Individual liberties and rights, including DP Flashcards
Structure of the const protection of individual libitries.
i. BOR,
ii. 13th amdt (prohibition on slavery),
iii. 14th and 1t5th—prevent states from depriving people of life, liberty and propertywithout DP and EP. also privileges and immunities (against own residents)
15th amedt prohibits denial of right to vote on account of race or color.
- “incorporated against the states”
iv. commerce clause
v. right of national citizenship.
Is there government action AKA state action
i. Const applies only to govt acts. Private conduct need not comply.
ii. EXCEPT FOR prohibiting race discrimination: § 2 of 13th amdt prohibits slavery and has been expanded to allow congress to prohibit PRIVATE race discrimination (if there’s a statute on point)
- commerce power can be used to apply constitutional norms to private conduct. for ex civil rights act prohibiting discrimination by hotels and restos.
a. under commerce clause.
b. ali’s bbq in SC refused to serve blacks– when looking at this discrimination cumulatively, there was substatantial economic effect–> congress could regulate under commerce conduct.
only ok bc it involved the sale of BBQ– commerce clause cannot be used to regulate non-economic activity that happens to have an impact on interestate commerce like vAWA - Congress CANNOT use §5 of 14 amd to regulate private behaviors. can only use it to regulate state actions.
iii. Exceptions - Public function exemption: private entity perfomring task traditionally exclusively done by the govt.
a. for ex. company town.
b. for ex white primary cases. state said political parties can prohibit blacks from choosing private. court: bc running elections is traditionally done by govt so treaed like state action
c. contra: private utility, even though given monopoly power by state, is not traditionally exclusively by the government. - entanglement exception. Const applies if the govt affirmatively authorizes, encourages or facilitates unconst activity, the const applies. Examples (hard to reconcile—but pattern is basically court will apply entanglement if its a race case. But if other const claim like 1st amendment or DP, hard to reconcile)
a. State action in enforcing racially restrictive covenants. this amounts to govt facilitating racism.
b. State action when the government leases premises to a resto that racially discriminates. this = govt facilitating discrimination.
i. But one time grant of land does not equal state action, has to be continuous government presence
c. State action when a state provides books to private schools that racially discriminate.
d. No state action when a private school that is over 99% funded by the government fires a teacher because of her speech.
i. bc state did nothing too encourage violation of free speech. distinguished from last case.
ii. govt subsidy is insufficient to constitute state action.
g. No state action when a private club with a liqueur license from the state racially discriminates.
e. no state action when NCAA orders the suspension of a basketball coach at a state university. doesn’t have to be given due process.
f. Contra: There is state action when a private entity regulates interscholastic sports within a state. association impsed sanctions on one school. SC said they’re NOT like the NCAA→ entwinement bw govt and private entity. state had delegated power to the association, money came from public schools.
i. distinguished by court bc NCAA operates all over the country, but this association was only in one state
The application of the bill of rights
i. BoR applies directly only to fed government
ii. BoRs is applied to state/ local govenments through its incorporation into the DP clause of the 14th amendment. the word “liberty” in DP clause protects fundamental rights from intereference by state/local govts. this includes but is not limited to BoR.
- defining “fundamental rights”
a. one side of debate—total incorporationists. all rights of BOR should be incorporated.
b. other side—only some are fundamental.
i. these won. never has sc held that all BOR are incorporated. but one by oone SC has applied all of rights of BOR to be deemed too be incorporated. EXCEPT never ruled on the following - 3rd amend right against quartering
a. but probably would be incorporated - 5th amd right to grand jury indictmictment in criminal cases
a. states don’t have to use grand juries if they don’t want to - 7th amdt right to jury trial in civil cases
a. States don’t have to provide juries in civil cases - 8th amendment right against excessive fines
a. never ruled on this
Levels of scrutiny
outcome of case depends on level of scrutiny when determining rights.
Rational basis
upheld if” rationally related to legitimate govt purpose.
- govt usually wins.
- challenger has BOP to show no conceivable legit purpose or law isn’t rationally related.
Intermediate scrutiny
“substantially related to impt govt purpose” more than just legit. govt objective must be important. will look to ACTUAL purpose. approach must be narrowly tailored.
- means must be a good way to achieve the end.
- but means don’t have to be BEST way to achieve objective.
- GOVT has BOP. must show subst relation to govt purpose
Strict scrutiny
upheld if “necessary to achieve compelling govt purpose”
- more than legit. goal must be crucial/ vital
- look to ACTUAL purpose
- must be necessary→ no less restrictive alternative could achieve the objective.
- GOVT has BOP.
Individual rights definitions
i. procedural DP—procedures govt must follow when taking away life liberty or property. notice/ hearing
ii. Substantive DP—whethere there’s an adequate justification for person taking away life, liberty or property.
1. protect liberty and safeguard property
iii. Equal protection—is gov’ts differences in treating people adequately justified. depends on level of scrutiny, which depends on type on discrimination
iv. DP vs. EP
1. if the law limits the iberty of ALL people to engage in some activity, on the MBE its usually a DP question
2. If the law treats a person or class of ppl differently, it’s usually an EP question
iv. When choosing b/w these, look at relief sought and type of claim.
1. if π wants better notice—its about procedural DP
2. if π saying law is unconst—substantive DP
a. but if a fundamental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest.
3. if π is saying she’s treated differently– EP
Procedural DP
Has there been a deprivation of life,liberty or property?
