CONSTITUTIONAL LAW Flashcards
GOVERNMENT ACTION (“STATE ACTION”) REQUIREMENT
THE CONSTITUTION APPLIES ONLY TO GOVERNMENT ACTION (FEDERAL, STATE, OR LOCAL)
>Private conduct does not have to comply with the constitution, subject to the below exceptions
EXCEPTIONS - Constitution will apply to private conduct where:
(1) EXCLUSIVE PUBLIC FUNCTION - A private entity performs a task traditionally performed by government (narrow exception)
—> Arises only if a private entity exclusively operates a government function (e.g., private prisons, elections)
(2) SIGNIFICANT STATE INVOLVEMENT (ENTANGLEMENT) - government affirmatively authorizes or facilitates private conduct
—> State must affirmatively approve or validate private conduct - permitting it alone is insufficient
—> Examples of state action - court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate
—> Examples of no state action - government grants liquor license to racially discriminatory private club; private school receiving government funds fires a teacher over speech
** Note - Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through the 13th amendment (enabling Congress to pass legislation enforcing the 13th amendment ban on slavery)
BILL OF RIGHTS: APPLICATION TO FEDERAL & STATE GOVERNMENTS
THE BILL OF RIGHTS (BOR) ONLY APPLIES DIRECTLY TO THE FEDERAL GOVERNMENT
> Certain provisions of the BoR apply to state and local governments under the incorporation doctrine
> The Supreme Court has selectively held specific BoR provisions applicable to the states through incorporation into the 14th amendment Due Process (DP) clause
—> Most BoR provisions are now incorporated
EXCEPTIONS - certain provisions of the BoR are not incorporated by the 14th amendment to states, including
> 3rd amendment right not to have soldiers quartered in homes
> 5th amendment right to grand jury indictment in criminal cases
> 7th amendment right to a jury trial in civil cases
> 8th amendment right against excessive fines
REVERSE INCORPORATION
> The 14th amendment Equal Protection Clasue does not apply directly to the federal government, but has been held to apply to the federal government through the 5th amendment due process clause
LEVELS OF SCRUTINY
COURTS USE THREE TESTS TO ANALYZE THE CONSTITUTIONALITY OF GOVERNMENT ACTS UNDER SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
> *NOTE -these should be memorized verbatim
RATIONAL BASIS -A law will be held if it is rationally related to a legitimate government purpose
> Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law
> A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary
> Burden of proof - challenger bears the burden of proof
INTERMEDIATE SCRUTINY - A law will be upheld if it is substantially related to an important government purpose
> Givenement goal must be important; courts look at the actual reason the law was enacted
> Burden of proof - government bears the burden of proof
STRICT SCRUTINY - A law will be upheld if it is necessary to achieve a compelling government interest
> government must show there are no less restrictive or burdensome means of achieving its goals
> The court looks at the actual reason the law was enacted
> Burden of proof - government bears the burden of proof
PROCEDURAL DUE PROCESS
A FAIR PROCESS (E.G., NOTICE, HEARINGS) IS REQUIRED FOR A GOVERNMENT AGENCY TO TAKE OR DEPRIVE A PERSON’S LIFE, LIBERTY, OR PROPERTY
ANALYSIS:
(1) HAS THERE BEEN A DEPRIVATION OF LIFE, LIBERTY, OR PROPERTY?
