Individual Guarantees Flashcards
1
Q
Bill of Rights
A
- 1-10 Amendments
- limits federal power
- 14th A DPC applies to almost all provisions of BR
- except 5th A prohibition of criminal trials without a grand jury indictment
- except 7th A right to a jury trial in civil cases
2
Q
13th Amendment
A
- prohibits slavery and involuntary servitude
2. “Enabling Clause”- congress can prohibit racially discriminatory action by anyone (gov, private)
3
Q
14th Amendment DPC
DPC and EPC exist
A
- prevents states from depriving person of life, liberty, property, without DP and equal protection of law
- section 5- gives congress power to adopt legis to enforce rights and guarantees above
- can’t expand/create new rights
- must prevent/remedy current vio of rights
- congress must point to pattern of state vio and adopt law narrowly tailored to solve vio
4
Q
15th Amendment
A
prevents state/fed from denying citizen right to vote on race/color
5
Q
Amendments and private conduct
A
- private conduct generally not prohibited, unless state action involved
- purely private conduct may be prohibited on commerce clause, interp broadly
- may prohibit private racial discrim in activities with substantial effect of IC
6
Q
To apply constitution:
A
- state must be involved
- can be a private indiv performing exclusive public function
- can be a private indiv having significant state involvement
- activities so traditionally exclusive of state
- if state affirmatively facilitates, encourages, or auth acts of discrim by its citizens
7
Q
Contract clause, what is it?
A
- limits states enacting laws to retroactively impair k rights
- no comparable federal clause but would vio 5th DPC
8
Q
Contract clause, scrutiny?
A
- private k- INTERMEDIATE
- state legis that substantially impairs existing k must:
- serve an important and legit public interest
- reasonably and narroly tailored to promte that interest
- public k- STRICT
- state is a party
- same test by stricter scrutiny
9
Q
Ex post facto laws
A
laws can’t retroactively alter criminal offenses or punishments in a substantially prejudicial manner for punishing a person for past activity, if it:
- makes criminal an act that was innocent when done
- gives greater punishment for an act than was given when the act was done
- reduces the ev required to convict than when it was committed
10
Q
Bill of attaineder
A
punishment without a judicial trial, not allowed
11
Q
Retroactive laws
A
C1. cannot vio contracts, ex post facto, bill of attainder
- must pass DPC
- if law does not relate to fundamental right, need only be rationally related to legit gov interest
12
Q
DPC
A
- notice and hearing req for gov agency to take life, liberty, prop.
- only intentional deprivation vio DPC
13
Q
Liberty, Property
A
- liberty- loss in significant freedom of action or is denied a freedom provided by the constitution or statute
- prop- abstract need or expectation is enough; legit claim or entitlement under state/fed law.
- continued attendance at public school, welfare benefits, sometimes gov employment
14
Q
How to determine the type of DP required:
A
- importance of the interest to the individual
- value of specific procedural safeguards to that interest
- V. gov interest in fiscal and admin efficiency
15
Q
Can you waive DP rights?
A
Yes, if waiver is voluntary and made knowingly
16
Q
Access to courts- indigent
A
gov fees must be waived if fee would deny fundamental right to indigent
- marriage license, divorce filing fee
does not apply to non fundamental rights (bankruptcy discharge, review of welfare termination)
17
Q
Type DP required:
commitment to mental institute
A
adults- prior notice, prior evidentiary hearing (unless emergency)
children- prior screening by neutral fact finder
18
Q
Type DP required:
welfare benefits
A
prior notice and prior evidentiary hearing
19
Q
Type DP required:
disability benefits
A
prior notice, opp to respond, subsequent evidentiary hearing
20
Q
Type DP required:
public employment tenured or term for cause
A
prior notice, opp to respond, subsequent evidentiary hearing
21
Q
Type DP required:
public edu , disciplinary or dismissal
A
prior notice, opp to respond, no formal evidentiary hearing req
22
Q
Type DP required:
license suspendsion
A
prior evidentiary hearing, except breathalyzer suspension statutes
23
Q
Type DP required:
Termination of parent’s custody rights
A
prior notice and prior evidentiary hearing
24
Q
Type DP required:
civil forfeitures
A
real property- prior notice and prior evidentiary hearing
personal prop- subsequent notice and hearing
25
Type DP required:
| detention of citizen enemy combatants
subsequent notice and meaningful opp to contest factual basis for detention before a neutral decisionmaker
26
5th Amendment
"Takings Clause"
private prop may not be taken for public use without just comp
- includes gov action of damage or impairing prop use
27
Takings clause
5th Amendment
28
Takings clause exceptions:
1. public use- when gov action is rationally related to a legit public purpose
- health, safety, econ, welfare, aesthetic
- redound to public advantage (railroad, utilities)
29
Taking v. Regulation
Taking- just compensation
Regulation- not req compensation
1. actual/physical appropriation = taking
temp/physical invasion may = taking, except emergency
2. use restrictions
a. denies all econ value of land = taking
b. temp denial of all econ value = court will weigh circum, planner's GF, reasonable expectation of owners, length of delay, affect on value of prop, fairness and justice
c. decrease econ value does not = taking if viable use left; court will weigh social goal being promoted, value lost, whether regulation substantially interferes with distinct expectations of owner
d. condition permits on convey title or easement = taking unless gov shoes condition relates to legit gov interest and adverse impact of development is proportional to loss caused to owner from forced transfer
-deny permit may = taking
30
What is just compensation?
