Individual liberties, due process, and equal protection Flashcards
Bill of rights
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
Thirteenth Amendment
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
Congressional power under fourteenth amendment
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
State action requirement
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
State action and private individuals
State action can be found in actions of seemingly private individuals who
- perform exclusive public functions, or
- have significant state involvement
Exclusive public functions
Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them
State facilitates private action
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
Rational Basis test generally
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
Intermediate Scrutiny generally
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
Strict Scrutiny generally
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
Procedural Due Process basic principle
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
Liberty and deprivation
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
Property (due process)
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
Procedural due process requires … (3)
Procedural due process requires
- notice
- an opportunity to be heard, and
- a neutral decision maker
Notice - due process
Notice must be reasonably calculated to inform the person of deprivation
Hearing - due process
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)
Pre-deprivation hearing
Typically, the claimant should be given a pre-deprivation hearing unless that would be impracticable
Natural decision maker - due process
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
Procedural due process and waiver
As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly
Procedural due process - process required for commitment to mental institution
Adults- prior notice and prior evidentiary hearing
Access to courts and fees - procedural due process
Fees can be imposed when non fundamental rights are involved
Substantive due process generally
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)
Fundamental rights include…
All first amendment rights
The right to interstate travel
Privacy-related rights
Voting
Unenumerated right and fundamental right
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
Privacy-related rights generally
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
Prisoners’ rights in marriage
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
Minimum age requirements and marriage
Regulations that don’t substantially burden the right to marry, such as minimum age requirements, are subject to rational basis review
Rights of parents - substantive due process
Parental rights are fundamental rights
Include the companionship, care, custody, and upbringing of children
Keeping extended family together - substantive due process
There’s a fundamental right for family members, even extended ones, to live together
But it does not extend to unrelated people
Abortion
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
Right to privacy and obscene material
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
Right to interstate travel
An individual has a fundamental right
- to travel from state to state, and
- to be treated equally after moving into a state
Right to equal treatment in a new state
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
Right to international travel
International travel is not a fundamental right
But protected from arbitrary federal inference by the fifth amendment due process clause
- rational basis standard applies
Right to vote and restrictions
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
Dilution of right to vote generally
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
Dilution of right to vote - state and local elections
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
Dilution of right to vote - Congressional elections
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
One person, one vote and special purpose elections
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
Gerrymandering
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
Right to bear arms and standard of review
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
Gun permits and second amendment
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
Right to fair notice of conduct that is forbidden / required
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
Substantive due process - intimate sexual conduct
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
Right to refuse medical treatment
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
Equal Protection generally
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
Equal Protection - proving discriminatory classification
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
Suspect classifications - equal protection
Classifications are suspect if they are based on
- race
- national origin
- at the state and local levels, alienage
Remedying intentional school segregation
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
Promoting diversity in public primary and secondary schools - equal protection
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
Affirmative action
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
Interest in remedying past discrimination
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
Alienage classifications - federal
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
Alienage classifications - state and local
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)
Undocumented aliens
Undocumented aliens are not a suspect classification
So laws regarding them are subject to a rational basis standard
Undocumented alien children
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
Gender classifications - equal protection
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
Marital vs. non marital classifications of children
Distinctions drawn between martial and non marital children are reviewed under intermediate scrutiny standard
- substantially related to an important government interest
Animus and rational basis
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
