Due Process and Equal Protection Flashcards
Rational Basis Review
Plaintiff must prove no rational basis
No rational relationship to any legitimate gov. interest
Intermediate Scrutiny
Substantially related to an important government interest
Strict Scrutiny
Substantially related to compelling gov. interest AND narrowly tailored to achieve that end
Rational Basis Categories (non-exclusive)
-Age
-Alienage (federal)
-Disability
-Sexual Orientation (but might be w/ teeth)
-Wealth
-Economic
Intermediate Scrutiny Categories
-Gender
-Illegitimacy
Strict Scrutiny Categories
-Alienage (state)
-Domestic Travel
-National Origin
-Race
-Voting
Undocumented Immigrant Children
Have right to free public school primary + secondary eduction
Applied rational basis “with teeth”–“can hardly be considered rational unless it furthers some substantial goal of the state”
13th Amendment
Bars slavery
Can be used to regulate individuals, not just state action
14th Amendment
Prohibits states from violating
1) due process,
2) equal protection of the laws
3) privileges or immunities
Requires state action (not individ.)
ONLY IF
1) Widespread violations by states AND
2) “Congruent + proportional” to violations
15th Amendment
Prohibits states from discriminating with respect to race in voting
Requires state action (not individ.)
ONLY IF
1) Widespread violations by states AND
2) “Congruent + proportional” to violations
Privileges or Immunities Clause
14th A
V. limited–only applies to privileges of U.S. citizenship
-Travel across state lines + estab residence in new state (NOT discrim. v. non-residents: that’s priv. and imm)
-Petition Congress
-Vote for fed office
-Assemble
-Enter public lands
N/A re: corporations, non-citizens
Privileges and Immunities Clause
Article 4 (aka Comity Clause)
“The citizens of each State shall be entitled to the Privileges and Immunities of Citizens of the Several States”
Prohibits state discrim. v. non-residents re rts/activities fundamental to nat’l union (ex. employment, taxes, licenses)
Uncon UNLESS show sub. relation to sub. state interest
N/A re: corp.
Procedural Due Process
Protects v. gov. deprivation of “life, liberty + property” w/out due process of law
Due process of law = notice and hearing
Protects “persons” = citizens, non-citizens, corps
Procedural D.P. and Public Employment
-If fixed term employment or for cause = have procedural d. p. right in employment
–> need notice + hearing
Liberty Procedural D.P Interests
Broadly defined–freedom from bodily restraint, physical punishment
Property procedural d.p. interests
Narrower–(generally applies if everyone who meets x criteria is granted y, and some other interests)
Ex.
-Welfare benefits
-Licensing
-Driver’s license
-Public Education
Factor to determine adequate notice + hearing
-Importance of interest protected
-Risk of erroneous deprivation though current procedures
-Gov interest in streamlining processes
Substantive Due Process
Rights “implicit in the concept of ordered liberty,” “deeply rooted” in history + tradition
Fundamental Rights
-Contraceptives
-Marriage (not same sex marriage–still hovering vaguely around r. basis w/ teeth)
-Family Relations (ex. rt for extended family to live in same household)
-Private Education/Homeschool
-Possession of Obscene Material (not purchase/sale)
-Travel (Citizens)–from priv. or imm. clause
-Vote–from 1st (rt. to assoc.) + 14th
CANNOT be over-inclusive or under-inclusive re: these rts
Right to Family Relations
Have rt to extended family living together in same household
DO NOT have rt to unrelated persons living in same household
Right to Possession of Obscene Materials
Right to possess obscene materials in one’s own home
NOT right to buy/sell
NO right to child porn, even if in privacy of home
Right to Travel
From 14th A Priv. or Imm. Clause
CItizens have right to travel/move from state to state
NOT right to international travel–can set r. restrictions for nat. security
School Busing
Constitutional IF history of de jure segregation in system
Not constitutional if trying to remedy de facto segregation
Alienage Discrimination by States
Discrimination v. resident noncitizens by states = strict scrutiny (exception: public function exception)
Discrimination v. undocumented immigrants = rational basis, but can’t create own immigration policy (fed. duty)
Exception–can’t exclude undoc. children from public schools
Public-Function Exception
States CAN discriminate v. resident non-citizens IF public-function job (still strict scrutiny–just passes)
Ex.
Police officers
Gov. officials
Public School Teachers
Alienage Discrimination by Fed. Gov
Rational Basis Review (vs. states–strict scrutiny)
Comes from enumerated powers over immigration
Sexual Orientation
Technically rational basis–in practice probably rational basis with teeth
Privileges of U.S. Citizenship
V. limited
14th A priv. or immunities clause only applies to these
Primarily:
1) Travel across state lines + estab. new residence
2) Petition congress
3) Vote for fed office
4) Assemble
5) Enter public lands
Discrimination v. Out-of State-Residents
Prohibited by Art. 4 Priv + Immunities Clause, unless sub. related to sub. interest
CAN regulate if non-fundamental–ex. recreational licenses, preserving resources like parks, etc)
