Individual Rights Flashcards
equal protection trigger
government is treating people differently
can the gov treat people differently?
yes the gov can, but we have to apply the 3 scrutiny tests
what are the 3 scrutiny tests?
strict, intermediate, and rational basis
what equal protection issues does strict scrutiny cover?
race, alienage, and national origin.
here, the gov has the burden to show that
their rule was NECESSARY to achieve a COMPELLING gov purpose
what equal protection issues does intermediate scrutiny cover?
applies to gender, illegitimacy
gov has the burden to show that
their rule is SUBSTANTIALLY related to an IMPORTANT gov purpose
what equal protection issues does rational basis cover?
applies to everyone else
burden is on the Plaintiff to show that the
rule is not RATIONALLY related to a LEGITIMATE gov interest
two kinds of due process
- substantive due process
- procedural due process
substantive due process def
government regulating a right for ALL PEOPLE
examples of substantive due process
Example:
o “All citizens must…”
o “All citizens shall not…”
o “If you want to do X, all people must do Y”
what kinds of calibur of rights are there?
- fundamental and
- non-fundamental
What is the level of scrutiny under substantive due process for fundamental rights?
strict scrutiny
what are our fundamental rights?
- the right to vote
- the right to free speech
- the right to interstate travel
- right to privacy
what is the level of scrutiny for non-fundamental rights under substantive due process?
rational basis
what is included in our rights to privacy?
- contraception
- marriage
- procreation
- education
- raising a family
(abortion used to be here but is not anymore - used to be that the gov could not place an undue burden on a woman to have an abortion)
Procedural Due Process def
these are property rights:
- gov jobs
- licenses
- public benefits
what is the level of scrutiny for procedural due process issues?
no level of scrutiny,
need NOTICE and HEARING - this is required
Do you get notice and hearing if you do not actually have the property right?
no, property right must be vested in order to receive notice and hearing under procedural due process
what are the amendment equivalencies for equal protection and due process
For federal law equal protection and due process = 5th amendment
for state law equal protection and due process = 14th amendment
when to pick Privileges and Immunities answer choice
state passes law that treats NON-RESIDENTS differently
13th vs 15th amendment
13th amendment bans slavery, PRIVATE individuals cannot racially discriminate
15th concerns voting and racial discrimination
Takings Clause rule
- government taking private property
- for public use
- with just compensation
public benefit def:
any overall public benefit
inverse condemnation def:
act denies you the economic benefit of the land
value left is worth nothing
Establishment clause def
gov cannot pass a law that formally sponsors or establishes a religion
examples of inverse condemnation
Example:
o Put nuclear power plant across from Jon’s house
o Put manure factory across from Jon’s house
o Put exit ramp of a main highway across from Jon’s
house
what are the two tests for determining whether the establishment clause has been violated?
1) History and Tradition: whether the
challenged government action accords with
historical practices and the Founding
Fathers’ original intent ( e.g., citizens shall
not be coerced into participating in religious
observance)
2) Neutrality: whether the challenged
government action is religiously neutral
Free Exercise clause
government must remain neutral on practice of religion
What if an effect of an otherwise neutral law prohibits religion?
then that law is still constitutional. A law NEUTRAL to religion will be constitutional even if the EFFECT prohibits religion
what are the two kinds of speech regulation?
content-based regulation or content neutral regulation
what is content based speech regulation? what standard of review do we use?
- gov stops the message
- triggers strict scrutiny
what is content-neutral speech regulation? What standard of review do we use?
- is a regulation on time, place, and manner
- where when, and how
- triggers a form of intermediate scrutiny
What is a public forum?
Streets and parks, places where everyone has access to
What are the requirements for placing a restriction on speech in a public forum?
- Must further significant government interest
- must leave open alternative means of communication
What are some non public forums?
billboards, signs, buses
What is the standard of review for restrictions on speech in non-public forums?
restriction must be Reasonably related to a legitimate gov. interest
What are some unprotected forms of speech?
- Obscenity
- clear and present danger
- fighting words
- commercial speech
- False/Misleading Advertisement
- Prior restraint
- unfettered discretion
- Overbroad and vague speech
What is obscene speech?
- depicts sex in a patently offensive manner
- lacks any serious literary, artistic, political, or scientific value
To what standards do we look to for whether something is obscene?
look to the local/community standards
what is speech that contains clear and present danger?
- speech that incites imminent violent action
- speech that is likely to produce violence
what is speech that contains fighting words?
Harsh language likely to incite an average person to commit violence
what is the difference between fighting words and clear and present danger?
fighting words = based on the individual
vs
clear and present danger = based on the group
what is commercial speech?
business related speech
What is the standard for regulating commercial speech?
restriction/regulation must be narrowly tailored and a REASONABLE fit to a SUBSTANTIAL gov interest
What are false or misleading advertisements?
speech that provides false or misleading information
- this is never protected
what is prior restraint in the context of speech?
prior restraint is the act of stopping speech before it is published
- these are injunctions, gag orders, or other of the likewh
what is unfettered discretion in the context of speech?
a government official cannot choose or allow one form of speech over another (no picking favorites)
what is overbroad and vague speech?
a stt cannot be too broad or too vague
keywords: ‘any’ ‘all’ ‘none’ ‘always’
What is a bill of attainder?
A bill of attainder is a piece of legislation that declares, by name, that a person or group of people is guilty of a crime.
Bills of attainder allow the government to apply a civil punishment a party for a perceived crime without first going through the trial process.
simple bill of attainder
LOOK FOR: state or federal gov is punishing (giving civil or criminal penalties) an individual or group of people by name
- named group or individual
- civil or criminal penalty
- state or fed gov
What are ex post facto laws?
laws that retroactively makes an action illegal
who can pass ex post facto laws?
both state and federal
Contracts clause, what is it?
the STATE cannot EXPRESSLY impair your ability to enter a contract
when is contracts clause the correct answer?
only when the facts makes it extremely explicit NEVER ASSUME CONTRACTS CLAUSE
State Action def
there are no violations of individual rights UNLESS the state or fed gov are doing the violating (ie: no violation of individual rights by private entities UNLESS those private entities are acting as governmental entities/taking over governmental services)
