Individual Rights Flashcards
Besides slavery, what is required to trigger an individual’s constitutional protections?
STATE ACTION.
Generally, the Constitution protects against wrongful conduct by the government, not private parties (there is an exception for the prohibition of slavery, which applies to the government and private parties). Thus, state action is required to trigger an individual’s constitutional protections.
State action may exist in cases of private parties when:
A private person carries on activities that are traditionally performed exclusively by the state; OR
There are sufficient mutual contacts between the conduct of a private party and the government (this is a question of the degree of state involvement).
MBE Tip: Watch out for private violation of EP (covenant restricting anyone under 21 or a certain class of people), but they are looking to get COURT to ENFORCE it (eg, injunction, TRO, etc.)…the enforcement would be state action and WOULD TRIGGER EP PROTECTION, or whatever other constitutional protections may be present)
Procedural Due Process
The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied life, liberty, or property without due process of law.
Thus, a fair process (e.g., notice and hearing) is required for a government agency to individually take a person’s life, liberty, or property.
Only intentional (not negligent) deprivation of these rights violates the Due Process Clause.
The term “liberty” includes more than just freedom from bodily restraints (e.g., it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if a person:
Loses significant freedom of action; OR
Is denied a freedom provided by the Constitution or a statute.
The term “property” includes more than personal belongings and realty. A deprivation of property occurs if a person has a legitimate claim or entitlement that is not fulfilled (e.g., continued attendance at public school, welfare benefits, etc.).
The type and extent of procedural due process that is required is determined by a three-part balancing test that weighs:
The importance of the individual’s interest that is being affected; AND
The value of specific procedural safeguards to that interest;
AGAINST
The government interest in fiscal and administrative efficiency.
Substantive DP Standard of Review
A governmental regulation that infringes upon a fundamental right is subject to the strict scrutiny standard of review, while a governmental regulation that does NOT infringe upon a fundamental right is subject to the rational basis standard of review.
Strict Scrutiny. The government must prove that the regulation is the least restrictive
means to achieve a compelling government interest (very difficult to prove).
Rational Basis. The challenger must prove that the regulation is NOT rationally related
to any legitimate government interest (very difficult to prove).
Fundamental Rights (protected by Due Process)
Some rights are so deeply routed in our nation’s tradition and
history that they are considered fundamental. These rights include:
1 The right to interstate travel;
2 The right to vote; AND
3 The right to privacy, including:
The right to marry;
The right of married persons to use contraceptives;
The right of adults to engage in non-commercial, consensual sex;
The right of parents to make decisions regarding the care, custody, and control of their children (including the right to privately educate a child outside the public school system); AND
The right of related persons to live together in a single household.
Equal Protection Clause (14th amendment)
prohibits the government from denying citizens equal protection of the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made (i.e., whether the group is a suspect classification, quasi-suspect classification, or other classification).
If a suspect classification is involved, the strict scrutiny standard applies. Classifications are suspect if they are based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law).
Under the strict scrutiny standard, the government must prove that the regulation is the least restrictive means to achieve a compelling government interest.
If a quasi-suspect classification is involved, the intermediate scrutiny standard applies. Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital children).
Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest.
For all other classifications (e.g., age, disability, and wealth classifications), the rational basis standard applies.
Under rational basis, the challenger must prove that the regulation is NOT rationally related to any legitimate government interest.
NOTE. If a law limits liberty of ALL persons to engage in some activity, it is usually a due process issue. If a law treats a person or class of persons differently from others, it is usually an equal protection issue.
EP and Govt Intent.
For strict or intermediate scrutiny to be applied, there MUST be intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is NOT enough to show governmental intent. Governmental intent may be shown by:
A law that is discriminatory on its face;
A discriminatory application of a facially neutral law; OR
A discriminatory motive behind a facially neutral law.
Affirmative Action
States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination. A race-based plan cannot be used to remedy general past “societal discrimination.” The level of scrutiny applied to the regulation depends on the classification.
The power of the government to take private property for public purposes is known as
“eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this power. It provides that:
Private property may be taken;
For public use;
The government may take private property not only for its own direct use, but also to transfer the property to another private party. To challenge this taking as not being made for public use, the challenger must prove that the transfer of property is NOT rationally related to any conceivable public purpose (very difficult to prove).
With just compensation.
