Fundamental Rights

Question 1

Freedom of Relgion

Answer 1

Government must be religion neutral. It cannot pass laws that respect, prohibit or would entangle government with the free exercise of religion.

To be constitutional, laws concerning religion must:

1. Have a secular purpose
2. It’s primary effect cannot advance or prohibit religion
3. It must not cause excessive government entanglement with religion.

Question 2

Freedom of Association

Answer 2

US government cannot deny U.S. Citizens government benefits or jobs based on that citizens choice to affiliate with any group, club, or other organization as long as that citizen is not actively and knowingly conspiring with the organization for an illegal purpose. (does not matter if citizen knows group does illegal acts, citizen can only be banned if participating)

Question 3

Comity Clause (also known as the Privileges and Immunities Clause) of Article IV

Answer 3

Prohibits a state from discriminating against the citizens of another state. It does not apply to the federal government.

Question 4

Equal Protection Clause

Answer 4

The Equal Protection Clause of the 14th Amendment, prohibit states from discriminating against persons on the basis of national origin, race or ethnicity. Also applies to the federal government through The Due Process Clause of the Fifth Amendment.

Strict Scrutiny review: The law must be necessary, to an important government interest. Law must be narrowly tailored to achieve that interest.

Question 5

Bll of attainder

Answer 5

A bill of attainder is a legislative act that declares a person or group guilty of some crime and punishes them without a trial. Applies to criminal, penal, and government employment matters

Question 6

Ex Post facto

Answer 6

The constitutional prohibition on an “ex post facto” law is confined to a retroactive change to a criminal or penal law. A law that is civil in purpose is treated as a criminal law only if its punitive effect clearly overrides its civil purpose

i. ) Criminalizes an act that was not a crime when it was originally committed;
ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act;
iii) Deprives the defendant of a defense available at the time the act was committed; or
iv) Decreases the prosecution’s burden of proof required for a conviction to a level below that which was required when the alleged offense was committed.

Question 7

Due Process - Government Employment

Answer 7

If public employee can only be discharged for cause, then that employee has a property interest in their job, and is entitled to notice of termination and a pre-termination hearing.

Exception: if there is significant reason to fire them immediately then prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process

Question 8

Free Speech - Public Forum

Answer 8

The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions:

(i) are content-neutral as to both subject matter and viewpoint,
(ii) are narrowly tailored to serve a significant governmental interest, and
(iii) leave open ample alternative channels for communication of the information.

Question 9

First Amendment - Media’s Rights

Answer 9

The First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern (interpreted broadly).

Question 10

Government takings of property

Answer 10

the court will consider: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

government may destroy property in response to a public peril without the payment of compensation.

Question 11

Rights of Aliens

Answer 11

Laws based on citizenship status (Alienage)
State laws = Strict Scrutiny

Congressional Federal law = Plenary power, so immune from judicial control.

Question 12

Right to Contract

Answer 12

Article I states that no state legislation may retroactively impair the obligation of contracts. The article does not apply to federal action or to court decisions.

Question 13

Equal Protection - Suspect Classification - Alienage

Answer 13

• States cannot require U.S. Citizenship (Alienage) for government benefits or private employment.
• Laws based on Alienage “must be necessary, and the least restrictive way to achieve a compelling governmental interest.” (Strict Scrutiny)
• 2 Exceptions: (1) Fed. Gov. / Congress can require U.S. Citizenship due to their plenary power over Gov. jobs & benefits.
  (2) Government can require U.S. citizenship for participation in important gov. functions that are related to self-government. (e.g. jobs, voting, jury duty, any kind of law enforcement officer, & public school teachers).

Example: In State tuition, states can require recipients to be a resident of state but cannot discriminate against lawful in-state, tax paying residents who were not citizens of U.S.

Question 14

Intermediate Scrutiny - Quasi-Suspect Classifications of Gender and illegitimate kids

Answer 14

Laws based on Gender and Legitimacy must be SUBSTANTIALLY related to an IMPORTANT government interest.

— Burden is on Government to prove.

1. Gender
   Affirmative action laws benefiting women over men have been upheld (e.g. tax exemptions, increased social security benefits, and increased protection from mandatory armed forces discharge).
2. Non-marital Kids
   Laws that classify children based on marital status of their parents must be substantially related to an important to a government interest. (e.g. government benefits, workers comp, paternity test not ok)

Question 15

Strict Scrutiny Review - Fundamental Rights

Answer 15

The law must be NECESSARY, and the least restrictive way to achieve a COMPELLING governmental interest.

Burden of proof is on government to meet test and show that it is attempting to protect a current interest.

The strict scrutiny test is applied when laws deal with a Suspect classification or a Fundamental right.

Suspect classifications are: race, ethnicity, national origin, and, if the classification is by state law, alienage.

Recognized fundamental Rights are the right to:

(i) Vote;
(ii) Travel among the states NOT internationally;
(iii) Privacy (covers: sexual relations, abortion, child rearing, and the right of related persons to live together).

Question 16

Intermediate Scrutiny Review

Answer 16

To be constitutional, the law must be substantially related to an important government interest.

Burden of proof is on government to meet test and show that it is attempting to protect a current interest.

(i)

Question 17

Right to Vote - Felons

Answer 17

As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

Question 18

Taxation - State to Federal

Answer 18

The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states.

