Con Law: Protection of Individual Liberties

Question 1

Is there government action?

Answer 1

The Constitution applies only to government action
BUT congress by statute may apply constitutional norms private conduct.
Exceptions: where where private conduct must comply with the Constitution (PFE, Entanglement)

Question 2

Pursuant to Thirteenth Amendment (which prohibits slavery and involuntary servitude)–what else can Congress prohibit?

Answer 2

Can prohibit private race discrimination and has broad powers to adopt laws to enforce this provision.
*only slavery on its own violates 13A not discrimination.

Question 3

Pursuant to what clause can the Congress apply constitutional norms to private conduct as it did when it adopted the Civil Rights Act of 1964?

Answer 3

The Commerce Clause

Question 4

Congress cannot use Section 5 of the 14A regulate what behavior?

Answer 4

Cant regulate private behavior–only to regulate state and local government.

Question 5

Public Function Exception

Answer 5

Constitution applies if a private entity is performing a task traditionally, exclusively done by government.

Question 6

Entanglement Exception

Answer 6

The Constitution applies if the government affirmatively authorizes, encourages or facilitates unconstitutional activity.

Question 7

Courts cannot enforce:

Answer 7

Racially restrictive covenants

Question 8

There is state action when:

Answer 8

1. Government leases premises to restaurants that racially discriminates.
2. State provides free books to private schools that racially discriminate
3. A private entity regulates interscholastic sports within a state.

Question 9

There is no state action when”

Answer 9

1. A private school that is over 99% funded by the government fires a teacher because of her speech.
2. The NCAA orders the suspension of a basketball coach at a state university.
3. A private club with a liquor license from the state racially discriminates.

Question 10

Bill of Rights applies to Fed government.
Also to State and local government through its incorporation into the due process clause of the 14th A.
EXCEPT:

Answer 10

1. 3A right to not have soldier quartered in persons home
2. 5A right to grand jury indictment
3. 7A right to jury trial in civil cases
4. 8A right to excessive fines.

Question 11

Levels of Scrutiny:

Answer 11

1. Rational Basis Test
2. 3.

Question 12

Rational Basis Test: Law upheld IF:

Answer 12

RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT BASIS

BoP on person challenging the law

Question 13

Intermediate Scrutiny: Law Upheld IF:

Answer 13

SUBSTANTIALLY RELATED to an Important government purpose.
BoP is unclear–but usually government
Applies to Regulations involving quasi-suspect classifications( gender and legitimacy).

Question 14

Strict Scrutiny: Law Upheld IF:

Answer 14

it is NECESSARY to achieve a COMPELLING government purpose.
Usually invalidated – least restrictive alternative test
BoP on government
Applies to regulations affecting Fundamental rights or suspect classifications (race, national origin and alienage).

Question 15

Procedural Due Process

Answer 15

Procedures a government must follow to take away someone’s life, liberty or property.

Question 16

Any taking can be broken down into two questions:

Answer 16

1. Has there been a deprivation of life, liberty, or property?
2. If there has been a deprivation (and only if.. ) then we ask: What procedures are required?

Question 17

A deprivation of liberty occurs when

Answer 17

There is loss of a significant freedom provided by Constitution or a statute

Question 18

A deprivation of property occurs if a person has an entitlement which means

Answer 18

A reasonably expectation to the continued receipt of a benefit and that entitled is not fulfilled.

Question 19

Government negligence is not sufficient for a deprivation of due process. Generally, there must be:

Answer 19

INTENTIONAL GOVT ACTION or at least RECKLESS action for liability to exist.

Question 20

In emergency situations, government is only liable if:

Answer 20

Conduct SHOCKS the CONSCIENCE.

Question 21

If there has been a deprivation– what are the procedures?

Answer 21

3 part balancing test

1. Importance of interest to individual
2. Ability of additional procedure to increase the accuracy of the fact-finding, and
3. The government’s interest is usually administrative efficiency and saving money for the government.

