Equal Protection and Individual Rights

Question 1

Amendments Incorporated

Answer 1

1A, 2A, 4A, Miranda and takings of 5A, 6A, and 8A
NOT incorporated (ie not applicable to the states): 3A, 5A grand jury indictment right, 7A right to jury trial in civil cases, 10A

Question 2

13A

Answer 2

Neither slavery nor involuntary servitude shall exist in the US; no state action required–applies to private action; enabling clause gives Congress the power to adopt appropriate legislation, and SCOTUS will uphold legislation prohibiting almost any private racially discriminatory act that can be characterized as a badge of slavery
Upshot: private action doesnt violate 13A, but violates statutes adopted by Cong under 13A

Question 3

14A

Answer 3

Prohibits STATES (not federal gov or private ppl) from depriving any person of life, liberty, or property without due process and equal protection of the laws.

Question 4

State Action

Answer 4

Only applies to states; we need a state or local government or officer or private behavior that constitutes a public function (running a town, holding elections for gov office) or private behavior that is excessively entangled with state action (e.g., racially restrictive covenants, aiding racist schools)

Question 5

How Congress Regulates Private Behavior

Answer 5

13A, commerce power (e.g. public accommodations), NOT § 5 of 14A

Question 6

15A

Answer 6

Prohibits state and federal governments from denying any citizen the right to vote on account of race or color

Question 7

Examples of insufficient state axn

Answer 7

state granting a monopoly to a business / heavy regulation; private schools that receive subsidies from government and are 99% funded by them; licensing and provision of essential services to a private club
BASICALLY MUST BE SIGNIFICANTLY INVOLVED

Question 8

Retroactive Legislation: Contract Clause

Answer 8

Contract Clause limits ability of states to enact laws that retroactiely impair contract rights; doesnt affect contracts not yet madel only applicable to state legislation

Question 9

Retroactive Legislation: Ex post facto laws

Answer 9

Neither the state nor the federal government may pass a law that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity (e.g., criminalizes a previously legal act, enhances punishment, reduces evidentiary burden)

Question 10

Retroactive Legislation: Bill of attainder

Answer 10

State and federal governments cannot pass a legislative act that inflicts punishment without a judicial trial

Question 11

Retroactive Legislation other than K Clause, post facto, and attainder bill

Answer 11

upheld if it is rationally related to a legitimate gov interest (substantive due process issue)

Question 12

Procedural Due Process

Answer 12

Government shall not deprive a person’s life, liberty, or property without due process, which requires at least an opportuntiy to present objections to the proposed action to a fair neutral decisionmaker

Question 13

PDP: Liberty

Answer 13

Loss of liberty occurs when a person loses a significant freedom of axn or is denied a freedom provided by the C or a statute

Question 14

PDP: Property

Answer 14

legitimate claim or entitlement to a benefit under state or federal law (e.g., going to school, welfare benefits, contined public empt if u can be fired only for cause)

Question 15

PDP: Process required

Answer 15

Weigh (1) importance of individaul interest involved, (2) value of specific procedural safeguards to that interest and (3) the governmental interest in fiscal and administrative efficiency

Question 16

Takings Clause

Answer 16

Government may take private prop for public use if it provides just compensation measured by the loss to the owner; must be for public use, otherwise gov has toreturn the prop

Question 17

Two Types of Takings

Answer 17

(1) Possessory: Gov confiscates or physically occupies prop (even nominally–1 sq ft)
(2) Regulatory: Gov regulation leaves no reasonable eceonomicaly viable use of the property
NOT temporary depravation–that’s OK as long as gov’s action is reasonable

Question 18

Substantive Due Process v. EP

Answer 18

Law limits the liberty of ALL people to engage in some activity (contra EPC – law limits liberty of SOME people or a class of people to engage in some activity but permits others)

Question 19

Strict Scrutiny

Answer 19

A law is upheld if it is necessary to achieve a compelling government purpose (must be the actual purpose, and must be the least restrictive means); BOP on gov

Question 20

Intermediate Scrutiny

Answer 20

A law is upheld if it is substantially related to an important government purpose (must be actual purpose and a very good way to achieve it); BOP on gov [exceedingly persuasive justification]

Question 21

Rational Basis Review

Answer 21

A law is upheld if it is rationally related to a legitimate government purpose (need not be actual purpose); BOP on challenger
Basically will be upheld unless it’s arbitrary or irrational (deference)

Question 22

Fundamental Rights

Answer 22

(1) Travel, (2) Voting, (3) 1A, (4) Privacy (includes abortion, procreation/contraception, marriage, child rearing / custody / keeping family together, consensual adult sex, right to refuse medical treatment), (5) 2A

Question 23

Abortion Test

Answer 23

Undue burden test: Prior to viability, states may not prohibit abortions, but may regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. After viability, states may prohibit abortions unless it is necessary to protect the woman’s health.
Note: Gov has no duty to subsidize abortions or provide them in public hospitals

Question 24

Examples of undue burdens

Answer 24

spousal consent / notification laws, requirement that physicians have admitting privileges at hospitals
NOT an undue burden: parental consent for minors (as long as alt. judicial procedure is avail), req that abortions be performed by licensed physicians, prohibition of partial birth abortion, 24-hr waiting period

Question 25

FRs triggering SS

Answer 25

Privacy (besides abortion), travel, vote, 1A

Question 26

NOT FRs (subject only to RBR)

Answer 26

Right to practice a trade / profession / economic liberties, right to physician-assisted death, right to education

Question 27

EP: Facially racially discriminatory laws or facially neutral laws with a racially discriminatory purpose

Answer 27

SS is used; race includes race, national origin, and alienage*
*states can discrim based on alienage for exclusive gov fct liek teaching primary/secondary school if they meet RBR

Question 28

EP: Facially neutral laws with discriminatory effect but no purpose/intent

Answer 28

RBR is used

Question 29

EP: Gender/sex discrimination

Answer 29

IS is used (“exceedingly persuasive justification”); if facially neutral, have to show both discriminatory impact and intent; NO gender classifications benefiting women based on steroetypes!

Question 30

Affirmative Action

Answer 30

Usually these are facially racial’ they require SS. Upshot is that numerical set-asides for minority things require clear proof of past discrim, and schools/instituions may use race as a factor in admissions if there’s no race-neutral alternative (no point-adding either); pulbic school systms cant use race to assign students to schools w/o meeting SS; no quotas/setting aside seats

Question 31

EP: Disparate impact/effect but no evidence of animus

Answer 31

RBR applied

Question 32

EP: nonsuspect classes

Answer 32

age, wealth, disability, sexual orientation; apply RBR

Question 33

EP: illegitimacy (nonmarital children) and undocumented alien children

Answer 33

IS applies

Question 34

Restrictions on the Right to Vote

Answer 34

Short residency requirements are OK (compelling interest), but nothing longer than 30 days; property ownership is invalid; poll taxes are invalid; states may subsidize primaries of major parties

Question 35

Dilution of Right to Vote: 1 Person, 1 Vote

Answer 35

When a gov body establishes voting districts, the number of persons in each district may not vary significanty. For congressional, must be almost exactly equal. For state, must be no unjustifiably large variance

Question 36

Exception to the 1 Person, 1 Vote Principle

Answer 36

Appointed Officials, At Large Elections, special purpose governmnt units (water storage districts)

Question 37

Gerrymandering

Answer 37

Race can’t be the predominant factor in drawing the boundaries of a voting district unless the distrct plan can pass muster under SS (bizarre shape can evidence racism); political gerrymandering is Ok

Question 38

Right to Travel

Answer 38

Right to enter and elave another state and to be treated equally if they become permanent residents of that state