Question 19

The Enabling Clause (Section Five) of the Fourteenth Amendment

Answer 19

Permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Amendment, but not to expand those rights or create new ones.

Question 20

Laws based on Alienage Classifications

How tested: Usually state is requiring that person be a citizen of the state to do state job or receive state benefits

Answer 20

Alienage = Citizenship status (Undocumented aliens not a suspect class)

Generally, the Strict Scrutiny Test will apply.
(“Law must be necessary to achieve a compelling government interest”)

Exceptions: Rational basis (rationally related to a legitimate government interest) applies if the classification is related to (1) Self-Govt and the Democratic process or (2) Congressional law regulating immigration.

(1) Self-Govt and the Democratic process exception applies to: Voting, Serving on jury, working as police officer, probation officer, or teacher.
(2) Congressional law regulating immigration. Congress has plenary power to regulate immigration.

Question 21

Executive Power - Foreign Relations

Congress enacted a statute directing U.S. ambassadors to send formal letters to the governments of their host countries, protesting any violations by those governments of international treaties on weapons sales. The President prefers to handle violations by certain countries in a less formal manner and has directed ambassadors not to comply with the statute.
Is the President’s action constitutional?

Answer 21

The President’s action is constitutional, because the U.S. Supreme Court has ruled that the President alone has the authority to represent the United States in foreign affairs. Because the statute intrudes on the President’s authority, it is unconstitutional and has no effect.

Question 22

Separation of Powers / Executive Authority

A federal statute established a new five-member National Prosperity Board with broad regulatory powers over the operation of the securities, banking, and commodities industries, including the power to issue rules with the force of law. The president is allowed to select 3 members of the board and Congress selects two. Is this constitutional?

Answer 22

No. Under Article II, section 2, only the President, and not Congress, may appoint members of a body with administrative or enforcement (i.e., executive) powers.

Question 23

Separation of Powers - Impoundment
A federal statute sets up a program of dental education. The statute provides that the Secretary of Health and Human Services “shall, on a current basis, spend $100 Million for this purpose. President Says, stop spending money. What result?

Answer 23

Secretary must spend $100 MM. If Congress explicitly mandates an expenditure of funds, the President does not have the power to impound those funds (i.e., refuse to spend or delay the spending) unless the legislation authorizes him to do so.

Question 24

Voting Rights - Fundamental Right

Answer 24

Strict Scrutiny: The law must be NECESSARY to a COMPELLING government interest and NARROWLY tailored to that interest.

Protected Rights:
1. One Person one vote: all votes must be equal in weight and number. So all districts must be close in voter size, does not apply to allotment of representatives.

2. Residency: Can be used to restrict right to vote, subject to rational basis review. P must have opportunity to prove residency.
3. Length of residency: Can require P to complete short residency requirement, subject to Strict Scrutiny review.

Exam Note:
Equal Protection Violation - if law not applied to all.
Fundamental right violation if applies to all.

Question 25

Rational Basis Review

Answer 25

“Is the law rationally related to a legitimate government interest?”

Burden: These laws are presumed valid, thus the challenger must overcome the presumption and prove that the law is arbitrary or irrational.

Rational Basis Review is the lowest level of review, and almost everything passes this test.

Is used when Strict and intermediate scrutiny are not used, usually in lifestyle, taxation, zoning, and punitive damages cases/laws.

Question 26

Procedural Due Process - Generally

Answer 26

Government must give notice and a hearing if depriving individuals and corporations of life, liberty, or property.

– “Liberty”: Significant governmental restraint on one’s physical freedom, fundamental rights, or freedom of choice or action.

– “Property”: Govt. Benefits or job derived from a legitimate claim of entitlement” by virtue of statute, employment contract, or custom

> Welfare benefits: Notice and hearing BEFORE taking
Disability benefits & Employment: Notice before taking but hearing is only required after.

Question 27

Fundamental Rights - Familial Matters: Marriage, Contraception, Sexual relations, abortion

Answer 27

The Supreme Court has found that people have certain fundamental rights in familial matters.

1. Marriage: The right to marry is fundamental.
2. Contraception: All persons have the right to use contraceptives, and state cannot restrict who sales it or the age of who can buy it.
3. Sexual behavior: Government cannot regulate sexaul behavior among two consenting adults (except prostitution).
4. Abortion: Woman has fundamental right to abortion, balanced with the state’s compelling interest in protecting the child’s life.

Question 28

Second Amendment Right To Keep and Bear Arms

Answer 28

A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

SCOTUS held that this amendment gives citizens the right to possess and carry firearms unconnected to militia services and can use them for traditional purposes. US v. Heller

Question 29

Michigan Constitution Right To Keep and Bear Arms

Answer 29

Every person has a right to keep and bear arms for the defense of himself and the state.

Question 30

Free Speech - Regulating Expressive Conduct

Answer 30

A person’s expressive acts “i.e flag burning” can be regulated if meets the law is:

a) Within the government’s power to enact
b) Furthers an IMPORTANT governmental interest;
c) that is UNRELATED to the suppression of ideas; and
d) is NARROWLY tailored.

Question 31

Vague and Overbroad

Answer 31

A statute may be unconstitutionally vague if:
(1) It does not describe the prohibited conduct.

(2) Allows the trier of fact unstructured and unlimited discretion to determine if it violated.
(3) it impinges on First Amendment freedom.

Vagueness challenges not involving First Amendment are based on facts of the case.