—> LIBERTY DEPRIVATION - loss of significant freedom of action or freedom provided by constitution or statute (e.g., institutionalization, government restriction of fundamental rights)
—> PROPERTY DEPRIVATION - A legitimate claim or entitlement to a benefit under law, which goes unfulfilled
> E.g., public school attendance, welfare
(2) WHAT PROCEDURES ARE REQUIRED? - determined by balancing:
(a) Importance of the individual interest involved, and
(b) Value of procedural safeguards to that interest, against
(c) Government interest (i.e., fiscal or administrative efficiency
Examples - Procedural due process requirements arise with:
> Terminating welfare/socail security benefits; separating child from parents; punitive damages awards ; enemy combatant status for citizens obtained in foreign countries
SUBSTANTIVE DUE PROCESS
INVOLVES THE DETERMINATION OF WHETHER THE GOVERNMENT HAS ADEQUATE REASONS FOR DEPRIVING LIFE, LIBERTY, OR PROPERTY
> Encompasses both fundamental and non-fundamental rights
APPLICABLE LEVELS OF SCRUTINY
> Non-fundamental rights - apply rational basis test
> Fundamental rights - apply strict scrutiny
SUBSTANTIVE DUE PROCESS VS EQUAL PROTECTION (EP)
> SIMILARITIES -Under both substantive DP and EP, a court reviews the substance of the law, not procedure
> DIFFERENCES:
—> Substantive DP - usually involves laws affecting rights of all persons to engage in some conduct or activity
—> EP - usually involves treating certain people or classes of people differently than others, usually based on some trait
ECONOMIC RIGHTS & THE CONTRACT CLAUSE
ECONOMIC RIGHTS GENERALLY - rational basis test
> The Constitution provides only minimal protection for economic liberties (laws affecting or amounting to taking of one’s economic rights)
> Rational basis applies unless the infringement falls under the contracts clause or takings clause
—> Government almost always wins under the rational basis test
CONTRACTS CLAUSE - states cannot impair contractual duties
> Applies only to state/local interference with existing contractual obligations, including government obligations
> LEVELS OF SCRUTINY -different for private v. public contracts:
—> PRIVATE CONTRACTS -intermediate-type scrutiny: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the law:
(1) Serrves an important, legitimate, public interest; and
(2) Is reasonably and narrowly tailored in promoting that interest
—> GOVERNMENT CONTRACTS - strict scrutiny
> Local laws substantially impairing or interfering with existing government contract must be reasonable and necessary to serve an important public purpose
EX POST FACTO CLAUSE & BILLS OF ATTAINDER
THE Constitution prohibits state and federal govenemnts from passing retroactive laws, which generally involve either ex post facto laws or bills of attainder
EX POST FACTO CLAUSE - prohibits post facto laws
> A law is an ex post facto law if either:
(a) Criminally punishes conduct that was lawful when done, or
(b) Increases punishment for a crime after it has been committed, or
(c) Reduces the burden required to convict a person for a crime after it has been committed
> Does not apply to civil liability, where retroactive legislation must meet only a rational basis
> *Note - Ex post facto clause is contained in the contract clause
BILL OF ATTAINDER - legislative acts that punish specific individuals without judicial trial
> E.g., an order to imprison a person without judicial process
> Bills of attainder are prohibited under the constitution
TAKINGS CLAUSE
THE 5TH AMENDMENT TAKINGS CLAUSE PROHIBITS THE GOVERNMENT FROM TAKING PRIVATE PROPERTY FOR PUBLIC USE WITHOUT PROVIDING JUST COMPENSATION TO THE OWNER AND/OR OCCUPANT
3-PART ANALYSIS (TO DETERMINE IF TAKING IS CONSTITUTIONAL):
(1) HAS THERE BEEN A TAKING?
—> Possessory taking - government confiscation or physical occupation of property
—> Regulatory taking - government regulation that leaves no economically viable use of the property; factors in determining if a regulatory taking has occurred:
(a) Social good promoted by the regulation
(b) Loss to owner
(c) Owner’s expectations for his property
(2) IS THE TAKING FOR PUBLIC USE?
—> A taking is for public use if govenement acts with reasonable belief that the taking will benefit the public
> Very low standard
(3) IS JUST COMPENSATION PAID?
—> Measured in terms of loss to the owner
FUNDAMENTAL RIGHTS & THE RIGHT TO PRIVACY
FUNDAMENTAL RIGHTS ARE TREATED UNDER THE 5TH AMENDMENT DUE SUBSTANTIVE PROCESS AND THE 14TH AMENDMETN EQUAL PROTECTION
> Substantive DP - applies if a right is denied to all
> EP applies if a right is denied to some but not others
OVERVIEW OF FUNDAMENTAL RIGHTS
> RIGHT TO PRIVACY - An inferred right that encompasses several rights with varying levels of scrutiny:
—> STRICT SCRUTINY REVIEW:
(1) Right to marry
(2) Right to procreate
(3) Rights concerning family and children
(a) Rights to the custody of one’s children
(b) Rights to keep family together
(c) Right to control children’s upbringing
—> SEPARATE OR UNKNOWN LEVELS OF REVIEW:
(1) Right to abortion
(2) Right to engage in private, consensual homosexual activity (unknown)
(3) Right to refuse medical treatment (unknown)
> RIGHT TO VOTE - usually implicated under EP
> RIGHT TO TRAVEL - usually implicated under the EP clause
EQUAL PROTECTION: APPLICATION & APPROACH
INCORPORATION - PROVISIONS RELATING TO EP:
> 14TH Amendment EP clause applies directly to state/local governments
> EP applies to the federal government by incorporation through the 5th Amendment DP clause
—> i.e., the EP clause does not apply directly to the federal government
> The same analysis and levels of scrutiny apply for EP analysis whether it applies through the 5th or 14th amendment
APPROACH TO EP:
(1) IS THERE A DISCRIMNATORY CLASSIFICATION?