Question 22

Examples of procedures:

(a) welfare benefits:
(b) Permanent termination of Parent’s right to custody:
(c) Except in emergency before an adult can be institutionalized:
(d) For institutionalizing a child,

Answer 22

(a) Both notice & hearing
(b) Both notice & hearing
(c) Both notice & hearing
(d) there need be only a screening by neutral fact finder

Question 23

Substantive Due Process:

Answer 23

Protecting economic and safeguarding property

Ask whether the government has an adequate reason for taking away a person’s life, liberty, or property.

Question 24

The Constitutional provides only minimal protection for economic liberties

Answer 24

Only rational basis test is used for laws affecting economic rights.
The takings clause of the Fifth A

Question 25

The takings clause of 5th A–> the government may take private property for public use but only if it provides

Answer 25

just compensates, or terminates regulation and pay damages that incurred while the regulation was in effect. Here, the court does not use the levels of scrutiny, but rather a separate test for the takings clause

Question 26

First ask if there is a taking?

Answer 26

There are two alternative ways of finding a taking: a)Possessory taking –
b) Regulatory taking–

Question 27

Possessory Taking

Answer 27

government confiscation or physical occupation of property is always a taking

Question 28

Regulatory Taking

Answer 28

Government regulation is a taking if it leaves no reasonable economic viable use of the property.

Question 29

Government conditions on the development of property must be justified by a

Answer 29

Benefit roughly proportionate to burden imposed otherwise it is a taking.

Question 30

A property owner may bring a takings challenge to regulations

Answer 30

That existed at the time the property was acquired

Question 31

Temporarily denying an owner use of property (developing property)

Answer 31

Is not a taking so long as government’s action is reasonable

Question 32

Government action that amounts of a temporary appropriation or physical invasion of property may amount to a taking

Answer 32

1. Is it for public use– SC has said that a taking is for public use so long as the government acts out of reasonable belief that taking will benefit public
2. Is just compensation paid? Just compensation is measured in terms of loss to the owner in reasonable market value terms; the gain to the government is irrelevant.

Question 33

The contract clause is found in Article I, Sec 10, of the Constitution. It limits:

Answer 33

The ability of states to enact laws that retroactively impair contract rights; it does not affect contracts not yet made.

Question 34

Provisions of the contract clause:

Answer 34

1. Clause applies only to state or local interference with already existing contracts
2. State and local governments may interfere with existing private contracts if intermediate scrutiny is met. Test(see card)
3. State or local interference with government contracts must meet strict scrutiny.

Question 35

The language for the test in this situation is:

Answer 35

1. Does the legislation substantially impair a party’s rights under an existing K?
2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Question 36

Constitution says neither the federal or state govt can adopt ex post facto clauses– ex post facto clause does not apply to:

Answer 36

Does not apply to civil cases only criminal cases

Question 37

Privacy is a fundamental right protected under substantive due process– what standard used?

Answer 37

Strict scrutiny.

Question 38

What are some privacy Rights?

Answer 38

1. Marriage
2. Procreate
3. Right to custody of one’s child
4. Right to keep family together
5. Right of parents to control upbringing
6. Contraceptives
7. Abortion
8. Right to engage in private consensual same sex activity
9. Right to refuse medical treatment

Question 39

The second amendment Right to bear arms

Answer 39

SC has held that individuals have a right to have weapons for self-defense but has NOT specified the level of Scrutiny to be used.

Question 40

Right to Travel

Answer 40

Laws that prevent people from moving into a state must meet strict scrutiny
Durational requirements to get benefit–strict scrutiny
SC said for voting–50 days max durational residency req.
No fundamental right to international travel–so rational test

Question 41

Right to Vote

Answer 41

Strict scrutiny
One person-one vote must be met for all state and local elections
At large elections –are constitutional unless proof of discriminatory impact
Use of race in drawing election district lines–strict scrut.
Counting uncounted votes without standards in presidential election violates equal protection.

Question 42

No fundamental right to education under

Answer 42

Equal protection or US constitution.