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Individual Rights Flashcards

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1
Q

What is the propose of the Privileges and Immunities Clause of Article IV?

A

Prohibits states from discriminating against out-of-state residents regarding any essential activities or basic rights (pursuing a job)

TIP: this clause pertains to an out-of-state resident’s relationship to a state - as opposed to the privileges OR immunities clause of the 14th amendment which pertains to a person’s rights of national citizenship

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2
Q

What is the purpose of the Privileges OR immunities Clause of 14th Amendment?

A

Prohibits states from [passing laws that internally interfere w/ a person’s fundamental rights stemming from their national citizenship (ex, right to interstate travel)

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3
Q

What is the purpose of the 13th Amendment

A

prohibits anyone, including private and government actors, from subjecting any person to slavery or involuntary servitude, and grants Congress the authority to enact legislation for enforcement

TIP: this is the ONLY amendment that applies to private action

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4
Q

What is the purpose of the Due Process Clause of the 14th Amendment?

A

prohibits states from depriving anyone of life, liberty, or property w/out due process of the law

TIP: distinguish from DPC of 5th amendment which exists to prevent FEDERAL government from same deprivations

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5
Q

What is purpose of 5th amendment?

A

prohibits the federal and state governments (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

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6
Q

What is the “state action” requirement?

A

For a private citizen to bring a claim alleging a violation of their const rights the citizen must show some tangible “action” taken by the government or gov actor

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7
Q

What is the “public function” exception to the state action requirement?

A

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

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8
Q

May a private actor’s conduct satisfy the state action requirement?

A

NO.

General rules is that private conduct does not have to comply with US Const (except 13th am)

HOWEVER - exception 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 consituting state action is the “public function” exception - where private actor performing an exclusive and traditional state function

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9
Q

What is the purpose of the Contract Clause?

A

Prohibits states from enacting any law that retroactively impairs existing contract rights

TIP: This Clause does NOT apply to the federal government, which may pass legislation that retroactively impairs k’s as long as it has a rational purpose

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10
Q

What is an “ex post facto” law?

A

Ex post facto law makes illegal something that was legal when act occurred

-it is unconditional for States or federal government 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 sever pun shipment than was possible when the crime was committed or changing evidentiary rules to make it easier to convict

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11
Q

What is “procedural due process”?

A

Procedural due process: is a constitutional guarantee that the government may not impair a person’s right to life, liberty, or property w/out notice and a hearing before an unbiased decision-maker

TIP: distinguish from substantive due process, which protects fundamental individual rights (eg, privacy, travel, voting)

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12
Q

When a person’s liberty or property interest being impaired, what does due process require?

A

When a person’s liberty to property interest has been infringed upon, due process requires:

  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

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13
Q

Which 3 factors will a court use to determine what process is due (i.e., the extent of procedures and whether a prior hearing is necessary) upon a deprivation of procedural due process?

A

The court determines whether a prior hearing is necessary and the extent of the procedures requiring by examining:

  1. the importance of the individual interest at stake;
  2. the value of the particular procedural safeguard w/ respect to that interest; AND
  3. the gov’s interest in economic/administrative efficiency, including any additional fiscal or administrative burdens the process requirements will impose
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14
Q

May an individual waive the procedural due process requirement?

A

YES

An individual may waive the procedural due process requirement as long as waiver is made voluntarily and knowingly

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15
Q

Is it permissible for the government to impose court fees on indigent people under the DPC?

A

NO

The gov 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 w/ any fundamental rights, they do not need to be waived

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16
Q

What is the purpose of the Takings Clause

A

forbids the state or fed gov from taking private property for public use w/out providing just compensation

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17
Q

What is a taking deemed for “public use” under Takings Clause?

A

The gov may ONLY take private property if it is for public use, meaning it has a reasonable belief that the taking will benefit the public

TIP: the term public use is construed liberally

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18
Q

What is the difference between a possessory taking and a regulatory taking?

A

Possessory taking: the gov physically confiscates or invades the property

Regulatory taking: the gov regulates the property to such an extent that no economically viable use remains

TIP: the gov must pay “just compensation” for both types of takings

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19
Q

What is “just compensation” and how is it measured?

