferes with distinct, investment-backed objectives.

Answer 4

1. Two Due Process Clauses: 5th Amendment (federal); 14th Amendment (states) 2. Prohibition against unreasonable laws 3. Reasonableness test depends on interest involved a. Fundamental right (voting, interstate travel, privacy, 1st Amendment rights)— strict scrutiny 1) Government must prove action is necessary to achieve a compelling government interest b. All other interests—rational basis 1) Challenger must prove action not rationally related to any legitimate government interest 4. Requires laws to give fair notice of conduct that is forbidden or required

Answer 5

1. 14th Amendment prohibition against unreasonable discrimination by states 2. Test for reasonableness depends on criteria used to classify (suspect or quasi- suspect class) and nature of right (fundamental right) a. Discriminatory intent by government: 1) Law discriminatory on its face 2) Discriminatory in application 3) Discriminatory motive 4) If facially neutral, no discriminatory application, and no discriminatory motive, then rational basis test applies b. Suspect classification (race and national origin) or fundamental right—strict scrutiny 1) Government must prove action is necessary to achieve a compelling government interest 2) Affirmative action (favoring minorities) invalid unless: a) Seeking to remedy past discrimination within jurisdiction 3) Race can be a factor considered in admission of students in institutions of higher education to achieve a diverse student body a) Cannot be a special/weighty factor 4) Alienage can be considered for state employment positions involving the self-government process—including police officers and primary and secondary schoolteachers c. Quasi-suspect classification (sex and legitimacy)—intermediate scrutiny 1) Government must show discrimination is substantially related to an impor- tant government interest 2) Sex discrimination—exceedingly persuasive justification required a) Interest must be genuine and not hypothesized d. All other classifications—rational basis standard

Answer 6

1. Competing interests—mother’s right to privacy vs. fetus’s interest in becoming a child 2. Pre-viability—no undue burdens on right to obtain an abortion 3. Post-viability—may prohibit abortion except when woman’s health threatened 4. No right to government funding of abortion services

Answer 7

—marriage, use of contraceptives, obscene reading material in the home (except child pornography), living with extended family, to educate and raise children 1. Limitations generally subject to strict scrutiny or at least intermediate scrutiny but language in cases not consistent 2. Intimate private, noncommercial sexual contact between fully consenting adults—no legitimate government interest in regulating

Answer 8

1. Short residency requirement (e.g., 30 days)—valid 2. One person, one vote a. Congressional elections—almost exact mathematical equality required (a few percentage points may be fatal) b. State and local elections—variance not unjustifiably large (16% variance upheld) 3. Fees—cannot preclude indigent candidates

Answer 9

1. Durational residency requirements for dispensing benefits ordinarily subject to strict scrutiny (30-day period probably okay; one year invalid) 2. Distinctions between old and new residents—invalid

