Individual Liberties Flashcards
What is the State Action Doctrine?
Represents principle that the Constitution applies ONLY to government (“state”) action and NOT private conduct,
UNLESS Congress is regulating private behavior pursuant to…
1) 13A (prohibiting slavery and involuntary servitude): Congress can prohibit private race discrimination and has broad powers to adopt laws to enforce this provision
** NOTE: only slavery violates the 13A DIRECTLY; private discrimination can violate LAWS passed pursuant to the 13A
2) the Commerce Clause: can can apply Constitutional norms to private conduct if it affects interestate commerce (e.g. CRA of 1964)
** NOTE: Congress CANNOT use §5 of the 14A to regulate PRIVATE behavior; it can only regulate state/local governments
When can private conduct can be considered state action?
1) Public Function exception: If a private entity is performing a task TRADITIONALLY, EXCLUSIVELY done by the government (e.g. a company town ran by a private operator; running elections)
2) Entanglement exception: when the government affirmatively
(i) authorizes;
(ii) encourages; OR
(iii) facilitatesunconstitutional activity;
** NOTE: there needs to be SIGNIFICANT involvement (e.g. a ONE time gift from the government is NOT signficiant state action); needs to be CONTINUOUS involvement
There IS state action when:
- courts enforce racially restrictive covenants - government leases premises to a restaurant that racially discriminates - a state provided free books to private schools that racially discriminate - a private entity regulates interscholastic sports within a state
There is NO state action when:
- the NCAA orders suspension of a basketball coach at a state university - a private school that is over 99% funded by the government fires a teacher because of her speech - a private club with a liquor license from the state racially discriminates
Which Bill of Rights provisions are NOT incorporated (i.e. they DON’T apply to the states)?
1) 3A right NOT to have soldiers quartered in a persons home
2) 5A right to a grand jury indictment in CRIMINAL cases
3) 7A right to jury trial in CIVIL cases
4) 8A right against excessive fines
** ALL OTHER provisions of the Bill of Rights are incorporated and apply to the states via the 14A
What are the 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 government
3) Strict scrutiny: a law is upheld IF it is NECESSARY to achieve a COMPELLING gov’t purpose
Burden of proof = on the government
What is procedural due process?
The procedures that a government 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 fundamental 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 government negligence sufficient to deprive a person of due process?
NO!
Generally, there must be INTENTIONAL or at least RECKLESS government action for liability to exist
NOTE: in emergency situations, the government is liable ONLY IF the conduct “shocks the conscience”
Is the government FAILURE to protect people from private harm a denial of due process?
NO!
Generally, the government’s failure to protect people from PRIVATELY inflicted harms does NOT deny due process
** The government may be liable if it created the harm or the person is in its custody
(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 government’s interest in EFFICENCY and SAVING $$
EXAMPLES with adequate process
- Welfare benefits (notice; hearing) - Termination of parental custody (notice; hearing) - Non-emergency institutionalization (notice; hearing) - Social Security disability termination (post-termination hearing) - Reputational 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 court proceeding (recusal by the judge is necessary)
What is substantive due process?
Asks whether the government 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 (pursuant to substantive due process)?
Only a RATIONAL BASIS test is used for laws affecting economic rights
What is the standard required for the Takings Clause of the 5A?
The government 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”?
Possessory taking = government confiscation OR physical occupation of property
Regulatory taking = government regulation is a taking IF it leaves NO REASONABLE economically viable use of the property
** Government 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 government’s action was reasonable
SECOND: is it for PUBLIC USE?
It’s a “public use” SO LONG AS the government 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 market value terms (NOTE: the GAIN to the government is IRRELEVANT)
What is the Contract Clause of Article I of the Const?
It says: no STATE shall impair the obligations of contract
** Only applies to STATE/LOCAL interference with EXISTING contracts (never applies to fed government)
STATE/LOCAL governments CAN interfere with existing PRIVATE contracts IF INTERMEDIATE SCRUTINY is met If the interference is substantial, then the law must be NARROWLY tailored to meet an important government interest
STATE/LOCAL governments CAN interfere with existing GOVERNMENT contracts IF STRICT SCRUTINY is met
When can the government adopt ex post facto laws?
Ex post facto law = one that punishes conduct that was LAWFUL when it was done
Government can create ex post facto laws in CIVIL CASES ONLY NEVER in CRIMINAL cases
Which 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 (compelling interest)
** 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
** NOTE: Includes extended family BUT NOT people with no biological relationship
5) right to control raising children 6) right to purchase/use contraceptives 7) right to travel domestically (NOT international travel) 8) right to vote
** NOTE: for voting purposes, 50 DAYS is the MAXIMUM allowable durational requirement
** One-person, one-vote must be met for all state/local elections
** Poll taxes/land requirements are unconstitutional