A

the FMV of the property, NOT the value of the owner’s particular need to the taker’s gain

-if the gov fails to pay FMV, it must terminate taking and pay owner for any loss incurred

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20
Q

What is the purpose of the Equal Protection Clause of 14th Am

A

-ensures that all laws protect people who are in the same circumstances equally (classes of people ay not be discriminated against)

-laws may still classify ppl for specific reasons (taxation), but classifications must satisfy the applicable standard of review

TIP: 14th Equal Protection Clause applies to states
–> BUT same prohibitions extend to fed gov under 5th amendment Due Process Clause

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21
Q

Which type of government classification triggers struct scrutiny under the Equal Protection Clause

A

Strict scrutiny 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)

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22
Q

Which type of government classification triggers intermediate scrutiny under the EPC?

A

Appplies when the gov regulation intentionally discriminates (i.e., there is a discriminatory purpose that is intentional or deliberate against a “quasi-suspect” class (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

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23
Q

What classifications are considered SUSPECT?

A

A suspect class is a classification of people based on:
RACE
NATIONAL ORIGIN
ALIENAGE

TIP: strict scrutiny applies to regulation based on suspect class

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24
Q

Which classifications are considered “quasi-suspect”?

A

Gender/sex
legitimacy (i.e., non-marital children)

TIP: Intermediate scrutiny applies

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25
Q

Which rights are considered FUNDAMENTAL under US constitution?

A

FUNDAMENTAL RIGHTS:
- right to interstate travel
-right to privacy
-right to vote and
-all first amendment rights

TIP: strict scrutiny will almost always apply to an infringement of fundamental right, whether arising under DP or EP

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26
Q

Which level of scrutiny applies to affirmative action cases?

A

Strict scrutiny applies to affirmative action cases (i.e., laws enacted to favor racial minorities)

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27
Q

When is alienage (citizenship) subject to rational basis review (i.e., NOT treated as a suspect class)?

A

Alienage will NOT be considered a suspect class, and therefore, rational basis review will apply, IF the alienage classification is related to self-government and the democratic process (e.g., jury duty, voting, working as police officer, teacher, or probation officer) or a federal immigration statute

TIP: distinguish from most alienage issues, where strict scrutiny will apply

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28
Q

What are the 4 first amendment freedoms?

A
  1. religion
  2. press
  3. speech
  4. assembly and association
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29
Q

HYPO:

If the government imposed a CONTENT-BASED regulation on speech, which presumption applies?

A

If the gov imposes ANY content-based regulation, it is PRESUMPTIVELY UNCONSTITUTIONAL and will be struck UNLESS it can survive strict scrutiny (i.e., it is necessary (narrowly tailored) to achieve a compelling government interest and uses the least restrictive means)

TIP: the SC has NEVER upheld a speech regulation that favors one viewpoint over another

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30
Q

What is the test for a content-NEUTRAL time, place, and manner restriction in a public forum?

A

For a content-NEUTRAL time, place, and manner restriction in a public forum to be upheld, it must essentially satisfy intermediate scrutiny, define 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 (eg, streets, sidewalks, parks) and “designated” public forums (eg, private property often opened for public use); a content-based restriction is presumptively unconstitutional

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31
Q

Which 5 types of speech MAY be restricted based on content (ie, are unprotected speech)

A

“Unprotected” speech may be restricted based on its content including:

  1. imminent lawless action (threaten intended to place ppl in fear of harm)
  2. defamation
  3. obsencity
  4. fighting words; AND
  5. misrepresentation (false or deceptive commercial speech)

TIP: even if speech is deemed “unprotected” its regulation may still be struck if it is over broad or vague

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32
Q

What are the 3 elements of obscenity?

A

Speech is “obscene” if, taken as a whole, the average person would find that it:

  1. appeals to the prurient interest in sex, measured by a community standard
  2. is patently offensive and an affront to contemporary community standards AND
  3. lacks serious literary, artistic, political, or scientific value in light of a national reasonable person standard

TIP: the first 2 factors use a local/community standard and the 3rd is national standard

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33
Q

Does the press have greater 1st Amendment rights than a private citizen?

A

NO.

Generally press has no greater 1st am freedoms than private citizens

TIP: if a question involves the regulation of broadcast media (radio, tv) - other types of regulations may apply

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34
Q

Which 3 requirements will cause a person’s affiliation with an illicit group to lose the freedom of association?

A

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 STRICT scrutiny

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35
Q

What does the freedom of religion prohibit and protect?

A

The freedom of religion prevents the government from:

  1. enacting laws establishing any one religion; OR
  2. prohibiting the free exercise thereof

TIP: the purpose of this freedom is for the government to abide by a court’s of neutrality

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36
Q

Which type of regulation violates the Free Exercise Clause?

