Constitutional Law: Individual Rights

Question 1

Due Process Clause

Answer 1

The Due Process Clauses of the Fifth (federal) and Fourteenth (state) Amendments provide that the government cannot deprive persons of life, liberty, or property without due process of law.

Question 2

Incorporation

Answer 2

Most of the Bill of Rights is applied to the states through the Due Process Clause of the Fourteenth Amendment.

*NOT incorporated: 5th Amendment grand jury right, 7th Amendment civil jury, and 8th Amendment excessive bail.

Question 3

Substantive Due Process

Answer 3

Substantive due process, implicit in the Due Process Clause, protects rights implicit in the concept of ordered liberty.

Question 4

Fundamental Rights

Answer 4

Substantive due process protects fundamental rights, which include:

• Bodily Integrity: the right to refuse medical treatment; the right to receive medical treatment if in jail.
• Family: marriage (hetero), divorce, the right of blood relatives to live together, right to raise and educate kids.
• Procreation: right to avoid sterilization, right to choose contraception, abortion, private sexual matters;
• Travel: ex: no one-year residency requirement for state welfare (but residency requirements are okay for divorce and in-state tuition)
• Voting

REMEMBER BFP’s & TV’s

Question 5

Fundamental Rights: Test

Answer 5

Government action that infringes on a fundamental right is presumed unconstitutional, and government must prove that the law is necessary and the least restrictive means to serve a compelling government interest.

Question 6

Ordinary Interests: Test

Answer 6

All interests that are not fundamental are ordinary. Government action that infringes on an ordinary interest is presumed constitutional, and the challenger must prove that the law is not rationally related to a legitimate government interest.

Question 7

Abortion

Answer 7

Strict Scrutiny applies to an infringement on a woman’s right to privacy in making a decision to terminate her pregnancy.

Prior to fetal viability, the state cannot impose an undue burden on, or a substantial obstacle to, a woman’s right to an abortion.

Question 8

Procedural Due Process

Answer 8

Procedural due process under the Fourteenth Amendment requires notice and an opportunity to be heard before being deprived of a liberty or property interest.

*applies only when gov’t deprives an INDIVIDUAL of of a liberty or property interest. If gov’t were to end ALL welfare, no procedure required.

Question 9

Procedural Due Process: Liberty Interests

Answer 9

The following are liberty interests that implicate procedural due process:

• commutation of sentence/initial parole determination
• revocation of parole/probation
• reduction/removal of prison good time credits
• confinements of juveniles or mentally ill
• corporal punishment in schools
• taking away custody of children
• right to die for competent adults

Question 10

Procedural Due Process: Property Interests

Answer 10

The following are property interests that implicate procedural due process:

• revocation of licenses (ex: driver’s license)
• termination of welfare benefits
• attendance at public school
• termination of contractual or tenured gov’t employment
• wage garnishment or property attachment

Question 11

Procedural Due Process Requirements

Answer 11

Before deprivation of liberty or property interest, gov’t must provide notice and a meaningful opportunity for a fair hearing.

• extensive hearing if risk is greater
• hearing can occur post-deprivation for emergencies (e.g., seizing tainted food, losing disability benefits).

Question 12

Bill of Attainder

Answer 12

The constitutional prohibition on bills of attainder prohibits the government from punishing an individual by name.

Question 13

Ex Post Facto Laws

Answer 13

State and federal legislatures may not enact retroactive criminal PUNITIVE statutes.

*does not apply to regulatory or status offenses (i.e., sex offender registries).

Question 14

Contracts Clause

Answer 14

The Contracts Clause limits the states’ (NOT federal) ability to pass laws that substantially impair the rights of existing contracts unless the law is rationally related to a legitimate government interest.

Question 15

Takings Clause

Answer 15

The Takings Clause provides that the government CAN take property for public use so long as the government provides just compensation.

• taking–physical taking or regulatory taking, where regulation is so extensive that property has virtually no value
• public use–bears a reasonable relation to a legitimate government interest.
• just compensation–fair price.

Question 16

Equal Protection Clause

Answer 16

The Equal Protection Clause of the Fourteenth Amendment limits the ability of the government to discriminate.

*Look for fact patterns where government classifies groups of people.

Question 17

EPC: Purpose & Effect

Answer 17

The EPC prohibits purposeful discrimination. Plaintiff must demonstrate discriminatory purpose and effect.

Question 18

De Jure Discrimination/Facially Discriminatory

Answer 18

If a law is discriminatory on its face, discriminatory intent is presumed.

Question 19

De Facto Discrimination/Facially Neutral

Answer 19

De facto discrimination, or discrimination in effect, violates the EPC when the plaintiff proves that gov’t officials applying the statute are using an improper classification. This can be shown through extreme statistical disparities where numbers are so extreme that intent to discriminate is clear.

*Yick Wo v. Hopkins–key is not only extreme numbers, but that the exact same board was producing such discriminatory results. Intent was presumed.

