Individual Liberties 1

Question 1

Protection of Individual Liberties, only govt?

Answer 1

General Rule: Const. applies only to govt. action (fed., state, or local)

Two exceptions:

1. Exclusive public function
2. Significant state involvement (entanglement)

Question 2

Exceptions where private parties subject to const protections to individual liberties

Answer 2

Const. will apply to private conduct where:

1. Exclusive public function - a private entity performs a task traditionally performed by govt. (narrow exception)
   
   • Arises only if a private entity exclusively operates a govt. function (e.g., private prisons, elections)
2. Significant state involvement (entanglement) - govt. affirmatively authorizes or facilitates private conduct
   
   • State must affirmatively approve or validate private conduct - permitting it alone is insufficient
     
     • Examples of state action- court enforces a racially restrictive covenant; state provides books to private schools that racially discriminate
     • Examples of no state action - govt. grants liquor license to racially discriminatory private club; private school receiving govt. funds fires a teacher over speech

Question 3

Other ways that congress can regulate private parties regarding civil liberties

Answer 3

Congress may indirectly regulate private conduct through the Commerce Clause (if it affects interstate commerce) or through the 13th Amend. (enabling Congress to pass legislation enforcing the 13th Amend. ban on slavery)

Question 4

To which the Bill of Rights (BoR) applies?

Answer 4

Federal: General Rule: only applies directly to the fed. govt.

State and Local: Certain provisions of the BoR apply to state and local govts. through the incorporation doctrine

• Incorporation- the Supreme Court has held specific BoR provisions applicable to the states through incorporation into the 14th Amend. Due Process (DP) Clause (Most BoR provisions are now incorporated)

Question 5

What BoR are NOT incorporated by the 14th Amendment to states?

Answer 5

Some examples:

• 3^rd Amend. right not to have soldiers quartered in homes
• 5^th Amend. right to grand jury indictment in criminal cases
• 7^th Amend. right to jury trial in civil cases
• 8^th Amend

Question 6

What is Reverse Incorporation?

Answer 6

Reverse incorporation -14^th Amend. Equal Protection Clause does not apply directly to the fed. govt.,but has been held to apply to the fed. govt. through the 5^th Amend. DP Clause

Question 7

What are the enabling clauses?

Answer 7

The 13th, 14th, and 15th Amendments each contain an enabling clause authorizing Congress to adopt appropriate legislation to enforce the rights these Amendments guarantee

1. 13A: Prohibition on Slavery and involuntary servitude
2. 14A: Due Process and Equal Protection
3. 15A: Right to vote on the basis of race or color

Question 8

Enabling powers and 13th Amendment

Answer 8

13^thAmend. - prohibition on slavery and involuntary servitude

• Congress can adopt legislation prohibiting almost any private racial discrimination that constitutes a ‘‘badge or incident of slavery’’
• E.g., Congress can pass a law prohibiting employers from discriminating in hiring on the basis of race
• No state action requirement -13^thAmend. applies to private action by its terms

Question 9

Enabling powers and 14th Amendment

Answer 9

14^thAmend. - prohibits states from depriving any person of life, liberty, or property without due process and equal protection

• Congress can adopt legislation to enforce rights and guarantees, but may not expand existing, or create new, constitutional rights
• Requirements- law passed pursuant to 14^th Amend. must:
  
  1. Point to a history and pattern of state violation of rights; and
  2. Be proportional and congruent to solving the violation

Question 10

Enabling powers and 15th Amendment

Answer 10

15^th Amend. - prohibits state and fed. govts. from denying any citizen the right to vote on the basis of race or color

• Can be limited by other Const. principles
• Much less likely to appear on the bar exam

Question 11

What are the three levels of scrutiny? Purpose?

Answer 11

They are used to analyze the constitutionality of Govt acts under substantive process and equal protection

1. Rational Basis: a law will be upheld if it is rationally related to a legitimate govt. purpose
2. Intermediate scrutiny: a law will be upheld if it is substantially related to an important govt. purpose
3. Strict scrutiny – a law will be upheld if it is necessary to achieve a compelling govt. interest

Question 12

What is the rational basis tests? Burden of proof?

Answer 12

Rational basis - a law will be upheld if it is rationally related to a legitimate govt. purpose

• Rationally Related (A law will almost always be upheld under rational basis review unless it is completely irrational or arbitrary); to a
• Govt purpose (Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law)
• Scope: Not irrational nor arbitrary
• Burden of proof- challenger bears the burden of proof

Question 13

What is Rational Basis used for?

