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
EXCEPTIONS:
1) 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) Commerce Cl: Can can apply Const. norms to private conduct if it affects interstate 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 significant state action); needs to be CONTINUOUS involvement
STATE ACTION
(i) racially restrictive cov’ts
(ii) govt leases premises to a restaurant that racially discriminates
(iii) state provided free books to private schools that racially discriminate
(iv) private entity regulates interscholastic sports w/in a state
NO STATE ACTION
(i) NCAA orders suspension of a basketball coach at a state university
(ii) private school that is over 99% funded by the govt fires a teacher b/c of her speech
(iii) private club w/ a liquor license 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
When: age; anytime there is no strict/ intermediate scrutiny
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
When: suspicious classes - sex
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
When: race; religion; nat’l origin; most alienage classes; fundamental rights - travel/ vote
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
If there HAS been a deprivation (of liberty/ property), how can we tell if in-place procedures are sufficient?
1) 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) Gov’ts interest in EFFICIENCY and SAVING $$
EXAMPLES w/ adequate process:
(i) Welfare benefits (notice; hearing)
(ii) Termination of parental custody rights (notice; hearing)
(iii) Non-emergency institutionalization (notice; hearing)
(iv) Social Security disability benefits termination (post-termination hearing)
(v) Reputational harm (NOT A LOSS of liberty)
(vi) Prisoners liberty interest (OFTEN not a loss of liberty)
(vii) Punitive damage awards (jury instruction; judicial review)
(viii) Non-citizen held as enemy combatant (ability to challenge continued detention)
(ix) US citizens facing charges abroad by US military (Habeas Corpus)
(x) Actual bias in a ct proceeding (recusal by the judge is necessary)
(xi) Firing gov’t employee (pretermination hearing)
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
(iii) 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
FIRST: has there been a “TAKING”?
Possessory 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 challenge 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?
No STATE shall impair the obligations of K
Scope: STATE/LOCAL interference w/ EXISTING Ks (never applies to fed gov’t)
Existing PRIVATE Ks = INTERMEDIATE SCRUTINY
If substantial interference = NARROWLY tailored to meet an important gov’t interest
Existing GOV’T Ks = STRICT SCRUTINY
When can the gov’t adopt ex post facto laws?
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?
PRIVACY
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 relationship
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.
