Individual Liberties

Question 1

Which amendments have not been incorporated to the states through the 14A due process clause?

Answer 1

3A: right to have soldiers quartered in home

5A: right to grand jury indictment

7A: right to jury in civil cases

Question 2

What are examples of state action?

Answer 2

• Easy (state law, state officials acting officially)
• Public function: private party performs functions done by government traditionally and exclusively
• Significant State involvement: state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens

Question 3

What is rational basis?

Answer 3

Rationally related to a legitimate state interest.

Burden: challenger
Presumption: valid

Question 4

What is intermediate scrutiny?

Answer 4

Substantially related to an important state interest

Burden: state
Presumption: none

Question 5

What is strict scrutiny?

Answer 5

Narrowly tailored to a compelling state interest

Burden: state
Presumption: invalid

Question 6

What is procedural due process?

Answer 6

Individual has right to fair process when govt. intentionally deprives her of life, liberty, or property

5A: federal govt.
14A: state and local govt.

Question 7

What is a deprivation of liberty?

Answer 7

• loses physical freedom or denied freedom protected by constitutional rights
• NOT mere harm to reputation

Question 8

What is deprivation of property?

Answer 8

• govt. entitlement to which an individual has a reasonable expectation of continued receipt
• real and personal, tangible and intangible

Ex: welfare benefits, public education, govt. licenses, durational employment, continued attendance at public school

Question 9

If deprived, what process is due?

Answer 9

• notice
• opportunity to be heard (pre-deprivation preferred; ex.: welfare benefits)
• neutral decision-maker

Question 10

What is the difference between substantive due process and equal protection?

Answer 10

Substantive due process: applies equally

Equal protection: applies differently depending on class of person

Question 11

What level of scrutiny do fundamental rights generally get?

Answer 11

Strict scrutiny

Question 12

What are fundamental rights that get strict scrutiny?

Answer 12

most things in the Bill of Rights and:

(a) right to marriage/divorce (including interracial and same-sex marriage)
(b) procreation
(c) contraception
(d) parental rights (e.g. what school to send child to or who child can visit)
(e) living with extended family (e.g. regulations that prevent family members from living together are invalid)
(f) interstate, but not international, travel (and equal treatment once become a resident)
(g) right to vote

Question 13

What are fundamental right doesn’t get strict scrutiny?

Answer 13

Abortion (use undue burden test)

Pre-viability: no undue burden

Post-viability: state may prohibit abortions unless necessary to protect woman’s health

Question 14

What non-fundamental rights get rational basis?

Answer 14

• economic rights
• education
• physician assisted suicide

Question 15

When does marriage not get strict scrutiny?

Answer 15

Reasonable requirements to protect rather than hinder (e.g. age, bestiality, etc.) right to marry are upheld under rational basis.

Question 16

When does right to vote not get strict scrutiny?

Answer 16

Rational basis for reasonable requirements that protect rather than hinder right to vote (e.g. citizenship, residency, age, etc.)

BUT, strict scrutiny for onerous or potentially discriminatory restrictions: poll taxes, literacy tests

Question 17

What is the one person, one vote principal?

Answer 17

State and local representatives: EP requires population of voting districts be substantially equal.

Federal representatives (not US senators): population of Congressional districts within a state to be as close to mathematical equality as possible.

Question 18

What is the test for gerrymandering?

Answer 18

Racial: strict scrutiny if race was predominant factor
Political: non-justiciable as political question

Question 19

What is test for private consensual adult activity?

Answer 19

there is never a legitimate state interest.

Question 20

What is test for refusing medical treatment?

Answer 20

State may require clear and convincing evidence of individual’s wish and may prevent family members from terminating treatment

• state can compel vaccination
• no right to assisted suicide

Question 21

What is the test for 2A right to bear arms?

Answer 21

Can have handguns at least in home.

Standard of review undecided, but higher than rational basis

Question 22

What is the 13th Amendment?

Answer 22

outlaws badges or incidents of slavery

• the only constitutional provision that applies to private action as well as state action

Question 23

What is the 15th Amendment?

Answer 23

Prohibits federal and state governments from denying a citizen the right to vote on account of race

Question 24

What are limits on Congress’s power under the 14A?

Answer 24

Congress has the power to adopt appropriate legislation to enforce rights under 14A, but Congress must point to a history of discrimination of rights that is congruent and proportional (i.e. narrowly tailored) to solving the identified violationn

Question 25

Can due process rights be waived?

Answer 25

Yes, if the waiver is voluntary and knowing

Question 26

What are the rights to run as a candidate in a political race?

Answer 26

• state can’t charge fee that would make it impossible for indigent candidate to run
• ballot access regulation must be reasonable and non-discriminatory
• a state can require candidates to show reasonable support to have their names placed on the ballot

Question 27

Can government allocate more public election funds to major political parties instead of minor ones?

Answer 27

Yes.

Question 28

Is the collection and distribution of data by the government (e.g. a list of all prescribed a dangerous drug) in violation of a fundamental right?

Answer 28

No. State may reasonably gather this data and distribute it.