DP and Equal Protection

Question 1

What do 14th and 15th amend prohibit?

Answer 1

Prohibit gvt conduct, not pvt conduct, which infringes upon protected individual rts

Question 2

What can’t gvt do wrt pvt discrimination?

Answer 2

Gvt can’t

• be significantly involved in pvt discrimination
• facilitate a pvt agreement to discriminate
• profit from pvt discrimination

Question 3

When can state action be found?

Answer 3

1. Public fct theory: where pvt entity is carrying on activities traditionally and exclusively performed by gvt; or
2. Significant state involvement, endoresement, or encouragement theory: where gvt and pvt entity are so closely related that the action by the pvt party can be treated as action by gvt

Question 4

Scope of DPC

Answer 4

DP and EPC of 14th amend protect the rts of persons.

A corp is considered a person for purposes of due process and equal protection

Question 5

5th amend

Answer 5

Applies to fed gvt

- Provides that no person shall be deprived of life, liberty, or property, w/o dp of law

Question 6

14th amend

Answer 6

Applies to states
- Provides that no state shall make or enforce any law which shall deprive any person of life liberty or property w/o dp of law

Question 7

What does DP entitle a person to?

Answer 7

1. Where there is a deprivation of one’s life liberty or property interests, the individual is entitled to findamentally fair procedural safeguards (notice and a meaningful hearing within a reasonable time)
2. Determining what process is rqd
   Three factor balancing test:
3. Pvt interest affected by gvt action
4. Risk of erroneous deprivation of that interest using correct procedures and probative value of additional or substitute safeguards; and
5. Burden (fiscal and administrative) involved in providing additional process. The greater the importance of the threatened interest, the greater the likelihood that the Ct will rq extensive procedural safeguards prior to termination of that interest

Question 8

Substantive due process

Answer 8

used to evaluate governmental regs that affect fundamental rts of personhood
Use strict scrutiny review

Question 9

Std of review: Strict Scrutiny

Answer 9

For Fundamental Rts/suspect classifications - race, ethnicity, national origin, and if when state law - alienage
- Law must be necessary to achieve a compelling gvt interst
Gvt bears the burden of proof
- Strict in theory, fatal in fact
- Need discriminatory intent, not just disproportionate impact

Question 10

Std of review: Intermediate scrutiny

Answer 10

Applies to legitimacy and gender

• Law must be substantially related to an important gvt interest
• Burden of proof is on gvt
• Usually challenger wins
• Need discriminatory intent, not just disproportionate impact

Question 11

Std of review: Rational basis

Answer 11

Law must be rationally related to a legitimate gvt interest

• Challenger bears burden of proof to establish law is arbitrary or irrational
• Hard to strike down laws on this. Gvt can defend law for any reason even if different reason from why they enacted it

Question 12

What is difference btw DP v. EP

Answer 12

Law denying fundamental rt to everyone – violates DP

Law denying fundamental rt only to some – violates equal protection

Question 13

Fundamental rts

Answer 13

1. Travel: Fundamental rt to travel from state to state
2. Voting and Ballot Access
3. Privacy
   - Marriage: Rqmnts for marriage ok but no substantial interference with marriage of age-qualified men and women
   - Contraception: Fundamental rt for everyone, married or no
   - Sexual intimacy: ct stays out of it
   - Abortion: No substantial interference with choice until viability of fetus.
   - Parental rts: Includes rt to raise child as you see fit, including choice of religious/pvt school
   - Family relations: Includes rt to live together with close relatives
   - Obscene material: Includes rt to read obscene material in privacy of one’s home
   - Refusal of medical treatment - but not rt to suicide
4. Rt to bear arms: have this rt unconnected with svc in a militia and to use firearm for traditionally lawful purpose – self-defense within home

Question 14

Affiramtive action

Answer 14

Triggers strict scrutiny

• General societal discrimination dn justify affirmative action
• Upheld when it correct past discrimination by the specific dpt or agency now engaged in affirmative action
• Preferential admission to college allowed to promote diversity in student body. stds must be flexible

Question 15

Gender

Answer 15

Triggers intermediate scrutiny

• Almost always invalid
• Allowed in statutory rape and the draft
• Affirmative action - benign discrimination
• Upheld regulations granting beneficial treatment to women over men bc providing a remedy for past gender-based discrimination is an important gvt interest

Question 16

Eminent domain

Answer 16

Pvt property shall not be taken for gvt use without just compensation

• Power of gvt to take pvt property for public purposes
• Takings Clause of 5th Amend acts to check this power
• Public use need only be rationally related to a conceivable public purpose

Question 17

Is zoning a taking?

Answer 17

Zoning is not a taking so long as zoning advances legitimate interests and dn extinguish a fundamental attribute of ownership
- Can rise to level of taking when it leaves no economically viable use for the property and has the result of a total loss

Question 18

Bill of attainder

Answer 18

Legislative act that inflicts punishment w/o judicial trial upon named individual for past conduct

Question 19

Ex post facto laws

Answer 19

Unconstitutional to expand criminal liability retroactively either by creating a new crime or by increasing the penalty for past conduct

Question 20

K clause

Answer 20

Bars states from legislative impairment of K, unless there is an overriding need – Great Depression
K Clause applies only to state legislation and not to state ct decisions or fed gvt