Individual Rights Flashcards
48 - What is the purpose of the privileges AND immunities clause of Article IV?
prohibits states from discriminating against out-of-state residents regarding any essential activities or basic rights (e.g., pursuing a job). Tip: the clause pertains to an OUT-OF-STATE RESIDENT’S RELATIONSHIP TO A STATE, as opposed to the pORi clause of the 14th am, which pertains to a person’s rights of national citizenship.
49 - What is the purpose of the privileges OR immunities clause of the 14th am?
probities states from passing laws that intentionally interefere with a person’s fundamental rights stemming from their national citizenship (e.g., the right to interstate travel). Tip: pertains to a person’s NATIONAL CITIZENSHIP RIGHTS, as opposed to the pANDi clause of article IV which pertains to states rights of non-residents.
63 - What is the purpose of the Bill of Rights?
The Bill of Rights is comprised of the first TEN amendments to the US Constitution, which limit the powers of the federal government over individual rights. Tip: Some Amendments in the bill of Rights have been incorporated to the states, while others have not.
64 - purpose of the 13th Am?
… prohibits anyone, including private and govt actors, from subjecting any person to slavery or involuntary servitude, and grants Congress the authority to enact legislation for enforcement. Tip: The is the only amendment that applies to private action.
65 - DPC of the 14th Am
The DPC prohibits states from depriving anyone of life, liberty, or property without the due process of law. Tip: Distinguish from DPC of 5th Am, which exists to prevent the FEDERAL govt from the same deprivations.
66 - purpose of the 15th Am?
…prohibits the fed and state govts (NOT private actors) from depriving anyone of the RIGHT TO VOTE - based on “race, color or previous condition of servitude,” and authorizes Congress to enforce this Amendment by enacting legislation.
67 - STATE ACTION requirement
For a private citizen to bring a claim alleging a violation of their constitutional rights, the citizen must show some tangible “action” taken by the government or government actor.
68 - Public Function Exception
To satisfy the state action requirement, a narrow exception exists where a private actor has been entrusted by the state to perform inherently governmental functions, becoming an agent of the state. Tip: A private actor performing a “public function” therefore may violate a private person’s constitutional rights.
69 - May a private actor’s conduct satisfy the state action requirement?
No - the general rule is that private conduct does not have to comply with the US Constitution (except the 13th Am). However, an exception exists when private entities act in a way that is authorized, facilitated, or encouraged by the government (not merely permitted). Tip: An example of private conduct constituting state action is the “public function” exception where the private actor is performing an exclusive and traditional state function.
70 - purpose of the CONTRACT CLAUSE
… prohibits STATES from enacting any law that retroactively impairs existing contract rights. Tip: The clause does NOT apply to the fed govt, which may pass legislation/laws that retroactively impairs contracts as long as it has a rational purpose.
71 - EX POST FACTO law?
… makes illegal something that was legal when the act occurred. *It is unconstitutional for states or the fed govt to enact such legislation, as it retroactively punishes past innocent behavior. Tip: Ex post facto laws only apply to CRIMINAL CASES and may also involve imposing more severe punishment than was possible when the crime was committed or changing evidentiary rules to make it easier to convict.
72 - PROCEDUAL DUE PROCESS
PDP is a constitutional guarantee that the government may not impair a person’s right to life, liberty, or property without NOTICE and a hearing before an unbiased decision-maker. Tip: Distinguish from SDP, which protects fundamental individual rights (e.g., privacy, travel, voting).
73 - When a person’s liberty or property interest being impaired, what does due process require?
1) NOTICE of impairment (i.e., notification that one’s benefit is being terminated); and 2_ the opportunity to RESPOND before the interest is terminated (i.e., a chance to present objections to the proposed termination to a fair, neutral decision maker). Tip: A court conducts a balancing test to determine the type of hearing required.
74 - 3 factors the ct use to determine what process is due (i.e., the extend of procedures and whether a prior hearing is necessary) upon a deprivation of procedural due process?