Question 20

EPC Analysis: Strict Scrutiny

Answer 20

Under strict scrutiny, the government bears the burden of demonstrating that the law is the least restrictive means of achieving a compelling government interest AND is necessary to accomplishing that end.

*applies to suspect classifications (race, national origin–see card on national origin)

Question 21

EPC Analysis: Intermediate Scrutiny

Answer 21

Under intermediate scrutiny, the government action must be substantially related to an important government interest.

• applies to gender, legitimacy of offspring
• unlike rational basis, court will not speculate as to the gov’t interest. Gov’t must affirmatively set for its purpose.

Question 22

EPC Analysis: Rational Basis

Answer 22

The rational basis places the burden on the citizen challenging the statute to prove that the law is not rationally related to a legitimate governmental interest.

*applies to age, wealth, sex, or retardation.

Question 23

EPC Analysis: National Origin

Answer 23

States cannot discriminate against LEGAL aliens. States may limit voting and employment in certain policy jobs.

Alienage is a suspect classification, but classification by feds = rational basis; classification by states = strict scrutiny.

Plyler v. Doe–statute denying education to ILLEGAL alien children was unconstitutional under a heightened standard of review because statute imposed a lifetime hardship on a discrete class of children not accountable for their status.

Question 24

Privileges & Immunities Clause (Article IV)

Answer 24

The Privileges & Immunities Clause of Article IV prevents a state from imposing unreasonable burdens on citizens of other states in matters of fundamental importance.

If a law discriminates against out-of-staters in fundamental matters, state must show that (1) it has substantial reasons for the discrimination against nonresidents; and (2) the discrimination bears a close relation to those reasons.

• ex: states can’t keep out of stater from owning property and making contracts, being member of bar.
• applies ONLY to citizens, not corporations or illegal aliens.
• fundamental matters = employment, commercial activities (incl. fishing), obtaining an abortion, or paying taxes.
• fundamental does NOT include recreational hunting, running for state elected office.

Question 25

Privileges & Immunities Clause (Fourteenth Amendment)

Answer 25

The Privileges & Immunities Clause of the Fourteenth Amendment prohibits a state from limiting the federal rights of its own citizens.

*ex: states cannot limit citizens’ rights to interstate travel, petitioning Congress, voting for national office, entering public land.

Question 26

Religion: Free Exercise Clause

Answer 26

The Free Exercise Clause of the First Amendment, applicable to the states through the DPC, limits the government’s ability to inhibit religious practice.

Question 27

Free Exercise: Test

Answer 27

Where a state law singles out a religion (i.e., no “ritual” animal sacrifice), strict scrutiny applies.

Question 28

Free Exercise: Generally Applicable Law

Answer 28

A generally applicable law (one that applies to EVERYONE) does not violate the free exercise clause even if it inhibits religious practice.

Question 29

Religion: Establishment Clause

Answer 29

The First Amendment Establishment Clause, applicable to the states through the DPC, forbids governmental action setting up or preferring a religion.

Question 30

Establishment Clause: Lemon Test

Answer 30

Under the three-part Lemon (P.E.E.) test, a law is proper if:

(1) it has a secular legislative PURPOSE. Ex. federal money to religious institutions is allowable if purpose is to promote sex ed/pregnancy services.
(2) the primary EFFECT neither advances nor inhibits religion. If the aid to religion is secondary or incidental, this is okay; and
(3) it does not cause EXCESSIVE ENTANGLEMENT with religion. Consider the likelihood that law will cause excessive political activity by religious institutions OR substantial supervision of religious institutions by government.

Question 31

Freedom of Speech

Answer 31

The First Amendment protects not only spoken or written expression but also conduct intended to be communicative.

Question 32

Unprotected Speech: FIDO

Answer 32

Statutes regulating unprotected speech must be narrowly drawn to avoid incidental prohibition of protected speech.

Unprotected speech: 
Fighting Words
Incitement to Violence
Defamation
Obscentiy

Question 33

Unprotected Speech: Fighting Words & Incitement to Violence

Answer 33

Fighting words and incitement to violence speech are words that, in context, are likely to cause immediate violence. Both are unprotected by the First Amendment and may be prohibited and punished.

Question 34

Unprotected Speech: Defamation

Answer 34

Defamatory speech, untrue statements that injure the reputation of another, and statements that invade others’ privacy, are unprotected by the First Amendment.

*BUT there is limited protection for defamation of government or its officials.

Question 35

Unprotected Speech: Obscenity

Answer 35

Under Miller, speech is obscene and unprotected by the First Amendment if it is:

(1) Prurient: whether, under contemporary standards, an average person would find that it appeals to prurient interests;
(2) Offensive: whether work depicts or describes sexual conduct in a patently offensive way;
(3) Valueless: whether work lacks serous literary, artistic, political, or scientific value.

*remember POV.

Question 36

Low-Level Protected Speech

Answer 36

Indecency and Commercial Speech are afforded low-level protection by the First Amendment.

Question 37

Low-Level Speech: Indecency

Answer 37

States may regulate indecent speech provided that there is a sufficiently important or substantial state interest in the regulation AND the viewing public has reasonable access to the product through another avenue.

