Constitutional Framework for Protection of Individual Liberties

Question 1

What is the exception to the rule that the Constitution applies to public/state action?

Answer 1

13th Amendment

Question 2

When can the actions of private individuals be considered state action?

Answer 2

Where the private individual/entity is performing an exclusive public function or where there is significant state involvement

Question 3

When is a private individual performing an exclusive public function?

Answer 3

When they perform a function traditionally the exclusive prerogative of the state (running a town, conducting an election, running a prison)

Question 4

When is there significant state involvement in private conduct such as to make it state action?

Answer 4

Where a state affirmatively facilitates, encourages, authorizes, or is entwined with the challenged private conduct
Examples: enforcing racially restrictive covenants (Shelley); leasing property to a racially discriminatory lessee where the state derive extra benefits from the discrimination (Burton); administering a private discriminatory trust; an association of public and private schools dominated by public schools and run by public school officials during school hours (Brentwood)
Not significant state involvement: NCAA (association of public and private universities); state grant of liquor license to discriminatory private club (moose lodge); granting corporate charter

Question 5

Which rights in the bill of rights have not been incorporated against the states and their political subdivisions?

Answer 5

3A right not have soldiers quartered in the hold
5A right to grand jury indictment
7A right to jury in civil cases

Question 6

What are the three constitutional prohibitions on retroactive legislation?

Answer 6

1. Contract clause
2. ex post facto clauses
3. Prohibition on bills of attainder
   - –also any retroactive law that passes muster under these categories should still have to contend with due process requirements

Question 7

What does the contract clause do?

Answer 7

Limits the ability of states to enact laws that retroactively impair contract rights (not applicable to federal government or to contracts not yet made). Different rules for private and public contracts.

Question 8

When does a state law impairing a private contract violate the contracts clause?

Answer 8

State legislation that substantially impairs an existing private contract is invalid unless (1) it serves an important and legitimate public interest and (2) is reasonable and narrowly tailored to achieve that interest (e.g., moratorium on mortgage foreclosures in economic crisis)

Question 9

When does a state law impairing a public contract violate the contracts clause?

Answer 9

A similar test but receive heightened scrutiny, with special attention to whether the legislation reduced the state’s contractual burden.

Question 10

What do the ex post facto clauses prohibit?

Answer 10

States and federal government may not retroactively alter criminal offenses or punishments. There are three categories:
(1) makes an act criminal that was innocent when done
(2) prescribes a greater punishment for an act than what was prescribed when done
(3) reduces the evidence required to prove guilt from what was required when the act was done
Relatedly 5A and 14A due process prevent courts from retroactively applying interpretations of criminal laws in unexpected and indefensible ways

Question 11

What are bills of attainder?

Answer 11

Legislative acts inflicting punishments on individuals without a judicial trial. Not permissible by feds or states

Question 12

What is the basic requirement of procedural due process?

Answer 12

An individual has a right to a fair process when the government intentionally* acts to deprive them of life, liberty, or property.
*not negligently!

Question 13

When is the state depriving someone of a liberty interest?

Answer 13

Occurs if someone is denied physical freedom (institutionalization, imprisonment), or is denied a Constitutional or statutory right (right to contract, right to gainful employment, parental rights, etc).

Question 14

When is the state depriving someone of a property interest?

Answer 14

Personal belongings and realty as well as government entitlements to which the individual has a legitimate claim/reasonable expectation of continued receipt (welfare benefits, public education, government licenses, tenured or term public employment)

Question 15

How do courts determine what process is required in a given situation?

Answer 15

Notice (reasonably calculated to inform) and opportunity to be heard prior to the deprivation are usually required (preference for pre-deprivation proceedings unless impracticable). Fair procedures and a neutral decision maker (no actual or serious risk of bias) are always required.

Three-part Mathews balancing test determines the nature and extent of proceedings:

(1) The importance of the interest to the individual
(2) the value of specific procedural safeguards and risk of erroneous deprivation as a result of certain procedures
(3) the burden on the government (government’s interest in fiscal and administrative efficiency)

Question 16

Can due process rights be waived?

Answer 16

Yes, if voluntary and knowing

Question 17

What process is required for commitment to a mental institution?

Answer 17

Adult: prior notice and prior evidentiary hearing absent emergency
Child: prior screening by neutral fact-finder. parental consent alone insufficient

Question 18

What process is required for termination of welfare benefits?

Answer 18

Prior notice and prior evidentiary hearing

Question 19

What process is required for termination of disability benefits?

Answer 19

Prior notice and opportunity to respond accompanied by subsequent evidentiary hearing

Question 20

What process is required for termination of non at-will public employment?

Answer 20

Prior notice, opportunity to respond, subsequent evidentiary hearing

Question 21

What process is required for suspension of driver’s license?

Answer 21

prior evidentiary hearing (except for breathalyzer test suspension statutes)

Question 22

What process is required for disciplinary suspension/dismissal from public education?