The ct determines whether a prior hearing is necessary and the extend of the procedures required by examining: (1) the important of the individual interest at stake; (2) the value of the particular procedural safeguards with respect to that interest; AND (3) the government’s interest in economic/administrative efficiency, including any additional discal or administrative burdens the process requirements will impose.
75 - May an individual waive the PDP requirement?
Yes - as long as the waiver is made voluntarily and knowingly.
76 - Is it permissible for the government to impose court fees on indigent people under the DPC?
No - the govt may not impose fees on indigent people IF the court fees affect the indigent person’s fundamental rights (such fees must be waived). Tip: If the imposition of certain fees does NOT interfere with any fundamental rights, they do not need to be waived.
77 - purpose of the TAKINGS CLAUSE
… forbids the state or fed govt from taking private property for public use without providing just compensation.
78 - When is a taking deemed for public use under the Takings Clause?
The government may only take private property if it is for public use, meaning is has a reasonable belief that the taking will benefit the public. The term PUBLIC USE is construed liberally.
79 - What is the difference between a possessory taking and regulatory taking?
Possessory Taking: The govt physically confiscates or invades the property. *Regulatory Taking: The govt regulates the property to such an extent that no economically viable use remains. Tip: The government must pay JUST COMPENSATION for both types of takings.
80 - JUST COMPENSATION and how is it measured?
Just compensation is the fair market value of the property, NOT the value of the owner’s particular need or the taker’s gain. *If the govt fails to pay fair market value, it must terminate the taking and pay the owner for any loss incurred.
81 - SUBSTANTIVE DUE PROCESS
… prohibits any law from depriving any person of fundmental personal rights, including privacy, travel, and voting. SDP also limits the government’s ability to infringe upon non-fundamental rights. Tip: If a fundamental right is being denied to EVERYONE, it is a DP issue; if a fundamental right is being denied only to certain people, it is an equal protection issue.
82 - purpose of the EPC of the 14th Am
… ensures that all laws protect people who are in the same circumstances equally (i.e., classes of people may not be discriminated against). *Laws may still classify people for specific reasons (e.g., taxation) but classifications must satisfy the applicable standard of review. Tip: The 14th Am EPC applies to states, but the same prohibitions extend to the fed govt under the 5th Am DPC.
83 - Which type of govt classification triggers SS under the EPC?
SS applies when the government INTENTIONALLY discriminates (i.e., has a discriminatory purpose that is intentional or deliberate in nature) against a SUSPECT CLASS (e.g., race, alienage).
84 - Which type of govt classification triggers INTERMEDIATE SCRUTINY under the EPC?
Intermediate Scrutiny applies when the govt regulation INTENTIONALLY discriminates (i.e., there is a discriminatory purpose that is intentional or deliberate) against a “quasi suspect” class (e.g., gender, legitimacy). Tip: When a law does NOT intentionally discriminate against a quasi-suspect class, but it has a disproportionate impact, the law will be subject to rational basis review.
85 - What is included in the nonsuspect “catch all” classification subject to rational basis review under the EPC?
Rational basis review applies to all government classifications that do NOT apply to a suspect or quasi-suspect class. *This is a catch all category that includes discrimination based on age (e.g., the elderly), disability (e.g., mental or physical), economic status, etc.
86 - What classifications are SUSPECT?
A suspect classification is a classification of people based on their race, national origin, or alienage. [RNOA] Tip: SS applies to regulations based on suspect classifications.
87 - Which classification are QUASI SUSPECT?
A quasi suspect classication is a classification of people based on their gender/sex or legitmacy (i.e., non-marital children). Tip: IS applies to regulations based on quasi-suspect classifications.
88 - Which rights are considered fundamental under the US Constitution?
The fundamental rights protected by the U.S. Constitution include: [1st IT P V] - *all 1st Am rights; *right to interstate travel; *right to privacy; *right to Vote. Tip: SS willi almost always apply to an infringement of a fundamental right, whether arising under due process or equal protection.
89 - level of scrutiny applied to AFFIRMATIVE ACTION CASES?
SS - I.e., laws enacted to favor racial minorities. Tip: The type of affirmative action policy will determine whether the court upholds the classification.
90 - When is ALIENAGE (citizenship) subject to rational basis review (i.e., NOT treated as a suspect class)?