• gov’t has a substantial interest in avoiding the secondary effects of crime resulting from indecent speech.
• city of renton–zoning ordinance that prohibited adult movie theaters was okay so long as there was ample land area available for use of theaters.

Question 38

Low-Level Speech: Commercial Speech

Answer 38

Commercial speech is speech that does no more than propose a commercial transaction.

• the gov’t cannot impose blanket suppression on commercial speech in a particular area (e.g., abortion)
• gov’t can regulate untruthful, misleading, or deceptive commercial speech.
• gov’t can regulate commercial speech that relates to an illegal purpose or activity.

Question 39

Commercial Speech: Central Hudson Test

Answer 39

Government regulation of lawful and non-misleading commercial speech will be upheld where:

(1) state has a substantial government interest
(2) regulation directly advances that interest
(3) there is a reasonable fit between the gov’t interest and the means chosen to regulate the speech.

Question 40

Fully-Protected Speech: Question #1

Answer 40

Does the law regulate speech based on content?

• content-neutral or
• content-based

If content-based, is it:

• viewpoint neutral or
• viewpoint based

Question 41

Fully-Protected Speech: Question #2

Answer 41

Does the law regulate speech in a particular place?

• no place mentioned at all or applies to every place
• public forum
• limited public forum
• non-public forum

Question 42

Regulation of Speech By Content

Answer 42

Content-based regulation requires examination of the expression’s content to determine if it violates the law/regulation.

Content-neutral regulation applies evenly to all expression without any examination of content.

Question 43

Regulation of Content-Based Speech By Viewpoint

Answer 43

A regulation is viewpoint-neutral if it regulates speech equally on both/all sides of the issue/content. Ex: no abortion discussion in halls.

A regulation is viewpoint-based if it regulates discussion on only one-side or unequally. Ex: no pro-life discussion in halls.

Question 44

Public Forum

Answer 44

A public forum is a place traditionally used for the public exchange and expression of ideas (e.g., public parks, public streets, and sidewalks).

• Content-based regulation of speech in a public forum must pass strict scrutiny.
• Content-neutral regulation of speech in a public forum is permissible if it is a time, place, manner restriction.

Question 45

Time, Place, Manner Restriction

Answer 45

Government may impose content-neutral time, place, manner restrictions on speech in a public forum. Restriction must:

• be narrowly tailored;
• serve an important government interest; and
• leave alternative means to communicate.

Question 46

Limited Public Forum

Answer 46

A limited public forum is government property or government benefits which are made available for expressive activity but for a limited purpose or for limited groups (e.g., school auditorium reserved for student groups, student bulletin board)

• Content-neutral regulation of speech in a public forum must be reasonable considering the purpose of the property. Same applies for content-based, viewpoint-neutral regulations.
• If content-based, viewpoint-based, regulation must pass strict scrutiny.

Question 47

Non-Public Forum

Answer 47

A non-public forum is government property which is generally open to the public, but which is not traditionally used for the public expression of ideas (e.g., public schools, jails, courthouses, military bases, airports).

Both content-based and content-neutral regulations of speech in a non-public forum must be reasonable considering the purpose of the property.

Question 48

Freedom of Association

Answer 48

The First Amendment right to freedom of association, applicable to the states through the DPC, includes the right to engage in group activity (expressive association) or spend time with persons of one’s own choosing (intimate association).

Infringement on freedom of association is subject to strict scrutiny. Law must be necessary and the least restrictive means of serving a compelling government interest unrelated to the suppression of ideas.

Question 49

Prior Restraint

Answer 49

Absent extraordinary needs, government restrictions in advance of publication cannot be imposed upon speech or other kinds of expression, regardless of the nature of the speech.

To be valid, a prior restraint must have narrowly drawn, reasonable, and definite standards. Too much discretion in government officials will invalidate a prior restraint.

*ex: “no parade without mayor’s approval;” “city will pre-screen movies;” “enjoin printing pentagon papers.”

Question 50

First Amendment Overbreadth

Answer 50

Even permissible regulation of speech must be narrowly tailored to avoid impermissible intrusion into the area of protected freedoms.

• does NOT apply to commercial speech
• can bring overbreadth challenge even if YOUR speech is unprotected.

Question 51

First Amendment Vagueness

Answer 51

Regulations of speech must be clear enough to allow people of common intelligence to understand what is prohibited.

Question 52

Second Amendment Right to Bear Arms

Answer 52

The Second Amendment, applicable to the states through the DPC, creates an individual right to possess a firearm for traditionally lawful purposes.

*right is not absolute, gov’t may prohibit firearm possession by certain persons (felons, mentally ill) and in certain places (schools, gov’t buildings)

Question 53

Eighth Amendment Cruel & Unusual Punishment

Answer 53

The Eighth Amendment Cruel and Unusual Punishment Clause, applicable to the states through the DPC, prohibits excessive or unusual fines or punishment.

*excessive bail does not apply to states.