INDIV RIGHTS

Question 1

bill of rights

Answer 1

• first 10A
• limits federal power

Question 2

incorporation

Answer 2

14A DPC applies almost all provisions of the bill of rights to the states

reverse incorporation: 14A EPC doesn’t apply directly to fed gov but has been held to apply to fed gov through 5A DPC

Question 3

14A

Answer 3

prevents states from depriving any person of life, liberty, or property without DUE PROCESS and EQUAL PROTECTION OF LAWS

Question 4

state action requirement

Answer 4

• const generally applies only to gov’t action
• state actions can be found in actions of private persons who:

1. perform exclusive public functions (e.g., operation of a company town), or
2. have significant state involvement (state AFFIRMATIVELY encourages acts of discrimination by its citizens, or where there’s entwinement b/w state and private party)

merely granting land to an entity that then decides to adopt a discriminatory policy does not constitute affirmative action by the state

Question 5

state action re: private university who gets state funds

Answer 5

not sufficient to cause university’s conduct to be state action!

Question 6

levels of scrutiny

Answer 6

• courts use these tests to assess constitutionality of gov’t acts under substantive due process and equal protection (and 1A rights)

Question 7

rational basis

Answer 7

• law upheld if rationally related to legitimate gov’t purpose (easy to meet)
• regs that don’t affect fund rights or involve suspect/quasi-suspect classifications are reviewed under rational basis (age, disability, poverty)
• burden is on person challenging law

Question 8

intermed scrutiny

Answer 8

• regulations involving quasi-suspect classifications (gender, legitimacy) are reviewed under this standard
• law is upheld if substantially related to impt gov purpose
• burden on gov’t

Question 9

strict scrutiny

Answer 9

• law upheld if necessary (least restrictve means) to achieve compelling gov interest (can be phrased as: narrowly tailored to achieve an overriding gov purpose)
• regs affecting fund rights (interstate travel, voting, 1A rights) or involving suspect classications (race, national origin, alienage) reviewed under this standard
• burden on gov’t

Question 10

procedural due process

Answer 10

DPC of 5A (fed gov) and 14A (states) – person has right to fair PROCESS (notice, hearings) when gov’t deprives person of life, liberty, property

***rights exist only when gov’t makes an INTENTIONAL decision re this specific person

Question 11

procedural due process analysis steps

Answer 11

1) has there been deprivation of life, liberty, property?
liberty: if person loses freedom of action or denied freedom provided by constitution or statute (NOTE THAT injury to reputation is NOT deprivation of liberty or property)

property: gov’t benefits to which there is an entitlement (reasonable exepc of continued receipt) under state and fed law; public school attendance; business licenses, tenured gov’t employment (not at will employment)

2) what type of process is required?

notice: must be reasonably calculated to inform the person of deprivation
hearing: type and extent are determined by balancing test (weighs interest to person and value of procedural safeguards to that interest AGAINST gov’t interest)
neutral decisionmaker: can’t have actual bias or risk of actual biasis

examples: terminating welfare benefits

Question 12

prior judicial determinations

Answer 12

satisfies procedural due process requirements of 14A!

Question 13

if legislature authorizes property interest

Answer 13

legislature cannot authorize deprivation of a property interest, once conferred, without procedural safeguards

Question 14

substantive due process

Answer 14

• guarantees that laws will be FAIR – concerns gov’t actions that impinge on liberty interests (derives from DPC of 5A which applies to fed gov and DPC of 14A which applies to state and local gov)
• when fund right (all 1A rights, right to interstate travel, voting, privacy rights) is limited, law is assessed under strict scrutiny (no amount of process is enough for these rights!)
• rational basis applied in all other cases where no fund right is involved (right to education, econ rights)

Question 15

substantive due process vs EPC of 14A

Answer 15

• both require court to review substance of law rather than procedures
• SDP involves laws affecting rights of ALL people to do some activity (e.g., denying fund right to everyone)
• EPC usually involves laws treating certain people or CLASSES OF PEOPLE diff from others