When the alieange classification is related to SELF-GOVERNMENT and the DEMOCRACTIC PROCESS (e.g., voting/jury duty/working as a police officer/teacher/probation officer) or a federal immigration statute. Tip: Distinguish from most alienage issues, where SS will apply.
91 - 4 1st AM freedoms?
(i) religion; (ii) press; (iii) speech; and (iv) assembly and association. [RPSAA]
92 - HYPO: If the govt imposes a CONTENT-BASED regulation on speech, which presumption applies.
If the government imposes ANY content-based regulation, it is presumptively unconstitutional and will be struck –> UNLESS, it can survive SS (i.e., the regulation is necessary (narrowly tailored) to achieve a COMPELLING govt interest and uses the least restrictive means). Tip: The US Surpreme ct has never upheld a speech regulation that favors one viewpoint over another.
93 - What is the test for a content-NEUTRAL time, place, and manner restriction in a public forum?
The restruction must essentially satisfy intermediate scrutiny, defined in this context as: (1) NARROWLY tailored; (2) serving an important governmental interest; AND (3) leaving open alternative channels of communication. Tip: This test applies to regulations in public forums (e.g., streets, sidewalks, parks) and “DESIGNATED” public forums (e.g., private property often opened up for public use); a content-based restriction is presumptively unconstitutional.
94 - Which 5 types of speech MAY be restricted based on content (i.e., are unprotected speech)?
(i) imminent lawless action (threats intendd to place people in fear of harm); (ii) defamation; (iii) obscenity; (iv) fighting words; AND (v) misrepresentation (false or deceptive commercial speech). Tip: Even if speech is deemed unprotected, its regulation may still be struck if it is OVERBROAD or VAGUE.
95 - 3 elements of obscenity
expressions that, when taken as a whole, appeal to the prurient
(shameful or morbid) sex interest without Serious Literary, Artistic, Political, or Scientific value (SLAPS)—are unprotected.
*Shameful and morbid to whom? An average person applying current
community standards.
*Real child sexual abuse material is never protected. (Real means not drawn, computer-generated, or the like.)
Elements: (1) appeals to the prurient interest in sex, measures by a community standard; (2) is patently offensive and an affront to contemporary community standards; AND (3) lacks SLAPS in light of a NATIONAL reasonable standard.
96 - Does the press have greater 1st Am rights than a private citizen?
No, generally the press has no greater freedoms. Tip: If a question involves the regulation of broadcase media (i.e., radio and television), other types of regulations may apply.
97 - 3 requirements will cause a person’s affiliation with an illicit group to lose the freedom of association?
Freedom of Association is not protected if the person is: (1) an active member of an organization participating in illegal activities; (2) aware of the group’s illegal activities; and (3) has the specific intent to further those illegal activities. Tip: Generally, any law regulating the freedom of association is subject to SS.
You have the right to join whatever group you want.
• If you’re affiliated with a group that does illegal activities, like subversive
organizations, the government normally cannot use that against you, unless you
have the specific intent to further illegal activities.
• The government normally cannot use group membership—or the beliefs implied
by membership—to determine eligibility for rights or benefits, like bar
membership.
• The government cannot fire employees or contractors because of political
membership or belief unless necessary for effective job performance, like policy
making.
• The government cannot force you to let people join your group that would
substantially hinder your group’s ability to express itself, like force a Republican
club at a public university to let Democrats join.
98 - What does the freedom of religion PROHIBIT and PROTECT?
The freedom of religion prevents the government from: (1) enacting laws ESTABLISHING any one religion; OR (2) prohibitng the FREE EXERCISE thereof. Tip: The purpose of this freedom is for the government to abide by a course of neutrality.
99 - Which type of regulation violates the free exercise clause?
law that intentionally INTERFERES with or LIMITS religious practices, nor may it single out a particular religion for adverse treatment. [Any law regulating the exericse of religion is subject to SS]
100 - HISTORICAL APPROACH under the establishment clause
Examines whether the challenged govt action accords with historical practices and the Founding Fathers’ original intent regarding religious establishments.
