Individual Liberties Flashcards
Bill of Rights
First 10 amendments. Limit FEDERAL power. But, 14th amendment applies almost all provisions of the BoR to the states
Exceptions: (1) Fifth Amendment prohibition of criminal trials w/o grand jury indictment and (2) Seventh Amendment’s right to jury trial in civil cases
Thirteenth Amendment
Prohibits slavery and involuntary servitude.
Enabling Clause – Congress can regulate laws to prohibit private discrimination by ANYONE, including private citizens
Commerce clause and individual liberties
Under CC, Congress may prohibit PRIVATE racial discrimination in activities that might have a substantial effect on interstate commerce
State Action Requirement
“state action” must usually be shown to show a constitutional violation
Exceptions to State Action Requirement
Exclusive public function: Constitution will apply to a private entity if it is performing a task traditionally, exclusively done by the government (running a town, conducting elections, but utility services are not traditionally public services)
Significant state Involvement (entanglement): When government affirmatively authorizes, encourages, or facilitates unconstitutional activity. Must be “significantly involved.” mere acquiescence is not enough
Ex: enforcing racially restrictive covenants, leasing premises to a private entity that racially discriminates (symbiotic relationship), providing books to schools that racially discriminate
Ex of not: granting monopoly to utility, regulating an industry, granting a corp its name and charter, granting liquor license to a racist private club, regulating state sports
Rational Basis Test
Challenger must show that the law is not rationally related to a legitimate government purpose
Intermediate Scrutiny
Government must show that the law is substantially related to an important government interest
Strict Scrutiny
Government must show that the law is necessary to achieve a compelling government interest. Also requires that it is the least restrictive alternative and narrowly tailored.
Procedural Due Process
A fair process (notice and a hearing) is required for a government agency to individually take a person’s life, liberty, or property.
Government negligence is insufficient for violating due process. Generally must have INTENTIONAL government action or at least recklessness
Liberty
More than freedom from bodily restraints.
Deprivation of liberty occurs if a person (1) loses significant freedom of action; or (2) is denied a freedom provided by the Constitution or a statute
Property
More than personal property and realty. Something the person has a legitimate claim of entitlement to.
Includes public school attendance, welfare benefits, and government employment
Type of Procedure Balancing Test
(1) the importance of the interest to the individual
(2) ability and value of procedural safeguards to protect that interest, and
(3) the government interest in fiscal and administrative efficiency
Notice and chance to respond before termination are usually required.
Fair procedures and an unbiased decisionmaker will ALWAYS be required
Welfare benefits termination
notice and hearing before
Mental institution commitment
adults require prior notice and hearing (except for emergency) and children require prior screening by a neutral fact finder
Disability benefits
prior notice and opportunity to respond, and subsequent hearing
Public Employment (for cause termination)
prior notice and opportunity to respond, and subsequent evidentiary hearing
Public education (suspension or expulsion)
prior notice and opportunity to respond. NO HEARING REQUIRED
Driver’s License Suspension
Prior evidentiary hearing
Exception: breathalyzer test suspension statutes
Termination of custody rights
prior notice and prior hearing
Civil forfeitures of property
Real property: prior notice and hearing
Personal property: subsequent notice and hearing
Punitive damages
instructions to jury and judicial review for reasonableness
American Citizen held as an enemy
subsequent notice and a meaningful opportunity to contest the factual basis for detention before a neutral factfinder
The Takings Clause
Under Fifth Amendment, private property may not be taken for public use without just compensation
“Public use”: must have a reasonable belief that its action will benefit the public
Possessory Taking
Government confiscation or physical occupation of property (any size at all). Almost certainly will be a total taking.
Regulatory taking
Government regulation that leaves no reasonable economically viable use of the property is a TOTAL taking
Temporary regulatory taking – Court will weigh all circumstances to determine whether fairness and justice require just compensation. If reasonable, not a taking.
Partial Taking – Decreasing Economic Value – regulations that merely decrease value of land or prohibit beneficial use do not amount to a taking if they leave an economically viable use. Balancing test of (1) social goals sought to be promoted; (2) diminution in value of the owner; and (3) whether the regulation substantially interferes with DISTINCT, INVESTMENT BACKED EXPECTATIONS of the owner
Just Compensation
If amounts to a taking, government must either:
(1) pay the property owner just compensation for the property; or
(2) terminate the regulation and pay the owner for damages that occurred while the regulation was in effect
Just compensation measured as FMV of property at the TIME of the taking. Based on loss to owner. Increases since the taking are not considered
Contracts Clause
No state shall impair the obligation of contracts
Applies only to state or local interference with existing contracts. DOES NOT APPLY TO FEDERAL GOVERNMENT
Intermediate scrutiny applied: does the legislation substantially impair a party’s rights under an existing K? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate gvt interest?