Answer 13

• Discrimination on alienage status by congress
  
  • State discrimination on alienage is rational for self-governance positions (held office, police, teachers, not notaries)
• Government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved
• Abortion
• Forum: Restriction on nonpublic/limited forums (viewpoint neutral also)
• NON FUNDAMENTAL RIGHTS
• non-suspect classifications
  
  • age
  • disability
  • wealth
  • alienage classifications by Congress
  • alienage classifications by state/local related to democratic self-governance
  • all other classifications (height, smoking)

Question 14

What is the intermediate scrutiny test? Burden of proof?

Answer 14

Intermediate scrutiny - a law will be upheld if it is substantially related to an important govt. purpose

• Substantially related (directly advances) an
• Important/substantial govt puropose
  
  • Govt. goal must be important; courts look at the actual reason the law was enacted
• Scope: Is narrowly tailored
• Burden of proof- govt. bears the burden of proof

Question 15

What is intermediate scrutiny used for?

Answer 15

• Content neutral restriction on protected speech
• Restriction test for protected commercial speech
• Regulation test for symbolic speech (conduct to convey a message)
• Forum: Neutral Base Restrictions in public forums
• Quasi – suspect classification
  • ​gender
  • illegitimacy
  • classification based on undocumented alien children (maybe)

Question 16

What is the Strict Scrutiny test? Burden of proof?

Answer 16

Strict scrutiny – a law will be upheld if it is necessary to achieve a compelling govt. interest

• Necessary (Govt. must show there are no less restrictive or burdensome means of achieving its goal); for a
• Compelling Gov Int (Courts look at the actual reason the law was enacted)
• Scope: Less restricte option is used
• Burden of proof- govt. bears the burden of proof

Question 17

What is strict scrutiny used for?

Answer 17

• Content based restriction on protected speech
• Rule for discrimination against an specific religion (non-neutral laws) (lemon rule applies when restriction or burdens to a religion occur)
• Rule for Gov. Intervention in Freedom of Association
• Discrimination on alienage by states
• Restrictions on FUNDAMENTAL RIGHTS: Right to travel (inside the US), Right to vote, Free Speech and assembly
• Forum: Content based restriction in public forums
• Suspect Classifications:
  
  • ​race (look for the two elements: disparate effect and discriminatory intent)
  • national origin
  • alienage classifications by state/local generally (not federal)
  • denial of fundamental rights to some class of people (doesn’t have to be a suspect classification)

Question 18

Procedural due process, when it applies?

Answer 18

A fair process (e.g., notice, hearings) is required for govt. to take or deprive a person’s life, liberty, or property

• Due process rights arise only if govt. acts to deprive an individual, not when govt. acts generally

Question 19

Analysis to determine whether something follows procedural due process

Answer 19

1. Has there been a deprivation of life, liberty, or property?
   
   • Liberty deprivation- loss of significant freedom of action or freedom provided by Const. or statute (e.g., institutionalization, govt. restriction of fundamental rights)
   • Property deprivation - a legitimate claim or entitlement to a benefit under law, which goes unfulfilled (E.g., public school attendance, welfare)
2. What procedures are required? - determined by balancing:
   
   • Importance of the individuaI interest involved, and
   • Value of procedural safeguards to that interest, against
   • Govt. interest (i.e., fiscaI or administrative efficiency)
     
     • Usually fair procedures, an unbiased decision-maker, and notice of the govt.’s action will be required

Question 20

Some examples of situations where substantial due process is required

Answer 20

Procedural due process requirements arise with:

• Terminating welfare/social security benefits;
• separating child from parents;
• punitive damages awards;
• enemy combatant status for citizens obtained in foreign countries

Question 21

Substantial due process, when it arises?

Answer 21

Involves the determination of whether govt. has adequate reasons for depriving life, liberty, or property

• Is not about the process, but for the reasons
• Encompasses both fundamental and non­fundamental rights
  
  • Non-fundamental rights- rational basis
  • Fundamental rights - strict scrutiny

Question 22

Substantive DP vs. Equal Protection Clause (EP)

Answer 22

• Similarities - under both substantive DP and EP, a court reviews the substance of the law, not procedures
• Differences:
  
  • Substantive DP- usually involves laws affecting rights of all persons to engage in some conduct or activity
  • EP - usually involves laws treating certain people or classes of people differently than others, often based on some trait

Question 23

Economic rights on the constiutution

Answer 23

Limitation on economic rights, mostly always fall in a rational basis test

• Const. provides only minimal protection for economic liberties (laws affecting or amounting to a taking of one’s economic rights)
• Rational basis applies unless the infringement falls under the Contract Clause or Takings Clause

Question 24

Contract Clause of the constitution

Answer 24

Effect: states cannot impair existing contractual duties

• Applies only to state/local interference with existing contractual obligations, including govt. obligations
• Depending if the law impairs a right on a private or a public contract, the level of scrutiny will be different:
  
  • Private: Intermediate
  • Govt: Strict Scrutiny

Question 25

Contract clause and level of scrutiny on laws limiting contracts rights

Answer 25

Levels of scrutiny - different for private vs. public contracts:

• Private contracts - intermediate-type scrutiny: if a law substantially impairs a party’s rights under an existing contract, it violates the Contract Clause unless the law:
  
  • Serves an important, legitimate public interest; and
  • Is reasonable and narrowly tailored in promoting that interest
• Govt. contracts - stricter scrutiny
  
  • Local laws substantially impairing or interfering with existing govt. contracts must be reasonable and necessary to serve an important public purpose

Question 26

What is the effects of the ex post facto clause of the constitution?

