Constitutional Framework for Protection of Individual Liberties Flashcards
What is the exception to the rule that the Constitution applies to public/state action?
13th Amendment
When can the actions of private individuals be considered state action?
Where the private individual/entity is performing an exclusive public function or where there is significant state involvement
When is a private individual performing an exclusive public function?
When they perform a function traditionally the exclusive prerogative of the state (running a town, conducting an election, running a prison)
When is there significant state involvement in private conduct such as to make it state action?
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
Which rights in the bill of rights have not been incorporated against the states and their political subdivisions?
3A right not have soldiers quartered in the hold
5A right to grand jury indictment
7A right to jury in civil cases
What are the three constitutional prohibitions on retroactive legislation?
- Contract clause
- ex post facto clauses
- Prohibition on bills of attainder
- –also any retroactive law that passes muster under these categories should still have to contend with due process requirements
What does the contract clause do?
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.
When does a state law impairing a private contract violate the contracts clause?
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)
When does a state law impairing a public contract violate the contracts clause?
A similar test but receive heightened scrutiny, with special attention to whether the legislation reduced the state’s contractual burden.
What do the ex post facto clauses prohibit?
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
What are bills of attainder?
Legislative acts inflicting punishments on individuals without a judicial trial. Not permissible by feds or states
What is the basic requirement of procedural due process?
An individual has a right to a fair process when the government intentionally* acts to deprive them of life, liberty, or property.
*not negligently!
When is the state depriving someone of a liberty interest?
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).
When is the state depriving someone of a property interest?
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)
How do courts determine what process is required in a given situation?
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)
Can due process rights be waived?
Yes, if voluntary and knowing
What process is required for commitment to a mental institution?
Adult: prior notice and prior evidentiary hearing absent emergency
Child: prior screening by neutral fact-finder. parental consent alone insufficient
What process is required for termination of welfare benefits?
Prior notice and prior evidentiary hearing
What process is required for termination of disability benefits?
Prior notice and opportunity to respond accompanied by subsequent evidentiary hearing
What process is required for termination of non at-will public employment?
Prior notice, opportunity to respond, subsequent evidentiary hearing
What process is required for suspension of driver’s license?
prior evidentiary hearing (except for breathalyzer test suspension statutes)
What process is required for disciplinary suspension/dismissal from public education?
Prior notice and opportunity to respond
What process is required for termination of parental rights?
Notice, hearing, prior evidentiary hearing showing proof of neglect or misconduct by clear and convincing evidence
What process is required for civil forfeitures?
Real property: prior notice and evidentiary hearing
Personal property: subsequent notice and hearing
