Constitutional Rights

Question 1

Unwed Biological Father

Answer 1

An unwed biological father has a constitutional right to have contact with his child IF he has demonstrated a commitment to the responsibilities of parenthood.

Lehr v. Robertson

Question 2

Procedural Due Process (Right to Notice and Hearing) Analysis

Answer 2

Evaluate in two steps:

1. Is life, liberty, or property being taken?
2. If yes, what process is due?

Question 3

Life

Answer 3

Relates to Procedural Due Process

Life: Taking of life. Therefore the death penalty requires procedural due process.

Question 4

Liberty

Answer 4

Relates to Procedural Due Process

Liberty: Includes physical confinement, probation or parole, physical injury, or any restriction of a legal right (i.e. free speech).

Injury to reputation is not a loss of liberty.

Question 5

Property

Answer 5

Relates to Procedural Due Process. Heavily tested, especially government jobs or benefits.

Rule: A person has a property interest in their government job or government benefit whenever they have a legitimate attachment to continued enjoyment of the job or benefit.

• A “mere expectation” of continued employment or benefit will not suffice.
• Expectation v. Entitlement?: Government will state when a benefit is an entitlement and thus subject to procedural due process.

Question 6

Deprivation of Life, Liberty, or Property

Answer 6

Relates to Procedural Due Process

Deprivation requires intentional taking of life, liberty, or property.

Does not apply when there is an accident (no notice or hearing needed).

Question 7

Test to Use if Life, Liberty, Property is Taken

Answer 7

Relates to Procedural Due Process

Court will apply a balancing test of the following factors:

1. The individual interest at stake (life, liberty, property)
2. The value of having a procedure in protecting that interest, AND
3. The government’s interest in efficiency and cost.

Timing of these hearing can occur before deprivation (staying a termination of welfare benefits) or after IF the hearing is prompt and fair.

Public Employees fired for cause must be given an opportunity tp be heard prior to discharge, unless there is a “significant reason” to fire immediately.

Question 8

Standards of Review for Substantive Due Process

Answer 8

Same as Equal Protection:

Strict Scrutiny

Intermediate Scrutiny

Rational Basis

Question 9

Strict Scrutiny

Answer 9

Applies when there is a suspect classification or a fundamental right.

Standard: The law must be necessary for a compelling government interest.

(Usually involves the idea of least restrictive means.)

Government bears burden of proof.

Question 10

Intermediate Scrutiny

Answer 10

Applies to classifications based on legitimacy and gender. [Intermediate scrutiny applies to both substantive due process and equal protection, but has only been practically used in equal protection.]

Standard

The law must be substantially related to an important government interest.

Question 11

Rational Basis

Answer 11

Standard

The law must be rationally related to a legitimate government interest.

Question 12

Fundamental Right: Substantive Due Process v Equal Protection

Answer 12

Under BOTH theories, apply strict scrutiny.

Substantive Due Process: Law denies fundamental right to everyone.

Equal Protection: Law denies fundamental right to some.

Question 13

Three Examples of Fundamental Rights

Answer 13

1. Travel
2. Voting Ballot Access
3. Privacy

Question 14

Fundamental Right to Travel

Answer 14

Individuals have the fundamental right of interstate travel and settlement.

• States can impose a reasonable residency requirement for political participation and government benefits (usually 30-90 days, cannot exceed one year unless its in-state tuition or divorce matters).
• Tax schemes cannot favor long-term residents over newer residents.

Question 15

Fundamental Right to Voting and Ballot Access

Answer 15

Applies to all citizens 18 and over.

• Poll taxes are unconstitutional
• Short-term residency requirement for voting is acceptable (like 30 days)
• Congress controls residency requirements for presidential elections. States control all others.
• States can impose requirements to be placed on the ballot so long as serious candidates can reasonably apply.

Question 16

Fundamental Right to Privacy (Eight Examples)

Answer 16

1. Marriage: Individuals have right to be free of substantial interference with marriage (same-sex marriage)
2. Contraception: Applies to all, married or not.
3. Sexual Intimacy: May/May not Be one
4. Abortion
5. Parental Rights: Parents have right to raise their children as they see fit, including choice of religion and private schooling. Right may be lost through abuse, abandonment, or neglect.
6. Family Relations: Includes right to live together with close relatives
7. Obscene Material: Fundamental right to read obscene material. Does not apply to purchase, sell, import, or distribute. Does not apply yo child pornography.
8. Refusal of Medical Treatment: Unclear if this is a fundamental right. Does not apply to right to commit suicide.

Question 17

Abortion

Answer 17

Is a fundamental right under the theory of Privacy.