If interferes with a GOVERNMENT K, must meet strict scrutiny
Ex Post Facto Laws
State or federal gvt may not pass a law that retroactively alters criminal offenses or punishments to punish conduct that was lawful when it was done, increase punishment for a crime after it was committed, or reduce evidence required to convict)
Applies only to CRIMINAL cases
Privacy Rights invoking SS (fundamental Rights)
Right to privacy, which includes: the right to MARRY, right to PROCREATE, right to CUSTODY OF ONE’S CHILDREN, right to KEEP THE FAMILY TOGETHER, right to CONTROL UPBRINGING OF ONE’S CHILDREN, right to USE CONTRACEPTIVES, right to ABORTION, right to PRIVATE HOMOSEXUAL ACTIVITY, right to REFUSE MEDICAL TREATMENT
Right to Abortion (Fundamental Right)
Prior to viability, state smay not prohibit abortions, but may regulate so long as they do not create an undue burden on the ability to obtain abortions
Ex: 24 hr waiting period, performance by licensed physicians, prohibition of partial birth abortions all not undue burdens
After viability, states MAY prohibit abortions unless NECESSARY to protect woman’s life or health
No gvt duty to subsidize or provide abortions
Spousal consent and notification laws are unconstitutional as undue burden
Right to Vote (Fundamental Right)
Laws that deny citizens right to vote must meet strict scrutiny
One person one vote must be met for ALL state and local elections
Congressional Elections: states must use almost exact mathematical equality
State and Local elections: variance in the # of persons included within districts must not be more than a few percentage points.
Exception: no apportoinment requirement for “at large” elections
Gerrymandering
Race cannot be the predominant factor in drawing boundaries of voting districts unless pass SS
Fundamental Rights
If denied to everyone, SUBSTANTIVE DUE PROCESS issue. If denied to some individuals, EQUAL PROTECTION issue
Strict Scrutiny applied either way if violated
Obscene reading material
right to privacy includes freedom to read obscene material in one’s home, except for child pornography
still no right to sell, purchase, or transport though
Right to Travel
Right to migrate from state to state and be treated equally moving into a new state
International travel is NOT a fundamental right. Thus RB is applied
Residency Requirements
one year residency to receive full welfare INVALID
one year residency to receive state subsidized medical care INVALID
one year residency to vote in state INVALID
30 day residency to vote in state VALID
one year residency to get divorced VALID
Not Fundamental Rights and thus RB applied
Right to international travel, right to practice a trade or profession, right to physician assisted death, right to education
Substantive Due Process
a law that limits liberty of ALL persons to engage in some activity will trigger substantive due process
DP clause of 5th amendment applies to fed gvt. due process of 14th amendment applies to state and local gvts. Same tests for both.
Equal Protection
Law treats a person or class of persons differently, it is an equal protection problem
Fundamental rights or suspect class – Strict Scrutiny
Quasi suspect classifications – Intermediate Scrutiny
Everything else – Rational Basis
Suspect Class
race, national origin, alienage
Quasi-suspect classification
gender and legitimacy
Not suspect or quasi-suspect (RB)
age, disability, poverty, sexual orientation
Only discriminatory impact if facially neutral
Race classifications
If facially neutral, must show DISCRIMINATORY INTENT and DISCRIMINATORY IMPACT. If neither present, then RB is used.
Ex: school segregation violates EP, but if racially neutral zoning, no violation. Mere imbalance won’t be enough to violate EP.
NOTE: laws that FAVOR racial or ethnic minorities is subject to same SS standard is discrimination
Ex: remedying past discrimination is fine if persistent and readily identifiable.
Alienage Classifications
Federal alienage classifications are NOT subject to strict scrutiny bc of Congress plenary powers over aliens. Must be not arbitrary and unreasonable
State laws are subject to SS
Exception: Alien participation in state government (voting, jury service, elective office, police officer, teacher)
UNDOCUMENTED aliens are not suspect class and subje tot just RB review (except still righ tto public education)
