Constitutional Law - Individual Rights Flashcards
State Action
• Needed for act to be unconstitutional – initial threshold
• Governmental conduct → needed before private discrimination
• Examples: State law or State official acting officially (even if unlawful)
• EXCEPTIONS:
1. Public Function:
• State action exists when private party preforms functions done by government traditionally and exclusively – i.e. Company runs “Company Town”
• Elections
2. Slavery
3. Significant state involvement:
• Symbiotic relationship
• State facilitates or encourages discrimination
Procedural Due Process
• When serious deprivation (intentional or reckless) of life, liberty, or property interest:
NOT FUNDAMENTAL RIGHTS
• What process due: Notice, opportunity to be heard, and neutral decision maker
Liberty: Physical freedom
• Rt. to contract
• Rt. to engage in gainful employment
• Rt. to refuse unwanted medical care – state may require clear and convincing evidence before terminate care
• Rt. of natural parents in care and custody of children – crosses over with fundamental
Property: Real and personal, tangible and intangible – person reasonable expectation of continued receipt
• Rt. to public education
• Rt. to welfare benefits (can be taken but need prehearing)
• Continued public employment (tenure) need term for cause
5th Amendment Due Process Clause applies to?
Federal Government
14th Amendment Due Process Clause applies to?
States (and localities)
**Wrong Answers on MBE:
• Unconstitutional federal statute under 14th Amendment
• If with reference to 14th Amendment Due Process claim, anything that says Plaintiff prevails/doesn’t prevail because they have a privilege and not a right – will be wrong → Reasoning: Ct. does not use the distinction btw right & privilege anymore
Due Process Hearing is held:
Predeprivation (BEFORE) unless government shows highly impracticable.
Post Deprivation Examples:
• Emergency institutionalization
• Suspension of DL after failed breathalyzer
Substantive Due Process deals with which type of right?
Deals with fundamental rights:
• Travel: Rt. to interstate travel – Rt. to enter and leave a state; Rt. to equal treatment once become permanent resident of state
• Vote:
1. Rational Basis – age, residency, citizenship
2. Strict Scrutiny – poll tax, literacy test
• Privacy (CAMPER)
Substantive Due Process -
Voting
Fundamental right, but both strict scrutiny and rational basis apply
Apply strict scrutiny:
• Discrimination in voting
• Reappointment – one person one vote (state: substantially equal voting districts – 16% variance okay, Fed: Almost equal – 0.7% variance not okay)
• Switching party affiliation – can’t preclude from vote when switch
• Ballot restrictions – (1) based on special interest (i.e. landowner), (2) taxing at polls
Apply rational basis:
• Reasonable requirements on residency – few months okay
• Right to be candidate: (1) pay fee okay; (2) age restriction okay
Substantive Due Process –
Privacy
CAMPER – Strict Scrutiny:
- Contraceptives – bans on distribution and use invalid
- Abortion – look at undue burden
- Marriage – substantial interference with right to marry (denying marriage due to race)
- Procreation – involuntary sterilization
- Private Education – Rt. to home school
- Family Relations – child birth (midwife); related persons live together (define family); child rearing (custody, care, and upbringing)
Sexual Orientation
States have NO legitimate interest in 2 consenting adults bedroom.
• Not fundamental right
• Same sex relation: Not pass rational basis
Equal Protection
Persons similarly situated treated differently - UNEQUAL APPLICATION OF THE LAW
14th Amendment – state, 5th Amendment – Fed. Gov.
When find issue, use 1 of 3 tests:
- Strict Scrutiny: RAN →Race, Alienage (exceptions), Nationality (Gov. BOP act necessary & for compelling interest)
- Intermediate Scrutiny: Gender & Illegitimacy (Gov. BOP Substantially related to an important state interest)
- Rational Basis: Poverty, age, mental retardation, necessities, economic and sociological means (π BOP Rationally related to legitimate interest)
***NOTE for MBE:
• When 2 groups treated differently & have to choose between equal protection & Due process – EQUAL PROTECTION BETTER CHOICE
Strict Scrutiny
Burden on STATE (gov.) to show:
• Law necessary/narrowly tailored (no less restrictive means) to a compelling state interest
Presumption: Law invalid – gov. normally loses
Applies to: • Race – purposeful discrimination or affirmative action plans (need to remedy past discrimination to be valid and no fixed points) • Alienage – classification by state • National origin • Denial of fundamental rights (CAMPER)
RAN
Race: • Strict scrutiny for: • Purposeful discrimination or • Affirmative action plans (need to remedy past discrimination to be valid and no fixed points) Alienage: • Fed: Rational Basis • State: Strict Scrutiny except: Police, teacher, jury service – government function apply rational basis Nationality (national origin)
Intermediate Scrutiny
Burden is on the STATE (Gov.) to show:
• Law substantially related to an important state interest
Presumption: None
Applies to:
• Gender (important interest requires persuasive justification NOT role sterotypes)
• Illegitimacy (laws based on prejudice are invalid)
• Undocumented alien children by state
Rational Basis
Burden is on the PLAINTIFF (challenger) to show:
• Law rationally related to an legitimate state interest
Presumption: Law valid – Challenger typically loses
Applies to: • Poverty/wealth • Age • Mental retardation • Necessities of life • Economic and sociological welfare measures • Alienage classifications by congress • Aliens in government function (police, teacher, jury service • Marriage – age, proper identification
Abortion
Pre-Viability:
• State may regulate but not prohibit abortions to protect mother’s health or life of fetus
• Test: Undue burden (substantial obstacle) on access to abortion
Forms of Undue Burdens on abortion:
1. Requiring spousal notification or consent
2. Requiring extensive record keeping that is extensive and not secure
NOT Undue Burden:
Require license physician; Informed consent; 24 hour waiting period; required parental consent with judicial bypass; not funding abortions; banning partial birth abortions
Post-Viability:
• State may prohibit abortions unless necessary to protect mother’s life or health