Answer 26

Ex Post Facto Clause - prohibits ex post facto laws

• Test- a law is an ex post facto law if it either:

1. Criminally punishes conduct that was lawful when done,
2. Increases punishment for a crime after it has been committed, or
3. Reduces the burden required to convict a person for a crime after it has been committed

• Does not apply to civil liability, where retroactive legislation must meet only rational basis
• Note- Ex Post Facto Clause is contained in the Contracts Clause

Question 27

What is the bill of attainder?

Answer 27

Bill of attainder - legislative acts that punish specific individuals without a judicial trial

• E.g., an order to imprison a person without judicial process
• Bills of attainder are prohibited under the Const.

Question 28

What is the takings clause?

Answer 28

The 5thAmend. prohibits govt. from taking private property without providing just compensation to the owner and/or occupant

• Govt. may take private property for ‘‘public use’’; taking can be possessory (i.e., physical) or regulatory
• Applies to govt. action that significantly damages property or its use

Question 29

How to determine if a taking is constitutional analysis

Answer 29

1. Has there been a taking? – two types of takings:
   
   • Possessory taking - govt. takes or occupies physical property
     
     • Govt. may take private property for private development
   • Regulatory taking - govt. action that adversely affects property value; whether taking occurs depends on extent of economic interference:
     
     • Denial of all economic value – taking
     • Denial of nearly all value - depends on the social goals promoted, diminution in value to the owner, and interference with owner’s investment expectations
2. Is the taking for public use? - taking is for public use if govt. has a reasonable belief the taking will benefit the public (low standard)
   
   • Use will be viewed as benefitting public as long as it is rationally related to some legitimate public purpose
3. Is just compensation paid? - measured in terms of loss to owner
   
   • Measured by fair market value of property at time of taking

Question 30

A fundamental right is affected, when do you invoke 5thA (Substantive due process) and when 14thA (Equal Protection)?

Answer 30

Fundamental rights are treated under both 5th Amend. substantive DP and 14th Amend. EP

· Substantive DP - applies if a right is denied to all

· EP - applies if a right is denied to some but not other

Question 31

Some examples of Fundamental Rights

Answer 31

1. Right to vote
2. Right to travel
3. Right to privacy
   
   1. Fundamental rights that call for strict scrutiny:
      
      1. Marry
      2. Procreate
      3. Family and Children
      4. Contraceptives
   2. Fundamental rights that DO NOT call for strict scrutiny:
      
      1. Abortion (Rational basis)
      2. Homo sex (not tested)
      3. Refuse medical treatement (not tested)

Question 32

Constitutional consideration on abortion: Viability

Answer 32

Analysis - turns on viability of the fetus

• Viability= when a fetus can survive outside the womb
• Pre-viability - regulation must not unduly burden abortion

>> States may not prohibit abortion, but may regulate as long as it does not create an undue burden

>> Undue burden- spousal notification

>> No undue burden- 24-hr waiting period; partial-birth abortion bans; parental consent requirements (see below)

• Post-viability - prohibition on abortion is allowed unless medically necessary to protect the mother’s health

Question 33

Constitutional consideration on abortion: Parental notice / consent for minors and Subsidies

Answer 33

Parental notice/consent laws for minors - no undue burden if the law creates an alternative procedure whereby a minor can obtain an abortion by going before a judge

• The judge can approve the abortion by finding either:

1. Abortion is in the minor’s best interests, or
2. The minor is mature enough to decide for herself

Subsidies - govt. has no duty to subsidize abortions or provide abortions in public hospitals

Question 34

Try to remember this examples to a taking:

Answer 34

1. A government regulation results in the denial of all economic value of private property on a temporary basis.
   
   • the denial is not a taking per se when it is not a permanent deprivation of property.
2. The government responds to an emergency situation, and private property is destroyed as a result.
3. A government zoning regulation results in a decrease to the economic value of private property.
   
   • As long as a potential economic use for the property remains in spite of the regulation, the mere decrease in the value of the property does not amount to a taking.

Question 35

How courts analyze whether the compensation was fair on a taking?

Answer 35

Courts look for “reasonable value” at the time that the taking itself has occurred.

The measure of damages required for just compensation is the loss the owner incurs, rather than the gain the taker receives.