Just compensation requires payment of fair market value (the reasonable value of the property at the time of the taking). The value is measured in terms of loss to the owner, not the benefit to the government.
Seizure of Property. The classic application of the Takings Clause is the seizure of private property for governmental use (e.g., acquiring private land to construct a police station). Here, the property owner’s main challenge is whether he received just compensation.
Eminent Domain: regulatory taking v per se taking
Regulatory Taking. Generally, a governmental regulation that adversely affects a person’s property interest is NOT a taking (does not require just compensation); however, it is possible for a regulation to rise to the level of a taking (requiring just compensation). In determining whether a regulation constitutes a taking, the Penn Central factors are considered:
The economic impact of the regulation on the property owner;
The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property;
AND
The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property).
Per se Takings. A governmental regulation clearly results in a taking when the regulation results in a:
Permanent physical occupation of the property (e.g., a law requiring a landlord to permit a cable company to permanently install equipment on the landlord’s property);
OR
Permanent total loss of the property’s economic value (a regulation that results in a dramatic decline in the value of the property does not necessarily constitute a taking).
Exaction as a Taking
A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is:
An essential nexus between legitimate state interests and the conditions imposed on the property owner;
AND
A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development.
The “Interstate” Privileges and Immunities Clause (Article 4)
Applies to: STATES
grants or prohibits power: PROHIBITS
Dervies from: Article 4 of Constitution
The Privileges and Immunities Clause prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens). Out-of-state citizens are protected against discrimination with respect to any fundamental/basic rights (e.g., medical care, court access) or essential activities (e.g., pursuit of employment, ownership/transfer of property, engaging in the political process, etc.).
However, discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if:
The out-of-state citizens either cause or are part of the problem that the state is attempting to solve;
AND
There are no less restrictive means to solve the problem.
Remember: does not apply to corp’s or aliens, just out-of-state, human, U.S. citizens
Privileges & Immunities Clause of the Fourteenth Amendment.
Applies to: STATES
grants or prohibits power: PROHIBITS
Dervies from: 14th Amendment
This voids state enactments which clearly infringe on the privileges of NATIONAL citizenship. The protection is limited to the fundamental rights shared by all citizens, namely the right to travel freely from state to state, to petition Congress for redress of grievances, to vote for national officers, to assemble peaceably, and to discuss matters of national legislation.
To say that this clause is construed narrowly is understating the matter (it’s like saying law students do a little studying). In fact, reliance on this clause usually yields a WRONG ANSWER on the MBE. Here’s why: These same rights are protected against state encroachment by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, so, wherever Privileges and Immunities seems to apply, Due Process or Equal Protection would be a stronger argument against the constitutionality of the state action in question. Consequently, though there may be no such thing as a guarantee on the MBE, when you see “Privileges and Immunities Clause of the Fourteenth Amendment” as a possible answer for invalidating a state statute, you can be pretty sure it’s just a distractor.
Contracts Clause
Applies to: STATES
grants or prohibits power: PROHIBITS
Derives from: Article 1
The Contracts Clause limits the ability of states to enact laws that RETROACTIVELY IMPAIR CONTRACT rights. *It does NOT affect contracts not yet made.
Note: There is no comparable clause applicable to the federal government; however, flagrant contract impairment would likely violate the 5th Amendment Due Process Clause.
State legislation that substantially impairs an existing private contract (a contract between private parties) is invalid unless the legislation passes intermediate scrutiny (e.g., the challenged law must be necessary to further an important and legit government interest by means that are substantially related to that interest).
State legislation that substantially impairs an existing public contract (a contract in which the state is a party) is tested by the same basic test as above, but will likely receive stricter scrutiny.
First thing to do on K’s clause question: check to see if the contract predates the statute. If not, then K clause irrelevant.
Also note: the state needn’t adhere to a K where it surrenders, from the start, an essential attribute of sovereignty (such as the police power or eminent domain).
May state or federal government pass ex post facto laws? Definition?
NO.
Look for RETROACTIVE INCRIMINATION or PUNISHMENT
The state or federal government may not pass an ex post facto law. An ex post facto law is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity.
A statute retroactively alters a law in a substantially prejudicial manner if it:
Makes criminal an act that was innocent when done;
Prescribes greater punishment for an act than was prescribed when it was done; OR
Reduces the evidence required to convict a person of a crime from what was required when the act was done.