A

The gov may not pass a law that INTENTIONALLY interferes w/ or limits religious practices, nor may it single out a particular religion for adverse treatment

TIP: any law regulating the exercise of religion is subject to STRICT scrutiny

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37
Q

Define “historical approach” under Establishment Clause

A

Examines whether the challenged government action accords w/ historical practices and the Founding Fathers’ original intent regarding religious establishments

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38
Q

Which level of scrutiny applies to interstate travel?

A

STRICY - applies to any law that inhibits a person’s fundamental right to move into a state or between states

TIP: durational residency requirements, which typically require some period of in-state residency b4 receiving benefits, must ALSO satisfy STRICT scrutiny

39
Q

Which 4 personal freedoms fall under the fundamental right to privacy

A
  1. marriage
  2. procreation
  3. contraception AND
  4. family and parental rights

TIP: The right to privacy falls under “substantive due process” - which prevents laws from depriving anyone of fundamental rights (including, but not limited to, privacy, voting and travel)

-if a statutory classification unduly burdens a fundamental due process right –> it triggers struct scrutiny under equal protection

40
Q

Which level of scrutiny applies to the right to vote?

A

STRICT - applies to any law that restricts one’s fundamental right to vote (unless on basis of age, residency, or citizenship)

TIP: requirements to own property in order to vote are almost ALWAYS unconstitutional

41
Q

What is “liberty” for purposes of procedural due process?

A

“Liberty” is defined as:

  1. freedom from government-imposed physical restraints, in both criminal and non-criminal contexts; AND
  2. the right to enter into contracts and seek gainful employment

TIP: in crime context, due process ensures that an accused has certain rights regarding physical restraint

42
Q

What is property for purposes of procedural due process?

A

Property: one’s ownership over real and personal property items (eg, land money) or a rightful entitlement to something (eg, an interest in a k for employment)

TIP: to have a property interest, one must have more than some abstract need for, desire for, or unilateral expectation of a benefit; they must have a legitimate legal claim to it

43
Q

Which 2 questions should you ask FIRST to determine whether procedural due process had been denied?

A

First ask:

  1. has a “liberty” or “property” right been impaired; AND
  2. if yes, what process is due?

TIP: for a government job to be considered “property” interest, there must be a legitimate claim or entitlement to the job, usually thru a k that says termination may only be “for cause”

44
Q

What standard is used for determining whether a taking is for “public use”?

A

A taking is for “public use” if it is rationally related to any conceivable public purpose (eg, for the benefit of health, welfare, economic, or safety)

TIP: a taking may be for “public use” even if the property will not actually be used by the public( ie, the taking may be constitutional if a private company is using it in a way that fathers a public interest)

45
Q

What are the 2 prongs of the strict scrutiny test under the Equal Protection Clause?

A

A struct scrutiny analysis under the Equal PC requires the court to determine:

  1. whether the classification (ie., law or regulation) is “necessary” to promote a compelling government purpose AND
  2. if the “necessary” classification is narrowly tailored such that no alternative, less burdensome means exists

TIP: burden of poof is on the government under strict scrutiny

46
Q

What is the intermediate scrutiny test under Equal PC?

A

Imposes a burden on government to show that the classification (law/regulation) is substantially related to an “important” government interest

TIP: for gender classifications, there must be an “exceedingly persuasive justification”
-the gov’s interest must be genuine, not based on broad, stereotypical generalizations about men and women

47
Q

What is the rational basis test under the Equal PC?

A

Under rational basis test, the gov action is presumed constitutional unless the challenger can prove the government classification is NOT rationally related to any conditionality permissible state interest (i.e, wholly arbitrary or capricious)

TIP: court gives “wide latitude” to governments enacting economic and social regulations

48
Q

How do fundamental rights arise in the context of equal protection rather than due process?

A

Fundamental rights are historically grounded in the Due Process Clause, although infringements upon these rights might trigger review under either DPC or equal protection

When a fundamental right (eg, right to privacy, vote, travel, free speech) is violating SOME people’s freedoms, but not others’, it is an equal protection issue

When a fundamental right is being denied to EVERYONE, it is a (substantive) due process issue

TIP: a fundamental right will be subject to STRICT scrutiny regardless of whether it falls under equal protection or due process

49
Q

What is the test for when the government may impose a time, place, and manner restriction on expression in a NON-public forum?

A

The government may impose a time, place, and manner restriction on expression in a NON-public forum IF the regulation is:

  1. reasonably related to a legitimate purpose;
  2. viewpoint neutral; AND
  3. not intended to suppress speech
50
Q

HYPO:

If a facially-neutral regulation burdens religious conduct, but applies to others who engage in the same conduct for non-religious purposes, will it be upheld?

