Individual Rights Flashcards
Bills of attainder clauses are
Attainder - not attend a Trial
Prohibited legislative acts that inflict civil or criminal punishment against individual persons (or groups) without a trial
Ex post facto clauses
Prohibit enactment of retroactive criminal laws that:
- criminalize previously legal conduct
- impose greater punishment than previously prescribed
- eliminate previously available defenses
- decrease prosecution’s previous burden of proof.
The gov can interfere with the first amendment freedom of association by punishing person who:
- are active members of a subversive organization,
- know of the organization’s illegal objectives,
AND - specifically intend to further those objectives.
Gerrymandering by race:
Race cannot be a predominant factor used to draw boundary lines for state legislative districts.
If it is, those boundaries will be subject to strict scrutiny and likely invalidated by equal protection.
However, gerrymandering can use other factors like political party.
Rational basis scrutiny
the challenger has the burden to prove that the government action is not rationally related to a legitimate government interest.
This is the default test.
Intermediate scrutiny
Applied to quasi-suspect class,
which include sex/gender, and the legitimacy of children
the government has the burden to prove that its action is substantially related to an important gov. interest.
IS = Important and substantial.
Strict scrutiny
applies to fundamental rights or suspect classes
the government has the burden to prove that its action is necessary (ie least restrictive means) to serve a compelling gov. interest.
NeceSSary = SS, strict scrutiny is MSC = Must Serve a Compelling.
SS is a Nessary MSC
Suspect classes subject to strict scrutiny
- RENs + C:
- Race
- Ethnicity
- National Origin
- Citizenship Status:
If state law - subject to SS and likely will be struck down.
If Fed law - likely valid.
Why is Citizenship Status only sometimes considered in Strict Scrutiny?
- Fed law is likely valid unless arbitrary and unreasonable
- State law is generally subject to SS and will be struck down:
IE laws prohibiting noncitizens from owning land, obtaining commercial fishing licenses, or being eligible for welfare or civil service jobs.
- Exception: participation in government functions - rational basis standard applied.
Fundamental rights subject to strict scrutiny
First VIP:
- First amendment rights-
- Voting
- Interstate travel
- Privacy: family, marriage, parental rights, sexual acts, contraceptives.
Content based speech regulations
Facial discrimination, where the primary purpose targets message, subject, or idea.
Strict scrutiny is applied.
- least restrictive means
- necessary and narrowly tailored to compelling interest.
Content neutral speech regulation
regulates time, place, or manner of speech.
Intermediate scrutiny applied.
- No greater than necessary.
- narrowly tailored to substantial interest.
- alternative avenues of communication
Under the first amend. freedom of association can the gov. force a group to accept members who would significantly burden its views ?
Not the gov cannot force the group to accept members, unless that interference is necessary to achieve a compelling gov. interest.
The 1st amend prohibits the government from inquiring into a person’s associations unless:
that inquiry is necessary to protect a legit state interest.
The 5th amendment
the source of equal protection principles which apply to the fed. gov.
What is the state action doctrine ?
Private actors are considered government actors and bound by the constitution when:
- they perform a traditional gov. function
OR - the government is significantly involved in their activities - eg more than providing access to government services or facilities
Content based speech restrictions must pass strict scrutiny, this requires proof that:
The regulation is necessary and narrowly tailored to achieve a compelling gov. interest.
When can the government regulate private speech by a public employee?
If the government’s legitimate interest in efficient government function outweighs the employee’s right to free speech
Can a public university compel it’s students to pay an activity fee?
Yes, if the funds are allocated in a view-point neutral manner.
Const. claims must typically be asserted against government entities not -
private actors, except under the state action doctrine.
What is the state action doctrine ?
A private actor can be treated as a gov. entity and similarly bound by the const. when the gov. is pervasively intertwined in the control or management of the private actor.
IE: a private school that is accredited, licensed, curriculum, and funding from state.
Procedural due process is assessed by weighing three factors:
- the private interest affected,
- the risk of erroneous deprivation of that interest and probable value of other procedural safeguards
AND - the govs. interest, including the fiscal and administrative burdens that other safeguards entail.
Sever (discriminatory) electoral regulations are subject to:
Strict Scrutiny,
IE: poll tax,
disallowing third party candidates
property ownership requirement
Ordinary (nondiscriminatory) electoral regulations are subject to:
Rational basis test.
IE: voter registration
photo ID requirements
Disallowing write-in voting
First amendment exercise of religon
define, incidental v. direct burden
Heightened equal protection review is appropriate when a law intentionally discriminates when?
On its face, in its application or in its motive, against a quasi-suspect or suspect class.
The law must intentionally discriminate, if not then it is a rational basis review.
IE: the babysitter registration law
Establishment clause challenges are review under what test?
The historical test: which upholds gov, actions that have historically been permitted in accordance with the original meaning of the constitution.
Constitutional voting protection amendments
14th- prohibits substantial impairment of voting rights
15th - prohibits denial or abridgment of voting rights based on race, color, or previous servitude.
19th- prohibits denial or abridgment of voting rights based on sex.
Is school sponsored prayer in public school allowed?
No, under the coercion test, it violates the establishment clause even when participation is voluntary.
