Individual Liberties Flashcards
What is 13A?
13A prohibits slavery. Under 13A, Congress can prohibit racially discriminatory action by anyone.
What does the Bill of Rights limit?
The Bill of Rights limits federal power.
What is 14A?
14A prevents states from depriving any person of life, liberty, or property without due process and equal protection of the law.
What is 15A?
15A prevents the federal government and the states from denying a person the right to vote on the basis of race.
Do 14A and 15A regulate purely private conduct?
No, but the 13A or the Commerce Clause may.
What is a valid Congressional law under 14A?
Congress must point to a history of state violation of an established right and adopt legislation that is congruent and proportional to solving the violation.
What is state action for the purpose of the Constitution?
State action is action by the government, government officers, anyone who performs exclusively public functions (e.g. prisons), or anyone with significant state involvement (e.g. judicially enforcing a racially restrictive covenant).
What is rational basis?
Under rational basis, a law is upheld if it is rationally related to a legitimate government purpose.
Who has the burden of proof under rational basis?
The person challenging the law has the burden of proof.
When is rational basis used?
Rational basis is used when classifications are not suspect or quasi-suspect and do not burden a fundamental right.
What is intermediate scrutiny?
Under intermediate scrutiny, a law will be upheld if it is substantially related to an important government purpose.
When is intermediate scrutiny used?
Intermediate scrutiny is used when a quasi-suspect classification is used.
What is strict scrutiny?
Under strict scrutiny, a law will be upheld if it is necessary to achieve a compelling government purpose.
Who has the burden of proof in intermediate scrutiny?
The law is unclear, probably the government.
Who has the burden of proof in strict scrutiny?
The government has the burden of proof.
When is strict scrutiny used?
Strict scrutiny is used when classifications are based on a suspect characteristic or when a fundamental right is burdened.
What are suspect classifications?
Race, alienage (at state and local levels), national origin
What are quasi-suspect classifications?
Gender, legitimacy
What are common classifications that are not suspect or quasi-suspect?
Age, disability, poverty
What are the requirements of procedural due process?
The requirements of procedural due process are
(1) notice
(2) an opportunity to be heard
(3) a neutral decisionmaker
What notice is required to satisfy due process?
The notice must be reasonably calculated to inform the person of the deprivation.
How is the type and extent of a deprivation hearing determined?
The type and extent of the hearing are calculated by balancing
(1) the importance of the interest to the individual, and
(2) the value of specific procedural safeguards to that interest, against
(3) the government interest in fiscal and administrative efficiency
Must a claimant be given a pre-deprivation hearing?
Yes, unless it would be impracticable.
What types of deprivations allow subsequent hearings?
Disability benefits, public employment, civil forfeiture of personal property, detention of enemy combatants
When is a decisionmaker neutral?
A decisionmaker is neutral if she does not have any actual bias or a serious risk of actual bias.
May procedural due process rights be waived?
Yes, procedural due process rights may be waived if the waiver is knowing and voluntary.
When must governmental fees be waived?
Governmental fees must be waived for indigent people when the fee would deny a fundamental right.
Which provision of the Constitution governs due process?
5A governs due process for the federal government.
14A incorporates due process to state and local governments
What are fundamental rights?
All 1A rights
Voting
Interstate travel
Privacy-related rights
When is an unenumerated right fundamental?
An unenumerated right is fundamental when it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty.
What is the difference between substantive due process and equal protection?
Substantive due process applies when a law limits the rights of all persons to engage in some activity.
Equal protection applies when a law treats a person or class of persons differently than others.
How many people must be in a class before equal protection is triggered?
A single person who is treated arbitrarily can be a class, except when the claim is made by an at-will employee.
Is there a fundamental right to an abortion?
No.
Are bans on interracial marriage and same-sex marriage constitutional?
No, marriage is a fundamental right and these bans fail strict scrutiny.
May the government limit a prisoner’s right to marry?
Yes, a statute may restrict a prisoner’s right to marry if the statute is reasonably related to a legitimate penological interest.
May a state set an age requirement for marriage?
Yes, age regulations that don’t substantially burden the right to marry are subject to rational basis review.
Is there a fundamental right to procreation?
Yes.
Can a state prohibit the distribution of contraceptives to minors?
No.
What are the fundamental rights of parents?
The rights of parents include the companionship, care, custody, and upbringing of children.
What is the right to keep extended family together?
A family has a fundamental right to live together. The right does not extend to unrelated people.
Does the right to privacy extend to reading obscene material?
Unless the material is child pornography, a person is free to read obscene material in his home.
Is there a right to privacy in the accumulation of names and addresses of people who have been prescribed dangerous drugs?
No.
What is the fundamental right of interstate travel?
An individual has a fundamental right
(1) to travel from state to state and
(2) to be treated equally after moving to a new state
Does the right to interstate travel extend to international travel?
No, but international travel is protected from arbitrary federal interference by 5A.
Are residency requirements to vote valid?
A statute requiring 30 days residency was upheld. A statute requiring 1 year residency was invalidated.
What restrictions on the right to vote are permissible?
Restrictions on age, residence and citizenship are acceptable. Anything else is subject to strict scrutiny.
May the right to vote or hold office be conditioned on owning property?
No, except for special purpose elections.
Can Congress override state residency requirements in elections?
Yes, in federal elections
May a state require voter identification to vote?
Yes.
Are poll taxes permissible?
No, poll taxes are unconstitutional
Can states require early registration to vote in primaries?
Yes.
Can states prohibit states from opening their primaries up to voting by anyone?
No.
When does the one person, one vote principle apply?
The one person, one vote principle applies when any level of government decides to select representatives by a popular election from individual districts.
What is one person, one vote in state and local elections?
In state and local elections, the populations of voting districts must be substantially equal.
How much variance in population is allowed in voting districts in state and local elections?
Less than 10% is presumptively valid.
How much variance in population is allowed in voting districts in federal elections?
States must use almost mathematical equality to create congressional districts.
Is population for voting districts determined by the number of voters in a district?
States do not have to count only people eligible to vote. They can use total population.
Must one person, one vote apportionment be used in at large elections or where officials are appointed?
No.
Is racial gerrymandering permitted?
Race cannot be the predominant factor in drawing districts.
Is political gerrymandering subject to judicial review?
No. Political gerrymandering is considered a nonjusticiable political question.
Can states use independent commissions to draw congressional districts?
Yes.
May a state charge a candidate a fee to run for office?
A state can’t impose a fee that would make it impossible for an indigent person to run for office.
May a state place restrictions on the ability to run for office?
A state regulation must be reasonable, nondiscriminatory means to promote important state issues. Also, a state can require a candidate show reasonable support.
Can a state allocate more funds to the major parties than minor parties?
Yes.
What is 2A?
2A protects the right of individuals to bear arms for self defense at home and in public,
May a state require gun permitting?
Yes, as long as the criteria for permits are clear. A law that gives an official discretion to issue a permit is unconstitutional.
What is the 2A standard of review?
The government must justify a regulation by showing that it is consistent with the country’s historical tradition of firearm regulation.
What is the right to fair notice?
A regulation that fails to give fair notice violates due process,
Is there a right to intimate sexual contact?
The state has no legitimate interest in criminalizing private, intimate sexual conduct that is not commercial in nature.
Is there a right to refuse medical treatment?
A mentally competent adult can refuse medical treatment as part of that person’s liberty under 5A and 14A.
Is there a right to physician-assisted suicide?
No.
Is there a right to refuse vaccinations?
No. A state can compel vaccinations against contagious diseases,