—> To receive heightened scrutiny, a discriminatory classification must be proved
(2) WHAT LEVEL OF SCRUTINY APPLIES GIVEN THE CLASSIFICATION?
—> Suspect classifications - strict scrutiny
—> Quasi-suspect classifications - intermediate scrutiny
—> All other alleged classifications - rational basis
(3) DOES THE CLASSIFICATION SATISFY THE APPROPRIATE LEVEL OF SCRUTINY?
PROVING DISCRIMINATORY CLASSIFICATIONS
CLASSIFICATIONS MUST BE DISCRIMINATORY TO BE REVIEWED UNDER HEIGHTENED SCRUTINY (INTERMEDIATE OR STRICT SCRUTINY)
THREE WAYS TO PROVE A DISCRIMINATORY CLASSIFICATION:
(1) LAW DISCRIMINATED ON ITS FACE - by its terms, the law treats classes of people differently
(2) FACIALLY NEUTRAL LAW APPLIED IN A DISCRIMINATORY MANNER
—> The law does not create a classification by its terms but does so as applied (e.g., only men are arrested under an otherwise valid law)
—> Proving a classification - P must demonstrate:
(a) Disparate impact - the law has a discriminatory impact (i.e., it creates a classification); and
(b) Government officials applying the law had some discriminatory purpose
(3) DISCRIMINATORY MOTIVE/PURPOSE BEHIND LAW
—> Difficult to prove
—> Demonstrating discriminatory impact alone is not enough; there must be evidence of govenement’s discriminatory motive
EQUAL PROTECTION STANDARDS OF REVIEW
RATIONAL BASIS
(1) Alienage, but only if classification:
(a) Relates to the democratic process, * or
(b) Is a congressional action concerning immigration*
(2) All other classifications
INTERMEDIATE SCRUTINY (QUASI-SUSPECT CLASSIFICATION)
(1) Gender
(2) Non-marital children
STRICT SCRUTINY (SUSPECT CLASSIFICATION)
(1) Race
(2) National origin
(3) Alienage
(4) Right to travel
(5) Right to vote
CLASSIFICATIONS BASED ON RACE OR NATIONAL ORIGIN
CLASSIFICATIONS BASED ON RACE OR NATIONAL ORIGIN ARE SUSPECT CLASSIFICATIONS REVIEWED UNDER STRICT SCRUTINY
CLASSIFICATIONS BENEFITTING MINORITIES (AFFIRMATIVE ACTION
> ADMISSIONS - educational institutions may use race or national origin as a factor in admissions decisions, but not as a defining criterion
—> E.g., an admissions process that awards “points” to some applicants based on race is unconstitutional
PUBLIC SCHOOL INTEGRATION - public school systems may not assign students to schools on the basis of race to achieve integration
—> Generally, racial balancing is not a compelling state interest
ALIENAGE CLASSIFICATIONS
> Alienage = citizenship status
Strict scrutiny usually applies, subject to certain exceptions
EXCEPTIONS - rational basis applies if the classification is
(1) RELATED TO SLEF GOVERNMENT AND THE DEMOCRATIC PROCESS
—> Often arises where job applicants are denied government employment based on their citizenship status
—> Areas where alienage classifications have been upheld under rational basis review:
> Voting
> Serving on a jury
> Working as a police officer
> Working as a teacher
> Working as a probation officer
—> Working as a notary public is not integral to self-government and the democratic process
(2) A CONGRESSIONAL LAW REGULATING IMMIGRATION
—> Congress has plenary powers to regulate immigration
—> * Note - undocumented aliens are not considered a suspect classification
GENDER & NON-MARITAL CHILDREN CLASSIFICATIONS
GENDER - intermediate scrutiny + “exceedingly persuasive justification”
> Gender classifications receive intermediate scrutiny (i.e., they must substantially relate to an important government purpose)
—> Additionally, courts often require an “ exceedingly persuasive justification” for the classification
> Classifications discriminating against men are usually invalid
—> Some have passed intermediate scrutiny
> E.g., statutory rape laws applying only to men, all-male military draft
> Classification benefitting women:
—> Classifications based on stereotypes are impermissible
—> Classifications designed to remedy past discrimination will likely be upheld
NON-MARTIAL CHILDREN (legitimacy classifications
> Usually arises with intestacy statutes
> Intermediate scrutiny - applies if a law grants benefits to all marital children but denies to some non-marital children.
—> Laws that deny benefits to all non-marital children while granting benefits to all martial children are unconstitutional on their face.
