Individual liberties, due process, and equal protection

Question 1

Bill of rights

Answer 1

The bill of rights limits federal power but the Fourteenth Amendment due process clause applies almost all provisions of the bill of rights to the states

Besides
- fifth amendment’s prohibition of criminal trials without a grand jury indictment, and
- the seventh amendment’s right to a jury trial in civil cases

Question 2

Thirteenth Amendment

Answer 2

Prohibits slavery and involuntary servitude

Which is defined as compulsion of labor through the use or threat of physical or legal coercion

Can prohibit racially discriminatory action by anyone - government and private citizen

Question 3

Congressional power under fourteenth amendment

Answer 3

Section 5 of the 14th amendment gives congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the 14th amendment

Congress cannot expand existing constitutional rights or create new ones - can only enact laws to prevent or remedy violations of rights already recognized by the courts

To adopt a valid law, Congress must point to a history or patten of state violation of such rights and adopt legislation that is congruent and proportional (narrowly tailored) to solve the identified violation

Question 4

State action requirement

Answer 4

Because the Constitution generally applies only to governmental action, to show a constitutional violation, “state action” must be involved
- applies to government and government officers at all levels

Can be found in private individuals

Question 5

State action and private individuals

Answer 5

State action can be found in actions of seemingly private individuals who
- perform exclusive public functions, or
- have significant state involvement

Question 6

Exclusive public functions

Answer 6

Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them

Question 7

State facilitates private action

Answer 7

State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens, or where there is sufficient entwinement between the state and private party

Significantly involved in the private entity

Question 8

Rational Basis test generally

Answer 8

Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classification are reviewed under the rational basis standard

The law is upheld if it is rationally related to a legitimate government purpose
- very easy standard to meet

Person challenging it has the burden

Question 9

Intermediate Scrutiny generally

Answer 9

Regulations involving quasi-suspect classifications (gender) are reviewed under the intermediate scrutiny standard

Law is upheld if it is substantially related to an important government purpose
- exceedingly persuasive justification
- does not need to be the least restrictive

Unclear who has burden but usually placed on government

Question 10

Strict Scrutiny generally

Answer 10

Regulations affecting fundamental rights or involving suspect classifications are reviewed under strict scrutiny

Law is upheld if it is necessary (least restrictive means) to achieve a compelling government purpose
- difficult test to meet

Government has the burden

Question 11

Procedural Due Process basic principle

Answer 11

Due Process clauses of the fifth amendment (federal gov) and the 14th amend (states) provide that a person has a right to a fair process when the government deprives the person of life, liberty, or property

Negligence is insufficient - generally must be an intentional or reckless government action

Question 12

Liberty and deprivation

Answer 12

Liberty includes more than just physical freedom - right to contract and to engage in gainful employment

Deprivation of liberty occurs if a person
- loses significant freedom of action, or
- is denied a freedom provided by the Constitution or a statute

Injury to reputation itself is not a deprivation of liberty

Question 13

Property (due process)

Answer 13

Includes not only personal and real property, but also government benefits to which there is an entitlement (reasonable expectation of continued receipt)
- like welfare, education, licenses, tenure employment

Proper terminology is entitlement - so any answer that uses terminology like right or privilege should be discarded as red herring

Question 14

Procedural due process requires … (3)

Answer 14

Procedural due process requires
- notice
- an opportunity to be heard, and
- a neutral decision maker

Question 15

Notice - due process

Answer 15

Notice must be reasonably calculated to inform the person of deprivation

Question 16

Hearing - due process

Answer 16

The type and extent of the hearing are determined by a balancing test that weighs
- the importance of the interest to the individual, and
- the value of specific procedural safeguards to that interest (risk of error from the current procedures used and the benefits of additional procedures), against
- the government interest in fiscal and administrative efficiency (burden on the government from using additional procedures)

Question 17

Pre-deprivation hearing

Answer 17

Typically, the claimant should be given a pre-deprivation hearing unless that would be impracticable

Question 18

Natural decision maker - due process

Answer 18

Decision maker cannot have any actual bias (like a financial interest in the decision or a relative that is a party to the case)

Or cannot have a serious risk of actual bias

Question 19

Procedural due process and waiver

Answer 19

As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly

Question 20

Procedural due process - process required for commitment to mental institution

Answer 20

Adults- prior notice and prior evidentiary hearing

Question 21

Access to courts and fees - procedural due process

Answer 21

Fees can be imposed when non fundamental rights are involved

Question 22

Substantive due process generally

Answer 22

Guarantees that laws will be reasonable and not arbitrary

Derives from the due process clause of the fifth amendment (fed gov) and due process clause of 14th amend (states)