Answer 10

1. 1st Amendment limits government regulation of private speech 2. 1st Amendment inapplicable to government speech a. Permanent monuments on government property a form of government speech b. Government funding of private speech—generally must be viewpoint neutral 1) Exception: Government funding of the arts 3. Regulation of speech based on content—generally prohibited a. Exceptions: Unprotected categories (see 7., infra) b. Speech of government employees 1) Official duties—government may punish public employee for unwanted speech made as part of employee’s official duties 2) Private speech of government employee a) Matter of public concern—balance employee’s right as a citizen to comment against government’s interest as employer in efficient performance of public service b) Not a matter of public concern—employer has broad discretion to punish employee’s disruptive speech 4. Overbreadth and vagueness a. Prohibition against substantially more speech than necessary voidable as to affected person for overbreadth b. Prohibition including a substantial amount of protected speech compared to its legitimate sweep—void as to everyone c. Regulation failing to give reasonable notice of what is prohibited has chilling effect on speech and violates due process d. Official cannot have unfettered discretion over speech issues 5. Scope of speech—includes freedom to refrain from speaking a. Mandatory financial support of government speech—no 1st Amendment concerns b. Mandatory financial support of private speech—protected c. Speech includes symbolic conduct 6. Time, place, and manner regulation a. Public forums (e.g., sidewalks and parks) and designated public forums (e.g., schoolrooms open for use after school for social events)—regulation will avoid strict scrutiny and be upheld if: 1) Content neutral 2) Narrowly tailored to serve an legitimate government interest 3) Leaves open alternative channels of communication b. Limited public forums (that is, public property open for expressive activities only on a ceratin topic) and nonpublic forums (that is, public property not open for expressive activities)—regulation valid if: 1) Viewpoint neutral 2) Reasonably related to a legitimate government purpose 7. Unprotected speech—some speech is not protected by 1st Amendment: a. Clear and present danger of imminent lawless action b. Fighting words (including true threats) 1) Statutes often overbroad or vague c. Obscenity 1) Test: a) Appeals to the prurient interest in sex; b) Portrays sex in a patently offensive way; and c) Does not have serious literary, political, or scientific value judged from a national standard 2) Standard for minors may be different 3) Can prohibit pictures of minors engaging in sex that would not be obscene if engaged in by adults 4) Zoning ordinances may limit the location of adult entertainment establishments if designed to reduce the secondary effects of such businesses (e.g., rise in crime, reduction of property values) d. Defamation 1) Public official or figure—plaintiff must prove actual malice a) Actual malice = knowledge of falsity or reckless disregard as to truth 2) Private individual suing on matter of public concern—must prove at least negligence 3) Privacy torts—media defendant cannot be sued for publishing a true fact about a public record lawfully obtained 8. Commercial speech a. If speech about unlawful activity or untrue or misleading speech—unprotected b. Speech regarding lawful activity and not false or misleading—regulation valid if it: 1) Serves a substantial government interest 2) Directly advances that interest 3) Is narrowly tailored to serve that interest c. Complete bans usually invalid 9. Prior restraints a. Invalid unless justified by a special societal harm or pursuant to contract b. Procedural safeguards 1) Standards must be narrowly drawn, reasonable, and definite 2) Injunction must be sought promptly 3) There must be a prompt and final determination of validity of restraint c. Broadcast media may be more closely regulated than press; cable TV between the two; Internet regulation subject to strict scrutiny

Answer 11

1. Electoral process—sliding scale to judge restrictions on electoral process a. Severe restriction on 1st Amendment activity must be narrowly tailored to achieve a compelling purpose b. Reasonable and nondiscriminatory regulations generally valid 2. Government employees may be sanctioned for speech undertaken as part of official duties; balancing test determines whether other speech may be sanctioned—right to comment on matter of public concern vs. government interest in efficient and orderly workplace 3. Loyalty oaths for federal employees and public officials permissible if not overbroad a. Oath to support the Constitution and to oppose illegal overthrow of government okay 4. Disclosure of associations for government benefits/employment a. Permissible if relevant to position 5. School sponsorship of extracurricular clubs a. Can be content based if viewpoint neutral and reasonably related to a legitimate government interest

Answer 12

1. Free Exercise Clause a. No punishment of beliefs—total freedom to believe as desired b. Conduct cannot be punished solely because religious c. General conduct regulation that incidentally burdens religious practice—generally valid d. Religious exemptions for religious belief generally not required except: 1) Amish from mandatory secondary education 2) Conscientious objectors who refuse munitions work from unemployment compensation laws requiring applicants to accept any job 2. Establishment Clause—government action/law respecting the establishment of religion valid if action/law: a. Has a secular purpose b. Has a primary effect that neither advances nor prohibits religion c. Does not cause excessive entanglement between government and religion 1) Prayer in public schools generally prohibited 2) Invocation prayer at legislative sessions and town hall meetings generally valid (recognizes long history of prayer in America and adults not of tender impressionable years) 3) Religious symbols in Christmastime displays valid if accompanied by nonre- ligious symbols (recognizes historic roots of American Christmas holiday) 4) Displays of religious symbols (e.g., the Ten Commandments) on public property invalid if shown to have a predominantly religious purpose

Answer 13

A public employee who is subject to removal only for "cause" has a property interest in his job and must be given notice of the charges against him that are to be the basis for his job termination, and a pretermination opportunity to respond to those charges.

Answer 14

Other than streets, sidewalks, parks, and designated public forums, most public property (including a court building and its grounds) is considered to be a limited public forum or a nonpublic forum.

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Con Law - Overview Flashcards

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