A

YES

TIP: a court will NEVER inquire into the truth of a person’s beliefs, but it will inquire into the sincerity of those beliefs

51
Q

Under substantive due process, what level of scrutiny applies to the deprivation of fundamental rights?

A

STRICT

TIP: the gov must show the law is necessary to achieve a COMPELLING gov interest

52
Q

Under substantive due process, what level of scrutiny applies to the deprivation of nonfundamental rights?

A

Rational basis review applies to non fundamental rights under substantive due process

TIP: the law is upheld if it is rationally related to a legitimate government purpose - the burden is on the CHALLENGER

53
Q

Define “procedural due process”

A

Prevents the government from impairing a person’s right to life, liberty, or property without fair process

54
Q

Define “incorporation doctrine”

A

The “incorporation doctrine” is a constitutional doctrine through which the first 10 amendments of the US Const are made applicable to the states through the Due Process Clause of the 14th amendment

55
Q

What justification has been used to uphold affirmative action programs under strict scrutiny

A

Remedying the effects of past or present discrimination in a particular institution has been upheld as permissible under the EPC because it is narrowly tailored to further a compelling government interest

56
Q

Define EPC of 14th Amendment

A

prohibits states from treating different classes of people differently w/out adequate justification

57
Q

Which level of scrutiny applies to gender classifications

A

Intermediate scrutiny

58
Q

Define rational basis review

A

states that a law will be upheld if it is rationally related to a legitimate government purpose

-burden of proof on challenger of the law

59
Q

What are the 3 types of classifications that may arise in an EP analysis?

A
  1. suspect classifications and fundamental rights (strict)
  2. quasi-suspect (intermediate)
  3. Nonsuspect (rational basis)
60
Q

What is the threshold determination for a potential EPC issue?

A

Before determining whether there was discrimination and what level of scuiritny applies –> FIRST determine whether there was STATE ACTION

TIP: also consider whether private action may be considered state action

61
Q

Strict scrutiny

A

States that law will be upheld if it is necessary to achieve a compelling government interest

-BURDEN on gov to show that no less restrictive/burdensome means exist to achieve its goal

62
Q

Intermediate scrutiny

A

States that a law will be upheld if it is substantially related to an important government interest

-GOV bears burden

63
Q

Freedom of Association Definition

A

protects an indidivudal’s right to freely associate w/ other people

TIP: this freedom often around joining in groups for expression or political affiliation
-not an absolute right, as gov may regulate based on a compelling interest if less restrictive means are unavailable

64
Q

What is a “content-NEUTRAL” regulation on speech

A

a regulation on speech that is “content-neutral” is aimed at regulating the TIME, PLACE, MANNER of the speech, NOT its message

-intermediate scrutiny

TEST: requires reasonable restrictions on time, place and manner of speech that are narrowly tailored to serve an important government interest, and the regulation must leave open alternative channels of communication to engage in such speech

65
Q

Define “Free Exercise Clause”

A

Bars any law that prohibits the free exercise of religion

TIP: only applies if the purpose of the law is to limit or interfere w/ religious practice

66
Q

What is a “limited public forum”?

A

Public property that the gov opens for specific speech reasons and may regulate around that particular use (eg, school may open its gym for a SINGLE community even related to a political issue)

TIP: “limited public forums” are in contrast to public forums, designated public or nonpublic

67
Q

What is the test for government regulation of PROTECTED commercial speech?

A

The gov may regulate otherwise protected commercial speech if the regulation:

  1. serves a substantial government interest;
  2. directly advances that interest; AND
  3. is reasonably tailored to serve that interest
68
Q

What is a “content-BASED” regulation on speech?

A

when it restricts speech based on its subject matter or viewpoint, NOT just its time place or manner

69
Q

What is a “designated public forum”?

A

is public property that is not regularly open to speech-related activities, but which the gov has thrown open for such activities on a PERMANENT OR LIMITED BASIS (eg., schools that are open for after school by social, civil, or recreational groups)

TIP: the 1st amendment regulations for public forums apply to designated public forums

70
Q

When is commercial speech UNPROTECTED?

A

Commercial speech that is false, misleading, deceptive, or illegal is not protected and may be regulated by gov

71
Q

What is a “nonpublic forum”?