Question 23

Fundamental rights include…

Answer 23

All first amendment rights

The right to interstate travel

Privacy-related rights

Voting

Question 24

Unenumerated right and fundamental right

Answer 24

Fundamental rights can be enumerated in the Constitution or unenumerated

Whether an unenumerated right is fundamental depends on whether it is deeply rooted in the nation’s history and tradition and essential to the concept of ordered liberty

Question 25

Privacy-related rights generally

Answer 25

Various privacy related rights including marriage, procreation, contraception, and childrearing are fundamental rights

Regulations substantially burdening these rights are reviewed under the strict scrutiny standard

Question 26

Prisoners’ rights in marriage

Answer 26

A law prohibiting a class of adults from marrying is to get strict scrutiny

But a statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests

Question 27

Minimum age requirements and marriage

Answer 27

Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review

Question 28

Rights of parents - substantive due process

Answer 28

Parental rights are fundamental rights

Include the companionship, care, custody, and upbringing of children

Question 29

Keeping extended family together - substantive due process

Answer 29

There’s a fundamental right for family members, even extended ones, to live together

But it does not extend to unrelated people

Question 30

Abortion

Answer 30

No longer a fundamental right to an abortion under Const, the matter is left to the states

Laws restricting abortions are entitled to a strong presumption of validity under rational basis review

Several legitimate state interests that can support a restriction
- prenatal life
- protecting maternal health and safety
- eliminating gruesome or barbaric medical procedures
- preserving integrity of medical profession
- mitigating fetal pain
- preventing discrimination based on race, gender, disability

Question 31

Right to privacy and obscene material

Answer 31

The right to privacy includes freedom to read obscene material in one’s home (except for child porn), but not the right to sell, purchase, or transport such material

Question 32

Right to interstate travel

Answer 32

An individual has a fundamental right
- to travel from state to state, and
- to be treated equally after moving into a state

Question 33

Right to equal treatment in a new state

Answer 33

Fundamental right to be treated equally after moving into a state

But a problem arises when a state imposes a minimum durational residency req for receiving its benefits or otherwise dispenses state benefits based on the length of time a person has resided in the state

Isn’t always clear whether applies struct scrutiny standard so better to recall examples
- one year residency to receive full welfare benefits is invalid
- one year residency to receive state-subsidized medical care is invalid
- one year residency to vote in a state is invalid
- thirty day residency to vote in state is valid
- one year residency to get divorced is valid

Question 34

Right to international travel

Answer 34

International travel is not a fundamental right

But protected from arbitrary federal inference by the fifth amendment due process clause
- rational basis standard applies

Question 35

Right to vote and restrictions

Answer 35

Fundamental right

Restrictions on the right, other than basis of residence, age, and citizenship are invalid unless pass strict scrutiny

Property ownership is usually invalid

Reasonable time periods for residency are valid

ID required to show is valid

Poll taxes are unconstitutional

Question 36

Dilution of right to vote generally

Answer 36

The one person, one vote principle applies whenever any level of government decides to select representatives to a governmental body by popular election from individual districts

Question 37

Dilution of right to vote - state and local elections

Answer 37

For state and local elections, the populations of voting districts must be substantially equal
- variance in the number of persons included within districts cant be unjustifiably large but the districts don’t need to be within a a few percentage points of each other
- state must show that a deviation from mathematical equality is reasonable and tailored to promote legitimate state interest but 10% variance is presumptively valid

Question 38

Dilution of right to vote - Congressional elections

Answer 38

States must use almost exact mathematical equality when creating congressional districts within the state
- even .7% variance was invalidated

Not true when Congress apportions representatives among the states
- Congress’s good faith method for apportioning representatives gets more deference and is not subject to a precise mathematical formula, as are state plans

Question 39

One person, one vote and special purpose elections

Answer 39

The one person, one vote principle doesn’t apply to elections of officials who do not exercise normal governmental authority, but rather deal with matters of special interest in the community
- like water storage districts

Question 40

Gerrymandering

Answer 40

Race and presumably other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can satisfy strict scrutiny

But political gerrymandering - drawing district lines to achieve certain political results - is a non-justiciable political question