- deprivation of liberty occurs if loss of a significant freedom provided by const or statute.
a. usually involves violation of constitutional rght
b. for ex: before adult can be institutionalized there must be notice and a hearing, unless there’s an emergency
c. for ex: if parent institutionalizes a child, must only be screening by neutral factfinder. SC says they assume parents act in best interest of child.
d. for ex: harm to reputation ≠ deprivation of liberty
e. prisoners rarely have liberty interests - deprivation of property occurs if there is an entitlement an that entitlement is not fulfilled.
a. even taking away an enlightenment = violation of DP.
b. entitlemet = reasonable expectation to continued receipt of a benefi
c. ex. 1 year job, and then government fires them halfway through. yes person has reasonable expectation and dp required
d. contra: person was on year to year k, and each k said no expectation of renewal. one year, they failed to renew. no DP bc no reasonable expectation that contract would renew - Govt negligence is not sufficient for deprivation of DP. must have intentional govt action or at least recklessness for liability to exist
a. for ex: prisoner said he slipped bc of govt negligence. this is insufficient to = dp violation bc neglighence.
b. BUT in emergency, govt held liable only if its conduct “shocks the conscience”
i. for ex. high speed chase ends in death. not a violation of π’s death. govt liable only if govt’sconduct shocks the conscience. PO must have acted with intent to cause harm - Gov’t doesn’t have duty to protect people from privately inflicted harms
a. for ex. boy beaten by father. sued saying that child services failure to investigate reports of child abuse = loss of liberty without DP.
i. but govt had no duty to protect against privately inficted harms.
ii. ONLY if person is in custody of govt or if govt creates the danger
What procedures are required if there has been a deprivation of life, liberty or property (Procedural DP)
1) importance of individual interest 2) ability of procedures to increase accuracy 3) govt interest in efficiency
- The test: 3 part balance
a. importance of the interest to the individual
b. ability of additional procedures to increase accuracy of fact-finding
c. government’s interest—interest in efficiency - Examples
a. Before welfare benefits are terminated there must be notice and a hearing
b. When social security disability benefits are terminated, there only needs to be a post-termination hearing.
c. before school can discipline a student there must be notice and opportunity to explain.
i. cororal punishment in school doesn’t require any DP
d. before parent right to child custody can be terminated must be notice and hearing
e. punitive damage awards require instructions to the jury and judicial review to ensure reasonableness. grossly excessive punitive damages violate DP
f. Employee who can only be dismissed for cause under a statute has a property interest which requires a pretermination opportunity to respond to those charges.
f. An American citizen detained as an enemy combatant must be accorded due process
i. Hamdi—can hold him after finding on battlefield but must have DP
g. Except in exigent circumstances, prejudgment attachment or government seizure of assets must be preceded notice and a hearing.
i. exigent circumstances—reason to believe person may get rid of property, then you can give notice after seizure
ii. govt can seize property used in illegal activity even if innocent holder
Laws affecting economic liberties ; Takings clause
i. only a rational basis test is used for laws affecting economic rights. this is a minimal protection.
for ex: challenge to minimum wage or employment regs, challenges to regulations of profession, challenge to consumer protection laws.
seen as lesser than life, liberty and property so not entitled to full DP.
ii. Takings clause. Government may take private property for public use if it provides just compensation. doesn’t use levels of scrutiny, different test.: 1) is there a taking? 2) is it for public use? 3) is just compensation paid
- is there a taking?
a. possessory taking—govt confiscation or physical occupation is always a taking. “per se” taking
i. for ex requiring ppl to keep cable boxes in their home is a taking, nominal compensation
b. regulatory taking—regulation is a taking if it leaves NO reasonbable economically viable use of property
i. not a taking if it just decreases value
ii. for ex. : coastal development plan that prevented any development of property
c. note: govt conditions on developmeht must be justified by the benefits that is roghly proportionate
i. if burden is excessive then it is a taking
d. property owner may bring takings challenge to regs that existed AT THE TIME property was acquired
i. even tho regs were in place at time acquired
e. Temporarily denying an owner use of a property is not a taking so long as government action is reasonable
i. for ex. moratorium for 3 years for purpose of study is ok - If it’s a taking, is it for public use ?
a. if not for public use,govt cant take it. but virtually every taking meets this requirement. so long as govt has reasonable belief that the taking will benefit the public.
i. kelo—city took property and sold to developers to create more jobs
b. taking must be rationally related to legitimate public purpose - Is just compensation paid—must pay just compensation
a. measured in terms of loss to owner. gain to taker doesn’t matter. doesn’t matter if FMV is 10k but gain to govt is 10 mil.
Contracts clause
no state shall impair the obligations of contracts retroactively
- applies only to state or local interference with existing contracts.
a. never the federal govt
b. even if fed govt is abrogating a k. can only sue under DP and get rational basis review. - state or local interference with private ks must meet intermediate scrutin:
i. important and legit public interest
ii. reasonable and narrowly tailored.
iii. for ex prohibiting foreclosure during depression
b. State or local interference with govt contracts must meet strict scrutiny.
i. state or local govt cant abrogate its own ks unless it meets SS
Privacy as a fundamental right protected under substantive DP.. what is the level of scrutiny and what are the fundamenta rights
Strict scrutiny for:
right to marry, right to procreate, right to custody of one’s children, right to keep the family together, right to control the upbringing of one’s children, right to purchase and use contraceptives,
no right constitutional right to physician assisted death.
right to abortion–> fundamental right but NOT strict scrutiny. instead use “undue burden” test
court hasn’t identified level of scrutiny for:
right to engage in private consensual homosexual activity, right to refuse medical treatment,
Fundamental rights to marry, procreate, right to purchase and use contraceptives
ii. the right to marry (laws prohibiting same-sex marriage violate the right to marry)
iii. The right to procreate ( cant do involuntary sterilization)
vii. Right to purchase and use contraceptives
Fundamental right to custody of one’s children
must meet SS to terminate.
- state may create irrebuttable presumption that married woman’s husband is father of child
- can deny the affair father from visitation rights if mother is married