A

Government property NOT traditionally used for public speech (eg, the principals office at a public school or military base) and the government MAY regulate content but not viewpoints

TIP: content regulations that are viewpoint-neutral may restrict speech of certain subjects but may not restrict the speech of a particular view

72
Q

What is the test for when the gov may restrict symbolic speech?

A

Gov may regulate symbolic speech if the regulation:

  1. furthers an important gov interest unrelated to the suppression of speech; AND
  2. prohibits no more speech than necessary
73
Q

When is a speech regulation considered unconstitutionally “overbroad”?

A

when it bans both protected and unprotected speech

74
Q

What is speech that incites imminent lawless action?

A

Speech is considered to be advocating “imminent lawless action” if:

  1. there is substantial likelihood the advocacy is directed to inciting or producing imminent lawless action; AND
  2. is likely to incite or produce such action
75
Q

When is a speech regulation considered unconstitutionally “vague”?

A

If it is so unclearly defined that a reasonable person would not be able to tell whether the speech is permitted or prohibited

76
Q

What are fighting words?

A

words that are likely to cause the listener to commit an act of violence

77
Q

Define Establishment Clause

A

prohibits gov from discriminating against a specific religion or sect

78
Q

What is a “prior restraint” on speech?

A

a prohibition on speech before the speech has occurred, through a court order or licensing requirement

TIP: prior restraints are disfavored and must pass strict scrutiny

79
Q

What must a public official or public figure show to successfully raise a defamation claim?

A

When the π bringing a defamation claim is a public official/figure, the 1st amendment requires the π to show that the ∆ acted with “actual malice

TIP: actual malice occurs when a statement was made with KNOWLEDGE of its falsity OR with RECKLESS DISREGARD for whether it was false or not

80
Q

What initial determination is necessary to analyze the constitutionality of a time, place, or manner restriction?

A

FIRST: determine type of forum where speech/conduct occurs (ie, public, nonpublic, limited, or designated public forum)

81
Q

May the press use the 1st amendment as a defense to trespass or other tort claim?

A

NO

1st am doesn’t protect the press from liability for violating generally applicable laws, even if such laws impact the ability to gather and report the news on a matter of public concern

82
Q

What is a public forum?

A

property open to public (public sidewalks)

83
Q

Which lvl of scrutiny applies to content-based regulations on speech?

A

strict

-narrowly tailored compelling
-least restrictive means

84
Q

When does the 1st amendment protect the press from liability when publishing?

A

when publishing truthful private facts about a matter pop public concern where such info was legally obtained

85
Q

What is a “bill of attainder”?

A

an unconstitutional legislative act that punishes specific individuals w/out a judicial trial

86
Q

What are the ways a statute may constitute an ex post facto law?

A

A statute is deemed an ex post facto law by retroactively altering the criminal law if it:

  1. makes criminal an act that was not a crime when committed
  2. prescribes greater punishment for a crime after its commission
  3. decreases the amount of evidence required for conviction OR
  4. extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired
87
Q

Does the Priv AND Immunities Clause of Art. IV apply to corporations or aliens?

A

NO

only applies to individuals who are US citizens

88
Q

When will a state law that discriminates against non-residents be upheld under the Privileges AND immunities clause of article IV?

A

A law that discriminates against non-residents will be upheld if there is a “substantial justification” for the differing treatment

In application - this requires the state to demonstrate that the non-residents are part of the cause of the problem and no less restrictive means exist to solve that problem

89
Q

Contracts Clause

A

prevents state gov’s from passing laws that retroactively or substantially impair existing contracts

90
Q

What are the levels of scrutiny applied to government interference w/ public v. private contracts?

A

Private K’s: if a law substantially interferes w/ a private k - INTERMEDIATE

Public K’s: if a law substantially interferes with a public (gov) K - STRICT

91
Q

Define “possessor taking”

A

is a PER SE taking that occurs when the gov physically takes or occupies property

92
Q

Which factors will the court balance in determining whether a regulatory taking has occurred?

A

Courts will balance the:

  1. impact of the regulation on the claimant; diminution in value to the owner; AND
  2. extent to which the regulation interferes w/ distinct investment-backed expectations
93
Q

Will government conditions imposed on the approval of permits constitute a taking?

A

NO.

The gov may impose an exaction or a demand in exchange for a benefit conferred by the gov, such as conditional approval of a building permit

The gov may impose such a burden w/out it being considered a taking as long as there is an “essential nexus” between the public need and the imposed exaction, AND if the benefit from the demand is “roughly proportional” to the burden imposed by allowing the proposed development

TIP: the burden is on GOV to show evidence of its findings

Con Law (4 decks)

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