Roe v Wade: Holds, a woman has a right to terminate her pregnancy until viability of the fetus. After that stage, restrictions can apply so long as there are exceptions to preserve life and health of the mother.

TEST: Undue Burden

States may regulate abortion so long as it does not place an undue burden to access of an abortion.

NOT Unduly Burdensome:

• Informed consent requirements
• 24-hour waiting periods
• Parental notifications for minors
• Government financing of abortion is not required

Unduly Burdensome:

• Parental consent requirements (generally)
• Spousal requirements

Question 18

Equal Protection, Generally

Answer 18

Equal Protection Clause of the 14th Amendment applies to States and Localities (when Equal Protection is applied to Federal Government, it is done through the 5th Amendment).

Standards:

Strict Scrutiny, Intermediate Scrutiny, and Rational Basis

[The 14th Amendment has a Privileges and Immunity of National Citizenship. This means NOTHING in modern terms and is never the correct answer in MBE. Different than Comity Clause which deals with Priv/Imm of State Citizenship.]

Question 19

What Triggers Strict Scrutiny in Equal Protection?

Answer 19

Suspect Classifications that Trigger Strict Scrutiny are:

• Race
• Ethnicity
• National Origin

Additionally, a discriminatory purpose for the law needs to be present. Can be facial, historical, or proven through extrinsic evidence (who wrote/passed the law).

NOTE: A disproportionate impact is NOT ENOUGH to show a discriminatory purpose.

Question 20

Affirmative Action

Answer 20

Triggers strict scrutiny under Equal Protection.

Affirmative action is acceptable to correct specific past discrimination. General, societal discrimination is not enough.

Colleges/Universities

• Race can be a factor in a “holistic” evaluation.
• Racial quotas are unconstitutional.
• Must have a strong showing that racial preferences are essential to achieve a diverse class.

Primary/Secondary Schools

• Affirmative action is not allowed.

Question 21

Alienage as a Suspect Class

Answer 21

Generally, alienage triggers strict scrutiny.

Two Exceptions:

1. Federal (think Congressional) classifications based on U.S. citizenship DO NOT trigger strict scrutiny. These classifications are valid unless shown to be arbitrary and unreasonable.
2. State and Local governments may require citizenship for participation in government functions.

Rule: States and localities CANNOT require U.S. citizenship for access to private employment OR for government benefits.

Plyer v Doe: States cannot deny undocumented children public education.

Question 22

Gender and Legitimacy as Suspect Classes

Answer 22

Triggers Intermediate Scrutiny under Equal Protection.

• Gender classifications are almost always invalid. Permissible uses of gender discrimination include the draft and (historically) statutory rape.

Legitimacy: Something that depends on whether parents were married at the time of one’s birth

• Legitimacy laws are almost always invalid, especially if they are punitive in nature.

Question 23

Non-suspect classes in Equal Protection

Answer 23

• Age
• Wealth
• Sexual Orientation

These trigger rational basis.

Question 24

Racial Gerrymandering

Answer 24

Rule: Race may be a factor in drawing district lines, but not the predominant or sole factor.

Question 25

Political Gerrymandering

Answer 25

Theoretically, it could be unconstitutional but the Supreme Court treats it as a Political Question and will not review.

Question 26

Takings

Answer 26

Rule: Private property will not be taken for public use without just compensation.

Public Use: Needs only to be rationally related to a conceivable public purpose.

Just Compensation: Means fair market value.

Taking v Regulation

If there is a taking, just compensation is required. If there is a mere regulation on property, compensation is not required even if the regulation reduces the value of the property.

Physical Occupation

If the government physically occupies private property then a taking has occurred and just compensation required.

Zoning

Generally, not treated as a taking unless the zoning leaves a property with no economically viable use (very difficult standard to meet).

Question 27

Establishment of Religion Test

Answer 27

Lemon v Kurtzman:

Three part test (as it has never been formally overruled, even if difficult to reply)

1. Does the law have a secular purpose?
2. Does the law have a primary effect that neither advances nor inhibits religion?
3. Does the law avoid excessive government entanglement with religion?

Question 28

Endorsement of Religion

Answer 28

Rule: It is a violation of the Establishment Clause for the government to endorse one religion over another. This includes endorsing religion over an absence of religion or non-religion.

Examples of Unconstitutional Violations of Establishment Clause

• Officially sponsored school prayer
• Officially sponsored graduation prayer
• Prohibiting the teaching of evolution

Permissible Examples:

• Bible reading, so long as it is educational and not inspirational
• Displaying 10 Commandments so long as educational
• Legislative prayer as a historic practice
• Nativity Scenes are permissible on public property so long as there are other imagery to dilute the message (Santa, Jewish star, etc.)