Taking = just compensation
1. pay owner FMV at time of taking, based on loss to owner
2. terminate the regulation, pay owner damages
31
Substantive DP and equal protection both:
both require court to review substance of law rather than procedures
32
Substantive DP applies when:
If law limits liberty of ALL persons engaged in some activity
33
If law limits liberty of ALLvpersons engaged in some activity
substantive DP applies
34
Equal protection applies when:
1. limited to state action
2. law treats SOME person or class of persons differently from OTHERS
class of one- in prop regulation, can use EPC for arbitrary treatment against an individual
35
law treats SOME person or class of persons differently from OTHERS
equal protection applies
36
Strict Scrutiny
Regulations affect:
1. fundamental rights (interstate travel, privacy, voting, 1st A)
2. involving suspect class (race, national origin, state level alienage)
upheld, if necessary to achieve compelling gov purpose
no less burdensome alternative
BOP on gov (laws often invalid)
37
Intermediate Scruitny
Regulations involving:
1. quasi-suspect class (gender, legitimacy (marital/non), fed level alienage)
upheld, if substantially related to important gov purpose (not arbitrary, not unreasonable)
BOP on gov (sometimes other)
gender based usually invalid
38
Rational Basis
Regulations that don't affect fundamental rights, suspect, or quasi-suspect classes (age, disability, poverty, alienage/participation on state level processes, limiting non-elective offices- police, school teachers)
upheld, if rationally related to legit gov purpose
BOP on challenger (laws often valid, unless arbitrary or irrational)
can not deny alien children free public edu
39
2 clauses for DP
5th A- DP applies to fed gov
14th A- DP applies to state and local gov
same test
40
DPC test for both:
same under 5th A and 14th A
1. when a fundamental right is limited, the law/action is evaluated under STRICT
2. all other cases= RATIONAL
regulation that fails to give fair notice of forbidden/req conduct vio DPC
41
14th Amendment (EPC) standards
| DPC and EPC exist
1. when a fundamental right or suspect class involved = STRICT
2. quasi-suspect class = INTERMEDIATE
3. not fundamental, suspect, quasi = RATIONAL
42
14th Amendment (EPC) test
| DPC and EPC exist
STRICT/INTERMEDIATE
1. intent on the part of the gov to discriminate, shown by:
- law is discrim on its face
- discrim application of a facially neutral law
- discriminatory motive behind law
effect alone not enough, must show motive or ev of history of discrimination
- affirmative action = STRICT (remedying past discrimination, narrowly tailored)
- does not include diversity in public ed
- can't draw up voting districts based on race unless narrowly tailored to serve compelling gov interest
43
Right of privacy, examples:
(fundamental rights) STRICT
right to vote
marriage
sexual relations (no scrutiny, lack of legit state interest)
abortion
childrearing (care, custody, control)
read obscene material (not child porn, not sell, buy, transport)
zoning regulations that prevent extended family together
44
Fundamental rights, examples:
(right of privacy) STRICT
right to vote
marriage
sexual relations (no scrutiny, lack of legit state interest)
abortion
childrearing (care, custody, control)
read obscene material (not child porn, not sell, buy, transport)
zoning regulations that prevent extended family together
45
Abortion, analyze
interest to protect mom and fetus
1. pre-viability (can't survive outside)- state may adopt regulation protecting mom's health and fetus life
- can't place undue burden or subst obstacle to right
2. post-viability- state can't prohibit abortion if necessary to protect woman's health/safety
46
Restrictions on right to vote
1. residency req- reasonable time periods for state residency are valid, congress may override in presidential election
2. can't condition right to vote/hold office on ownership property
3. poll tax- no
4. states may req early registration to vote in primary
47
Congressional election lines
states- must use exact math equality to create districts
| congress- GF when it apportions reps among states
48
State and local elections
variance in number of persons included within districts cannot exceed a few percent
- except when elected at large
49
One person, one vote
when any level of gov decides to select reps to gov body by election from individual districts
- does not apply to special interest in community (water storage district)
50
Gerrymandering
race and suspect classes can't be predominant factor in drawing voting district boundaries (STRICT)
51
Right to travel
fundamental right to move states
- restrictions on right do not necessarily impair right (penalty for father abandonment is valid)
invalid:
1 yr to full welfare benefits
1 yr to state subsidized medical care
1 yr to vote in state
valid:
30 days to vote in state
1 yr to divorce
52
Right to international travel
not fundamental, RATIONAL BASIS
