Individual Liberties

Question 1

When does Constitution apply to individual liberties analysis?

Answer 1

Constitution applies only to government actions. Private conduct need not comply, unless entwinement. (private v. state uni). Applies to ALL levels of gov. [“The 14th Am applies only where there is an action by a state or local gov, or private individual who’s behaviors meet the standard of state action.”]

Question 2

When has Congress, by statute, applied Constitutional norms to private conduct?

Answer 2

1. 13th Am can be used to prohibit private race discrimination (only slavery violates 13th, but laws have been adopted under the 13th that prohibit discrimination)
2. Commerce power can be used to apply constitutional norms to private conduct
3. Congress cannot use § 5 of 14th Am to regulate private behavior

Question 3

What are the exceptions where private conduct needs to comply with the Constitution?

Answer 3

1. Public Function Exception

2. Entanglement Exception

Question 4

Public Function Exception

Answer 4

Constitution applies if private entity is performing a task traditionally, exclusively done by the gov. (running a town, or holding and election; but NOT running a utility).

Question 5

Entanglement Exception

Answer 5

a. State Action:
i. If courts enforce racially restrictive covenants….or any lease term that violated Const.
ii. Gov leases premises to a restaurant that racially discriminates
iii. State provides books to schools that racially discriminate
iv. Private entity regulates interscholastic sports w/in a state. If there is “entwinement” there is state action, such as state delegating power to private entity.
b. NO State Action
i. Private school that is over 99% funded by the government fires a teacher bc of speech. Receipt of government money is not enough sufficient to find state action.
ii. NCAA orders the suspension of a basketball coach at state school.
iii. Private club w/ liquor license from state = Moose Lodge kept license & racially discriminating.
iv. Granting monopoly to utility or heavy industry regulation.

Question 6

Application of Bill of Rights

Answer 6

A. BOR applies directly only to the federal government.
B. BOR applied to state and local gov through incorporation into DPC of 14th Am. EXCEPT (these rights have never been incorporated beyond federal gov):
1. The 3rd Am right to not have a soldier quartered in a person’s home.
2. The 5th Am right to grand jury indictment in criminal cases
3. The 7th Am right to jury trial in civil cases (state could abolish)
4. The 8th Am right again excessive fines

Question 7

Rational Basis Test

Answer 7

Rationally related + legitimate, conceivable purpose (need not be actual purpose).
BOP on challenger. Great deference to government.

Question 8

Intermediate Scrutiny

Answer 8

Substantially related + important actual purpose.

BOP on gov. Government’s interest must be important, and achieved in a very good way (but not best).

Question 9

Strict Scrutiny

Answer 9

Necessary + compelling actual purpose.

BOP on gov. Must be the least restrictive alternative (must demonstrate in order to show “necessary”)

Question 10

Procedural Due Process

Answer 10

Refers to procedures gov’t must follow when it takes away person’s life, liberty, property (what kind of notice/hearing?)

Question 11

Substantive Due Process

Answer 11

Whether gov’t has an adequate reason to take away a persons’ life, liberty, property (what was the justification to take away?)

Question 12

Equal Protection

Answer 12

Whether government’s differences in the treatment of people are adequately justified. (was P treated unfairly/differently from others similarly situated)

Question 13

Deprivation of Liberty (Def.)

Answer 13

Loss of significant freedom provided by Constitution or statute (written law creates liberty interests; ie constitutional rights, FR). Examples:

a. Except in an emergency, before an adult can be institutionalized, there must be notice + hearing.
b. When parent institutionalizes child, there only has to me a screening by a neutral fact finder.
c. Harm to reputation, by itself, is not a loss of liberty (wrongly posting pic as shoplifter not violation)
d. Prisoners rarely have a liberty interest. Usually lose when suing about loss of liberty.

Question 14

Deprivation of Property

Answer 14

Occurs if there is an entitlement and that is not fulfilled. (Distinction btwn rights and privileges has been abolished). “Mere expectation is not entitlement.”
a. Entitlement exists if there is a reasonable expectation to continue receipt of a benefit.