Question 29

Religious Belief

Answer 29

(Free Exercise of Religion)

Rule: Religious belief is protected absolutely. Either to hold a belief or not to hold a belief.

Question 30

Religious Conduct

Answer 30

(Free Exercise of Religion)

Protected Qualifiedly

Rule: Laws regulating religious conduct because of its religious significance are unconstitutional.

Neutral Regulation of Religious Conduct is permissible if it is generally applicable.

Ministerial Exception: The federal government cannot regulate employment relations between a religious institution and its ministers (even if alleging a wrong such as employment discrimination)

Campus Access Rule: A state university that allows student groups to meet on campus must allow student religious groups equal access.

Question 31

Regulation of the Content of Expression

Answer 31

(Freedom of Expression)

Expressive Conduct (aka Symbolic Speech)

Test: A law regulating expressive content is constitutional if:

1. The law furthers an important interest;
2. That interest is unrelated to the suppression of expression; AND
3. the burden on expression is no greater than necessary.

[If the government is trying to suppress a particular message then the law is usually struck down.]

Question 32

Vagueness and Overbreadth

Answer 32

(Freedom of Expression)

Vagueness: Vague laws are ones that give no clear notice of what is prohibited and this violate due process.

Overbreadth: Overbroad laws are noes that go too far in regulating speech. These laws burden substantially more speech than is necessary to protect a compelling interest, and thus violates the First Amendment.

Question 33

Content-Neutral Regulation of Speech (Time, Place, Manner of Expression)

Answer 33

(Freedom of Speech)

Applies to public forums (airports excluded).

Test: Content-neutral laws regulating free speech are permissible IF:

1. The law is content-neutral on its face and as applied. It cannot allow for executive exceptions;
2. Alternative channels of communication must be left open. A flat prohibition is not permissible; AND
3. Must narrowly serve a significant state interest.

[Does NOT require a compelling interest.]

[This test usually allows for time, place, and manner regulations.]

Question 34

Content-Neutral Regulation (Time, Place, Manner) in Non-Public Forums

Answer 34

Relates to government property.

Rule: Any reasonable regulation of speech will be upheld.

Question 35

Categories of Content-Based Speech that Can be Regulated

Answer 35

• Obscenity
• Incitement
• Fighting Words
• Defamation
• Commercial Speech

Question 36

Obscenity

Answer 36

A category of content-based speech that can be regulated.

• Sexy: Must be erotic; appeal to the prurient interest.
• Society Sick: Must be patently offensive to the average person in society.
• Standards: Obscenity must be defined by proper standards to determine what is obscene. Vague/Overbroad laws will not suffice. [Full Frontal nudity as a banned category is too broad]
• Serious Value: Material must lack serious value. Determination is made by the Court.

Exceptions:

• Child pornography can be prohibited regardless is legally obscene.
• Gore/Violence are not legally obscene

Question 37

Incitement

Answer 37

Rule: Speech is not protected if it is an incitement to immediate violence. (Here and Now).

Question 38

Fighting Words

Answer 38

Fighting Words: Words likely to provoke an immediate breach of the peace.

• General vulgarity is not enough to be a fighting word
• Must be aimed/targeted at a person
• For exam purposes, fighting word statutes are generally vague/overbroad.

Question 39

Defamation

Answer 39

Defamation: False statements of fact that are damaging to a person’s reputation can be prohibited.

Public Officials can recover IF they can prove knowing or reckless falsity.

Private Individuals can recover for negligent falsity.

Question 40

Commercial Speech

Answer 40

Generally, most regulations of commercial speech are struck down so long as the advertisement is truthful and informational.

Test: To regulate commercial speech government must show

1. The regulation directly advances a substantial government interest AND
2. the law is narrowly tailored to that interest.

Question 41

Restrictions on Government Speech

Answer 41

Basically First Amendment restrictions (obscenity, incitement, etc.) do not apply to the government as a speaker.

EXCEPT: The government can refuse certain license plates that would be offensive to other citizens.

Question 42

Media and Free Speech

Answer 42

Rule: The media does not enjoy any special privileges. They have the same rights as everyone else.

Broadcasters: The government has greater regulatory authority over broadcasters than other forms of media due to historic reasons.

Question 43

Regulation of Association

Answer 43

Rule: Persons cannot be punished or disadvantaged by political associations.

Loyalty Oaths are usually struck down.

Question 44

Campaign Finance

Answer 44

The use of money to support a political campaign is a form of political speech and regulation of that money raises First Amendment issues.

• Contributions to political candidates can be regulated so long as the limits are not unreasonably low.
• Direct expenditures in support of a candidate or campaign or political issue cannot be regulated.