Answer 22

Prior notice and opportunity to respond

Question 23

What process is required for termination of parental rights?

Answer 23

Notice, hearing, prior evidentiary hearing showing proof of neglect or misconduct by clear and convincing evidence

Question 24

What process is required for civil forfeitures?

Answer 24

Real property: prior notice and evidentiary hearing

Personal property: subsequent notice and hearing

Question 25

What process is required for detention of a citizen as an enemy combatant?

Answer 25

subsequent notice and meaningful opportunity to constellation the factual basis for detention before a neutral decisionmaker

Question 26

What does the 5A takings clause prohibit?

Answer 26

The taking of private property for public use without just compensation (incorporated against states via 14A). This can include both physical appropriations and action that damages or impairs a property’s use

Question 27

What property does the takings clause apply to?

Answer 27

Real and personal property; some intangible property like interest on an attorney trust account or trade secrets. Other intangible property may not be protected under takings but would still require procedural due process (welfare benefits)

Question 28

What constitutes a taking?

Answer 28

Physical:
– confiscation/appropriatoin
– occupation/physical invasion
Regulatory/use restriction

Question 29

When is a temporary occupation a taking?

Answer 29

May be a taking depending on degree of invasion, duration, government intent, foreseeability with respect to result, character of property and level of interference with use.
Exception: in a public/wartime emergency, even a complete and permanent deprivation is not going to be a taking

Question 30

When are traditional conditions on property development a taking?

Answer 30

E.g., streets, utility easements

Not a taking if benefits roughly proportional to burdens

Question 31

What are the two tests applied to determining whether a regulatory taking has occurred?

Answer 31

(1) Bright line: there is a taking if the regulation denies the landowner all economic use of their land (prohibition on putting any building on it). If the denial is temporary, the court will look at factors like length of delay, actual effect, good faith, etc…
(2) Balancing test: usually diminished property value is not a taking but courts will consider (1) the economic impact of the regulation/diminution in value; (2) the character of the government action (in relation to what counts as a traditionally government regulation); (3) where there is a substantial interference with an investment-backed expectation of the owner

Question 32

What constitutes a public use?

Answer 32

This is liberally construed. Anything rationally related to a legitimate public purpose. Can extend to takings by private enterprises redounding to the public advantage (railroads, public utilities)

Question 33

What is an exaction?

Answer 33

Municipal conditions on building/development permits (landowner must convey all or part of title to govt/grant a public easement).

Question 34

When are exactions a taking?

Answer 34

They are a taking unless (1) government can show an essential nexus between the condition and proposed development (legitimate government interest) and (2) adverse impact is roughly proportional to loss caused to property owner

Question 35

What is the remedy for a taking without condemnation proceedings?

Answer 35

An action for inverse condemnation – if successful government will have to pay just compensation or terminate the regulation and pay damages

Question 36

What is just compensation?

Answer 36

Fair market value at the time of the taking (no compensation need be paid to the owner of worthless property)

Question 37

What are the three general levels of scrutiny?

Answer 37

Rational basis
Intemediate scrutiny
Strict scrutiny

Question 38

What is the rational basis formula?

Answer 38

State action must be rationally or reasonably related to a rational or legitimate interest. The burden of proof is on the challenger and the state action is presumed valid.

A/k/a law valid unless arbitrary and irrational

Question 39

What is the intermediate scrutiny formula?

Answer 39

The state action must be substantially related to an important or significant state interest. Substantially related requires narrow tailoring but not the least restrictive means. The burden of proof is on the state.

Question 40

What is the strict scrutiny formula?

Answer 40

The state action must be the least restrictive means of achieving a compelling state interest. The burden of proof is on the state and the state action is presumed invalid.
A/K/A “necessary to achieve a compelling govt purpose” or “narrowly tailored to achieve an overriding government purpose”

Question 41

What does strict scrutiny apply to?

Answer 41

Regulations affecting fundamental rights or evolving a suspect classification

Question 42

What does intermediate scrutiny apply to?

Answer 42

Regulations involving quasi-suspect classifications

Question 43

How do you determine whether a suspect or quasi-suspect classification discrimination is involved?

Answer 43

(1) facially discriminatory

(2) not facially discriminatory but has disparate impact and discriminatory intent

Question 44

Which classifications are suspect?

Answer 44

Race, national origin, alienage

Question 45

Which classifications are quasi-suspect?

Answer 45

Gender, non-marital child status

Question 46

What have courts generally ruled with respect to the government’s ability to diversify or desegregate schools?

Answer 46

Government has a compelling interest in remedying effects of past segregation. Bussing was found to be narrowly tailored to respond to this but bussing for a broader diversity purpose was not narrowly tailored (dodged whether diversity was a compelling interest)

Question 47

What have courts generally ruled with respect to the government’s ability to diversify higher education?