Question 15

Deprivation of Due Process

Answer 15

Government negligence is not sufficient for a deprivation of due process. Generally, requires intentional government action or at least reckless action for liability to exist. But, in emergency situation (high speed chase), gov is liable under due process only if conduct “shocks the conscience” (intent to cause harm)
Generally, government’s failure to protect people from privately inflicted harm does not deny due process.
Gov’t has not duty to protect people from privately inflicted harm. Gov must create danger!

Question 16

What procedures need are required for procedural due process?

Answer 16

Assuming there has been deprivation of life, liberty (significant freedom secured by law), or property (an entitlement to a continued receipt of a benefit), ask what procedures apply?

1. Test = BALANCE
   a. The importance of the interest to the individual
   b. The ability of additional procedures to increase the accuracy of fact-finding (what would more procedures do to reduce risk?)
   c. The government’s interest (usually efficiency/save money)

Question 17

What test is used for laws affecting economic rights?

Answer 17

Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.

Question 18

Takings Clause

Answer 18

Gov’t may take private property for public use if it provides just compensation.

Question 19

Takings Analysis

Answer 19

Step 1: Is there a taking? If no taking (even if reg prohibits most beneficial use), no need to pay.
a. Possessory taking: gov confiscation or physical occupation (however small) of property = taking.
b. Regulatory taking: gov regulation that leaves no reasonable economically viable use of property = T.
Step 2: Is it for “public use”? If not public, gov must return property. SC says taking is for public use, so long as gov acts out of reasonable belief that taking will benefit the public. Virtually all takings qualify.
Step 3: Is just compensation paid?
a. Gov must pay owner FMV of the property in hands of owner (gain to taker/gov is irrelevant).

Question 20

Contracts Clause

Answer 20

No state shall impair the obligations of contracts.

1. Never applies to federal government (apply RB). Applies only to states or local interference w/ existing K.
2. Private K = IS: State/local interference w/ private K is subject to intermediate scrutiny (slightly tweaked)
   a. Does the legislation impair a party’s rights under an existing K?
   b. If so, law must be reasonably and narrowly tailored means of promoting important public interest.
3. Public K = SS: State or local interference w/ gov K must meet strict scrutiny
4. The ex post facto clause does not apply in civil cases.

Question 21

Substantive Due Process

Answer 21

(tests the reasonableness of a law, as applied to ALL) RP applies unless fundamental right (SS). DPC of 14th applies to state/local actions; DPC of 5th applies to fed. Same standards.

Question 22

Fundamental Privacy Rights

Answer 22

1. Right to marry (man and woman) and divorce.
2. Right to procreate
3. Right to custody of one’s child (state may create irrebuttable presumption that W’s husband is father)
4. Right to keep family together (can’t cap limit for rental occupants that separate family)
5. Right to control upbringing of one’s children (violates DP to order g-ma visitation over parent objection)
6. Right to purchase and use contraceptives
7. Right to engage in a private consensual homosexual activity
8. Right to abortion (only right not subject to SS)
9. Right to refuse medical treatment

Question 23

Abortion Rights

Answer 23

Right to abortion (only right not subject to SS)

a. Prior to viability: states may not prohibit abortion, but may regulate abortions so long as they do not create an undue burden on the right (ability to obtain abortions). [UNDUE BURDEN TEST]
i. Not undue burden = requirement for 24 hr waiting period; abortions must be performed by licensed physicians; or prohibition of “partial birth abortions.”
b. Gov has no duty to “subsidize” abortions or provide abortions in public hospitals.
c. Spousal consent and notification laws are unconstitutional.
d. Parental notice and consent laws for unmarried minors. State may require parental notice and/or consent for unmarried minor’s abortion so long as it creates an alternative procedure to obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature enough to decide for herself.

Question 24

Right to refuse medical treatment

Answer 24

a. Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
b. State may require clear & convincing evid that person wanted treatment terminated before it ended.
c. State may prevent family members from terminating treatment for another.
10. NO right to physician-assisted death OR education. Subject to RB.