Question 16

if gov’t denies fundamental right to class of people/certain people

Answer 16

analyze under substantive due process and 14A EPC

Question 17

fundamental rights (three main ones)

Answer 17

• right to privacy (inferred right)
  right to marry (regs that don’t burden right to marry, such as min age requirements, are subject to rational basis); right to procreate; use of contraceptives; parental rights re: upbringing of children
• right to travel - person has fund right to travel from state to state and be treated equally after moving to new state
• right to vote: fundamental right (restrictions, other than on basis of residency, age, citizenship, are invalid unless they pass strict scurinty)

Question 18

right to vote continued

Answer 18

• reasonable time periods for residency are valid
• conditoning right to vote on ownership of property is usually invalid

Question 19

laws prohibiting nonresidents from voting

Answer 19

generally valid
must pass rational basis test

Question 20

durational residency requirements

Answer 20

• invalid: 1-year residency to get welfare or medical care; 1-year residency to vote in state
• valid: 30-day residency to vote in state elections, 1 year residency to get divorce

Question 21

dilution of right to vote

Answer 21

• state/local elections: populations of voting districts must be substantially equal (state must show that deviation from mathematical equality is reasonable and tailored to promote legitimate state interest – preserving political subdivisions is a legitimate state interest)
• congressional elections: states must use almost exact mathematical equality when creating congressional districts within state

Question 22

equal protection

Answer 22

• arises when gov’t treats ppl differently from others
• 14A EPC applies to the states

Question 23

does equal protection apply to the fed gov’t?

Answer 23

yes, through the 5A due process clause (5A due process clause contains equal protection component)

Question 24

equal protection standards

Answer 24

• if fund right (right to travel, right to vote) or suspect classification is involved (race, national origin, alienage), strict scrutiny is used
• quasi-suspect classification (gender or non-marital children): intermediate scrutiny
• if classification doesn’t affect a fund right and does not involve suspect/quasi suspect class (age, disability, economics, etc), rational basis applies

Question 25

for strict or interm scrutiny to apply…

Answer 25

• there must be INTENT on part of the gov’t to discriminate
• intent can be shown be one of 3 ways

1. law that discriminates on its face
2. discrim application of factually neutral law and legislature’s discrim intent
3. facitlaly neutral law with a disprate impact on protected class and legislatures discrim intent

challenger bears burden

Question 26

strict scrutiny - suspect classifications
race and nat’l origin

Answer 26

• school integration: if proven that school board has engaged in racial districting of schools, board must take steps to eliminate effects of that discrimination (e.g., busing); assigning students to public primary or secondary school on basis of race to promote diversity does not satisfy strict scrutiny
• affirmative action: race based plan cannot be used to remedy general past societal discrim; unlike with oprimary and secondary schools, diverse student body is a compelling interest

Question 27

strict scrutiny - suspect classifications
alienage classifications

Answer 27

• federal classifications based on citizenship are not based on strict scrut
• state/local laws on alienage (citizenship status) are subject to strict scrut – so state gov’t cannot require US citizenship for employment or gov’t benefits
• exception: if state/local law discriminates against non-citizen participation in state gov’t such as voting or jury service, the rational basis standard is used; rational basis also used for laws limiting non-elective offices involving impt public policy such as police officers or school teachers

Question 28

undocumented aliens

Answer 28

• not suspect classification; state laws re them are subject to rational basis standard
• undocumented alien’s children –> heightened rational basis (denial of free public education to them has been held to be invalid)

Question 29

quasi-suspect classification

Answer 29

• classification based on gender and legitimacy
• must be substantially related to impt gov purpose; gov bears burden of showing exceedingly persuasive justification for the discrim
• gender classifications based on stereotypes are usually invalid; those designed to remedy past discrim are more likely to be upheld
• discrim regs intended to punish non-marital children are invalid

Question 30

other classifications

Answer 30

all other classifications are evaluated under rational basis standard (age, disability, wealth classifications)

Question 31

if law does not MAKE ANY specific classifications

Answer 31

it will be reviewed under rational basis standard