Question 41

Right to bear arms and standard of review

Answer 41

Second amendment protects the right of individuals to bear arms for self-defense
- right to keep a handgun at home and right to carry one in public

If regulation burdens an individual’s right to keep and bear arms, then the government must justify the regulation by demonstrating it is consistent with the country’s historical tradition of firearm regulation
- simply positing that the regulation promotes an important interest is not sufficient

Question 42

Gun permits and second amendment

Answer 42

For a gun permit law to be constitutional, the criteria must be clear
- a law that gives an official discretion in granting permits is unconstitutional

A state also cannot require someone who is applying for a concealed carry permit to show they need it for safety - unconstitutional

Question 43

Right to fair notice of conduct that is forbidden / required

Answer 43

A fundamental principle of our legal system is that laws that regulate people or entities must give fair notice of conduct that is forbidden or required

Question 44

Substantive due process - intimate sexual conduct

Answer 44

State has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature

Has not stated what standard but indicated that they can’t even pass rational basis test

Question 45

Right to refuse medical treatment

Answer 45

The right of a mentally competent adult to refuse medical treatment is part of an individual’s liberty

Not stated that its a fundamental right and has not stated what standard of review

But no fundamental right to physician-assisted suicide

And states can compel vaccination against contagious diseases

Question 46

Equal Protection generally

Answer 46

Arises whenever the government treats people differently from others

Equal Protection Clause of the 14th amendment is limited to state action but the due process clause of the fifth amendment contains an equal protection component

Question 47

Equal Protection - proving discriminatory classification

Answer 47

For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate

Intent may be shown by:
- a law that is discriminatory on its face
- a discriminatory application of a facially neutral law, or
- a facially neutral law with a disparate impact on a protected class of people

Discriminatory application or effect alone is not enough - legislatures discriminatory intent must be shown

Question 48

Suspect classifications - equal protection

Answer 48

Classifications are suspect if they are based on
- race
- national origin
- at the state and local levels, alienage

Question 49

Remedying intentional school segregation

Answer 49

If its proven that a school board has engaged in the racial districting of schools, the board must take steps to eliminate the effects of that discrimination (for example, busing students)

If school refuses, a court can order the school district to take all appropriate steps to eliminate the discrimination
- but order cannot go beyond the purpose of remedying the past effects of segregation

Question 50

Promoting diversity in public primary and secondary schools - equal protection

Answer 50

The SC has found that assigning students to a public primary or secondary school on the basis of race solely to promote diversity, as opposed to remedying past intentional segregation, does not satisfy strict scrutiny

Question 51

Affirmative action

Answer 51

Gov action that favors racial or ethnic minorities is subject to same strict scrutiny standard as against

Court brought the rule for universities in line with the rule for lower public schools - having a diverse student body is not an interest compelling enough to overcome strict scrutiny

Question 52

Interest in remedying past discrimination

Answer 52

Government has a compelling interest in remedying past governmental discrimination

The past discrimination must have been persistent and readily identifiable

A race-based plan cannot be used to remedy general past societal discrimination

Question 53

Alienage classifications - federal

Answer 53

Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny

Such classifications are valid if they are not arbitrary and unreasonable

Question 54

Alienage classifications - state and local

Answer 54

Generally, state/local laws on alienage (citizenship status) are suspect classifications subject to strict scrutiny

But if a law discriminates against alien participation in state government (voting, jury service, elective office), rational basis standard is applied
- and used for laws limiting certain non-elective offices involving important public policy - like police officers, probation officers, and public school teachers)

Question 55

Undocumented aliens

Answer 55

Undocumented aliens are not a suspect classification

So laws regarding them are subject to a rational basis standard

Question 56

Undocumented alien children

Answer 56

Denial of free public education to undocumented alien children is invalid

Strict scrutiny does not apply - rational basis test but hinted at higher standards
- so apply rational basis, but look for irrational animus

Question 57

Gender classifications - equal protection

Answer 57

Intermediate scrutiny - must be substantially related to an important government purpose

Exceedingly persuasive justification for the discrimination - not merely stereotype

Discriminatory statutory rape laws, all-male draft, and fathers proving parentage of non marital children are valid

Question 58

Marital vs. non marital classifications of children

Answer 58

Distinctions drawn between martial and non marital children are reviewed under intermediate scrutiny standard
- substantially related to an important government interest

Question 59

Animus and rational basis

Answer 59

If the government’s only interest in denying a benefit to or imposing a burden on a group of people is a dislike of them, the classification will not meet rational basis review