Question 25

Right to Bear Arms (2nd Am)

Answer 25

(applies to state and local gov)
1. No infringement on right to bear arms. Only case (2008) to limit this right held the 2nd Am is not limited to using guns for militia services. OK to have them for sake of security. Level of scrutiny has not been identified. Not an absolute right, gov can regulate where guns are allowed, or who can have them (felons)

Question 26

Right to Travel [Interstate/Domestically]

Answer 26

(protected under P/I of 14th and EPC)

1. Laws that prevent people from moving into a state must meet strict scrutiny
2. Durational residency requirements must meet strict scrutiny (50 days max; 1 year usually too much)
   a. Otherwise, residency requirements and restrictions on travel need only meet the rational basis test.

Question 27

Right to Vote

Answer 27

1. Laws that deny some citizens the right to vote must meet SS, but regulations of the electoral process to prevent fraud only need balance interests (filing fee ok unless indigent; disclosure of personal funds OK).
2. One-person – on-vote must be met for all state and local elections
3. At-large elections are constitutional unless there is proof of discriminatory purpose
4. Use of race in drawing election district lines must meet SS.
5. Counting uncounted votes w/o standards in a presidential election violates equal protection.

Question 28

Equal Protection Clause

Answer 28

(law treats similar people in a dissimilar manner) Other than 4 classes below, use RB. EPC of 14th applies only to state/local actions; EP is applied to fed gov by DPC of 5th Am. Same standards.

Question 29

Equal Protection Analysis

Answer 29

STEP 1: WHAT IS THE CLASSIFICATION? (2 ways to determine)
STEP 2: WHAT IS THE LEVEL OF SCRUTINY?
STEP 3: DOES THIS LAW MEET THE LEVEL OF SCRUTINY?

Question 30

Classification for Equal Protection Analysis

Answer 30

a) Classification is on the face of the law, or
b) If law is facially neutral, proving suspect class requires demonstrating both discriminatory impact + intent (shown
by application or motive).
c) Does law impinge on a fundamental right (free speech, privacy, etc.)

Question 31

When is strict scrutiny applied in Equal Protection Analysis?

Answer 31

Law must be necessary to achieve a compelling government purpose.
•	Race
•	National origin
•	Alienage – generally
•	Travel (but not foreign)
•	Voting

Question 32

When is intermediate scrutiny applied in Equal Protection Analysis?

Answer 32

Law must be substantially related to an important government purpose.
• Gender
• Illegitimacy
• Undocumented alien children

Question 33

When is Rational Basis test applied in Equal Protection Analysis?

Answer 33

Law must be rationally related to a legitimate government interest.
• Congressional regulation of aliens, or state law concerning self-gov and democratic process.
• All others!
Age; Disability; Wealth, Economic regulations; Residency; Sexual orientation discrimination

Question 34

Race & National Origin Classification

Answer 34

STRICT SCRUTINY.

1. How should racial classifications benefitting minorities be treated? “Racial Affirmative Action”
   a. Strict scrutiny still applies.
   b. Numerical set-asides require clear proof of past discrimination (SC hostile to quotas)
   c. Educational institutions may use race as one factor in admissions decisions to help minorities.

Question 35

Gender Classification

Answer 35

INTERMEDIATE SCRUTINY

1. Affirmative Action: How should gender classifications benefitting women be treated?
   a. Gender classification benefitting women that are based on role stereotypes are not allowed.
   b. Gender classifications designed to remedy past discrimination and differences in opportunity OK. No gender based benefits, alimony, schools, drinking age, but male draft and rape laws OK.

Question 36

Alienage Classifications

Answer 36

STRICT SCRUTINY, GENERALLY
1. Only RB test is used for Congressional discrimination of aliens, or in limited scope for state laws concerning self-gov (voting, jury, being a police officer, elem/hs teacher, or probation officer).

Question 37

DISCRIMINATION AGAINST NON-MARITAL CHILDREN

Answer 37

INTERMEDIATE SCRUTINY

1. Laws that deny a benefit to all non-marital children, but grant it to all marital children are UNconstitutional.

Question 38

State Action

Answer 38

Always analyze before raising individual rights- government action, public function or entanglement