Individual Liberties Flashcards
What is the State Action Doctrine?
Represents principle that the Const. applies ONLY to gov’t (“state”) action and NOT private conduct, UNLESS Congress is regulating private behavior p/t… 1) the 13th Am (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad pwrs to adopt laws to enforce this prvn NOTE: only slavery violates the 13th Am DIRECTLY; private discrimination can violate LAWS passed p/t the 13th Am 2) the Commerce Cl: Can can apply Const. norms to private conduct if it affects interestate commerce (e.g. CRA of 1964) NOTE: Congress CANNOT use §5 of the 14th Am to regulate PRIVATE behavior; it can only regulate state/local gov’ts
What are 2 instances where private conduct can be considered “state action”?
1) Public Function exception: If a private entity is performing a task TRADITIONALLY, EXCLUSIVELY done by the gov’t (e.g. a company town ran by a private operator; running elections) 2) Entanglement exception: The Const. applies if the gov’t affirmatively (i) authorizes; (ii) encourages; OR (iii) facilitatesunconst. activity; NOTE: there needs to be SIGNIFICANT involvement (e.g. a ONE time gift from the gov’t is NOT signficiant state action); needs to be CONTINUOUS involvement VERY inconsistent doctrine, so KEY e.gs = cts cannot enforce racially restrictive cov’ts there IS state action when the govt leases premises to a restaurant that racially discriminates there IS state action when a state provided free books to private schools that racially discriminate there ISstate action when a private entity regulates interscholastic sports w/in a state there is NO state action when the NCAA orders suspension of a basketball coach at a state university there is NO state action when a private school that is over 99% funded by the govt fires a teacher b/c of her speech there is NO state action when a private club w/ a liquor license from the state racially discriminates
Which BOR prvns are NOT “incorporated” (i.e. they DON’T apply to the states)?
1) 3d Am right NOT to have soldiers quartered in a persons home 2) 5th Am right to a grand jury indictment in CRIMINAL cases 3) 7th Am right to jury trial in CIVIL cases 4) 8th Am right against excessive fines ALL OTHER prvns of the BOR are incorporated and apply to the states via the 14th Am.
What are the 3 levels of scrutiny re: individual liberties/equal protection?
1) Rational basis: a law is upheld IF it is RATIONALLY related to a LEGITIMATE gov’t purpose Burden of proof = on the π 2) Intermediate scrutiny: a law is upheld IF it is SUBSTANTIALLY related to an IMPORTANT gov’t purpose Burden of proof = on the gov’t 3) Strict scrutiny: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose Burden of proof = on the gov’t
What is procedural due process?
The procedures that a gov’t MUST FOLLOW in order to take away someone’s life, liberty or property
When does a “deprivation” liberty or property occur?
Deprivation of liberty: occurs if there is the loss of a significant freedom provided by the Const or a statute Deprivation of property: occurs if a person has an ENTITLEMENT (a reasonable expectation to the continued receipt of a benefit) and that entitlement is not fulfilled
Is gov’t negligence sufficient to deprive a person of due process?
NO! Generally, there must be INTENTIONAL gov’t action; or at least RECKLESS ACTION for liability to exist NOTE: in emergency situations, the gov’t is liable under DP ONLY IF the conduct “shocks the conscience”
Is the gov’t FAILURE to protect people from private harm a denial of due process?
NO! Generally, the gov’ts failure to protect ppl from PRIVATELY inflicted harms does NOT deny due process
(Only) If there HAS been a deprivation (of liberty/property), how can we tell if in-place procedures are sufficient?
3-part balancing test: 1) The IMPORTANCE of the interest to the individual Greater importance = more procedural protection needed 2) The ability of ADDITIONAL procedures to increase the accuracy of the fact-finding Will more procedures reduce erroneous deprivation? 3) The gov’ts interest in EFFICENCY and SAVING $$ EXAMPLES w/ adequate process Welfare benefits (notice; hearing) Termination of parental custody rights (notice; hearing) Non-emergency institutionalization (notice; hearing) Social Security disability benefits termination (post-termination hearing) Reptuational harm (NOT A LOSS of liberty) Prisoners liberty interest (OFTEN not a loss of liberty) Punitive damage awards (jury instruction; judicial review) Non-citizen held as enemy combatant (ability to challenge continued detention) US citizens facing charges abroad by US military (Habeas Corpus) Actual bias in a ct proceeding (recusal by the judge is necessary)
What is substantive due process?
Asks whether the gov’t has an adequate reason for taking away a person’s life, liberty, or property NOW, analysis is used to protect (i) ECONOMIC liberties;(ii) safeguarding PROPERTY; AND privacy (fundamental rights)
What is the basis for evaluating laws that affect economic rights (p/t substantive due process)?
Only a RATIONAL BASIS test is used for laws affecting economic rights
What is the standard req’d p/t the Takings Cl of the 5th Am?
The gov’t may take PRIVATE property for PUBLIC use but ONLY IF it provides JUST COMPENSATION or terminates the regulation Ask… FIRST: has there been a “TAKING”? Posessory taking = gov’t confiscation OR physical occupation of property Regulatory taking = gov’t regulation is a taking IF it leaves NO REASONABLE economically viable use of the property NOTE: Gov’t conditions on the development of property (exactions) must be justified by a benefit ROUGHLY proportional to the burden proposed A property owner may bring a takings challenege to regulations that ALREADY EXISTED at the time the property was acquired Temporarily denying an owner use of property is NOT a taking so long as the gov’ts action was reasonable SECOND: is it for PUBLIC USE? It’s a “public use” SO LONG AS the gov’t acts out of a reasonable belief that the taking will benefit the public THIRD: is JUST COMPENSATION paid? Measured in terms of loss to owner in reasonable MKT value terms (NOTE: the GAIN to the gov’t is IRRELEVANT)
What is the Ks Cl of Art. I of the Const?
It says: no STATE shall impair the obligations of K Only applies to STATE/LOCAL interference w/ EXISTING Ks (never applies to fed gov’t) STATE/LOCAL gov’ts CAN interefere w/ existing PRIVATE Ks IF INTERMEDIATE SCRUTINY is met If the interference is substantial, then the law must be NARROWLY tailored to meet an important gov’t interest STATE/LOCAL gov’ts CAN interefere w/ existing GOV’T Ks IF STRICT SCRUTINY is met
When can the gov’t adopt ex post facto laws?
Ex post facto law = one that punishes conduct that was LAWFUL when it was done Gov’t can create ex post facto laws in CIVIL CASES ONLY NEVER in CRIMINAL cases
Which 8 fundamental rights (protected under substantive due process) are subject to strict scutiny?
The right to PRIVACY, specifically… 1) right to marry 2) right to procreate 3) right to custody of one’s child Can only be terminated if st proves a compelling interest like child abuse/neglect NOTE: a state CAN create an irrebuttable presumption that a married woman’s husband is the father of her child 4) right to keep family together Includes extended family BUT NOT students w/ no bio relationsh 5) right to cntrl raising children 6) right to purchase/use contraceptives 7) right to travel from state to state (BUT NOT int’l travel) NOTE: for voting purposes, 50 DAYS is the MAXIMUM allowable durational req 8) right to vote “One-person, one-vote” must be met for all state/local elections e.g. poll taxes are unconst.