Answer 47

There is a compelling government interest in diversity in higher education which is permissibly accomplished by means of using race as a soft factor in a multi-factor admissions system. Race quotas/hard factors not permissible

Question 48

When may a state or local government require US citizenship as a condition of public participation?

Answer 48

Generally cannot for benefits, property ownership, bar admission, or public employment but can where the activity is integral to self-governance (voting, holding elective public office, being a police officer, being a public school teacher – not for being a notary public)

Question 49

What test is applied to determine whether a gender discriminatory law is Constitutional?

Answer 49

Intermediate scrutiny and the important interest involve must have an exceedingly persuasive justification beyond role stereotype

Question 50

When is a classification subject to rational basis never rational?

Answer 50

When based on animus

Question 51

What is the basic substantive due process analysis?

Answer 51

(1) is it a fundamental right?
(2) if yes – strict scrutiny
(3) if no – rational basis review

Question 52

What rights are fundamental?

Answer 52

Enumerated rights in the Constitution (freedom of speech, e.g.) and unenumerated rights which are rooted in history and tradition, implicit in the concept of ordered liberty, or identified as fundamental based on reasoned judgment and new insight

They are: privacy (marriage, procreation, contraception, child custody care and upbringing, living with extended family, abortion); voting, and interstate travel

Question 53

What analysis is applied to abortion restrictions?

Answer 53

The right to privacy includes a right to an abortion without interference from the state. The states two possible compelling interests are (1) the health of the mother; and (2) protecting the life of the fetus. The court has thus split the analysis into pre- and post-viability rules.

Pre-viability: a state may adopt a regulation protecting the mother’s health and life of the fetus only if the regulation does not place an undue burden or a substantial obstacle to the right to obtain an abortion

Post-viability: a state’s interest in the life of the fetus may override the mother’s right, but cannot prohibit a mother from obtaining an abortion for health and safety reasons

Question 54

Does the government have an obligation to finance abortions?

Answer 54

No

Question 55

What constitutes an undue burden on the pre-viability right to an abortion?

Answer 55

Spousal notification requirements

Requirement that abortion providers have admitting privileges at local hospitals

Question 56

What has been found not to constitute an undue burden on the pre-viability right to an abortion?

Answer 56

Requiring the doctor give information relevant to informed consent
24 hour waiting periods
parental consent or notice for minors so long as there is a judicial bypass option
requirement that the abortion be performed by a licensed physician
Barring well-defined partial birth abortion procedures

Question 57

Is there a fundamental right to intimate sexual conduct?

Answer 57

While the court has not specified a standard of review for laws regarding this, it has made clear that there is no legitimate state interest in criminalizing non-commercial consensual adult sexual intimacy and such laws could not even survive rational basis review

Question 58

Is there a right against the accumulation and distribution of information about citizens by the government?

Answer 58

no

Question 59

What restrictions on the right to vote are not subject to strict scrutiny?

Answer 59

Age, residency (if time periods are reasonable), citizenship

Question 60

May governments require voters to show government ID to vote?

Answer 60

yes

Question 61

Can states condition voting on property ownership?

Answer 61

No, except for some special purpose elections

Question 62

Can the government institute a poll tax?

Answer 62

no, unconstitutional

Question 63

Can states require early registration for primaries?

Answer 63

yes

Question 64

What is the one person one vote principle?

Answer 64

The right to vote cannot be diluted at any level of government when that government decides to select representatives to a governing body by district`

Question 65

What is the requirement for national congressional districts?

Answer 65

States must use almost exact mathematical equality in creating congressional districts w/in the state
Congress gets deference when apportioning representatives among the states in good faith and is not subject to precise math formula

Question 66

What is the requirement for districting at state/local level?

Answer 66

the districts in state and local elections must not include variances in populations that are unjustifiably large but need not be within a few percentage points of one another. Deviations from mathematical equality must be reasonable and tailored to promote a legitimate state interest (like preserving political subdivisions)

Question 67

How must states count the population for purpose of districting?

Answer 67

need not count only eligible voters/fine to count total population

Question 68

Where is the one person one vote requirement inapplicable?

Answer 68

Appointed officials and officials elected at large
Elections of officials dealing with matters of special interest in the community rather than exercising normal govt authority (eg water storage districts)

Question 69

What are the constitutional restrictions on candidate qualification requirements?

Answer 69

Cannot charge a fee precluding indigents from running for office
ballot access regs must be reasonable nondiscriminatory means of promoting impt state interests (like a show of reasonable support to get on ballot)

Question 70

What is included in the right to interstate travel?

Answer 70

fundamental right to migrate from state to state and be treated equally after moving to a new state. problem when state imposes minimum durational residency requirements for receiving benefits etc…
Invalid – 1 yr residencies to receive full welfare benefits, state subsidized medical care or to vote
Valid - 30 day residency to vote, 1 yr residency to get divorced
Does not include right to international travel but this is protected from federal interference under 5A due process subject to rational basis review