Individual Rights Flashcards
Equal Protection
when Government treats people differently
nothing to do with due process
Strict Scrutiny
- applies to race, alienage, national origin
- government has the burden
- law is necessary to achieve a compelling interest
Intermediate Scrutiny
- Gender, illegitimacy (children)
- Government has the burden
- law is substantially related to an important interest
Rational Basis
- applies to everyone else
- plaintiff has the burden
- rationally related to a legitimate interest
Due Process
Government regulating a right for** all people**
Substantive Due Process
Government taking away/regulating a (liberty) right for** all people**
i.e. “all citizens must..”
Fundamental Rights
Strict Scrutiny
1. Right to vote
2. Free Speech
3. Interstate Travel
4. (Privacy Rights)
Non-Fundamental Rights
Rational Basis
i.e. Intrastate Travel
Privacy Rights - Strict Scrutiny
Strict Scrutiny
* contraception
* abortion (no more)
* marriage
* procreation
* education
* raise family
If not, then rational basis
Procedural Due Process
Property Rights
* government/public jobs
* licenses (i.e. law)
* public benefits (i.e. pension)
Make sure the property right is vested to the individual
No levels of scrutiny, but
needs Notice and Hearing
Equal Protection & Due Process
How to identify the correct Amedment?
Federal Law = 5th Amendment
State Law = 14th Amedment
Privileges & Immunities
State passing law that treat **non-residents **differently from residents of the state
Don’t confuse with Equal Protection
13th Amendment vs. 15th Amendment
13th Amendment:
* banned slavery
* Private individuals held liable for racial discrimination
15th Amendment:
* Racial discrimination based on voting
Takings Clause
- If Government is taking private property
- for public use*
- they must pay just compensation
public use = any overall public benefit
Inverse Condemnation
- When Government is near your property and doing something that
- reduces the economic benefit of your land
- and the value left is worth nothing
- Govt owes you just compensation
Religion
- Establishment Clause
- Free Exercise Clause
Establishment Clause
- Government cannot pass a law that will formally establishes or sponsors a religion
- Government needs to be neutrality
- follow History and Tradition
Always look towards the intent of the Government
Free Exercise Clause
- Every citizen has the right to pratice his or her religion any way they choose
- Government must remain neutral on pratice of religion
A law neutral to religion will be constitutional even if the effect prohibits practice of a religion
Speech
- Is is content based or content neutral?
Content-based regulation
- when government is stopping the message
- Strict Scrutiny
i.e. government says no to march, parade, demosntration
Content-neutral regulation
- just regulating time, place and manner
- Intermediate Scrutiny - regulation furthers significant government interest and leaves open alternative means of communication
Reasonable regulation is constitutional
Under Content-neutral regulation
Public Forum
- Same test (must further significant government interest and open alternative means of communication)
- Streets and Parks
Under Content-neutral regulation
Non-Public Forum
- reasonably related to legitimate interest
- Billboards, Signs, Buses
Unprotected Speech
Obscenity
- reasonable person would find the material appeals to prurient interest in sex by objective local community standards
- depicts sex in a patently offensive manner
- lacks any serious literary, artistc, political, or scientific value
*may be viewed differently in different communities
Fighting Words
- Harsh language likely to incite an average person to commit violence
Commercial Speech
- Business related speech
- reasonable fit to a substantial interest
- narrowly tailored
Clear & Present Danger
- Speech incites imminent violent action
- Likely to produce violenc
Clear & Present Danger vs. Fighting Words
Clear & Present Danger: Group
Fighting Words: Individual
False/Misleading Advertisement
- Speech that provides false/misleading information
- NOT protected
i.e. misleading commercials about weight loss vitamins
Prior Restraint
- stops speech before it is published
- injunctions, gag orders
- govt cannot do this - NOT protected
Unfettered Discretion
- when government is choosing one form of speech over another
- govt cannot do this - NOT protected
Overbraod & Vague Speech
- Statutes cannot be too braod or too vague
- “any forms” or “all forms”
Bill of Attainder
when state or federal government is punishing named individual or named group of people with criminal/civil penalties
Ex Post Facto Laws
when state or federal government was making some legal conduct retroactively illegal
can’t go back in time
Contracts Clause
State (not fed) cannot pass law that expressly impairs your ability to enter a contract
State Action
in order for there to be any violation, it must be the state/government (i.e. state actor) acting
look out for private entities! NEVER INFER NEXUS
