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Individual Rights Flashcards

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1
Q

What does 14th and 15th Amendment prohibit?

A

Government and not private conduct

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2
Q

What is state action?

A

Government action, also:
Public function: private entity performing traditional government functions
Significant state involvement

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3
Q

13th Amendment

A

Prohibits slavery and involuntary servitude

Also used to prohibit purely private action

best answer when private individuals (not state actors) discriminate

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4
Q

Supremacy Clause - general Rule

A

federal law will supersede any state law which directly conflicts with the federal law

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5
Q

Where congress doesn’t occupy a field completely…

A

States may enact similar legislation - as long as it isn’t preempted

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6
Q

Where congress has established minimum standards…

A

states may enact more stringent standards

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7
Q

What provisions of the bill of rights are incorporated to the states?

A

All the First Amendment guarantees (speech, press, assembly, right to petition, free exercise, and nonestablishment of religion);

the Second Amendment right to bear arms;

the Fourth Amendment (unreasonable search and seizure);

some elements of the Fifth Amendment (privilege against self- incrimination; compensation for taking of private property for public use);

the Sixth Amendment (speedy and public trial by impartial jury, notice and right of confrontation, compulsory process, and right to legal counsel in all serious criminal proceed- ings); and

the Eighth Amendment (cruel and unusual punishment, excessive bail, and excessive fine provisions are assumed to be incorporated but there is no precise ruling)

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8
Q

Scope of Due Process and Equal Protection Clauses of 14th Amendment?

A

Protect rights of persons - includes corporations and aliens

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9
Q

What is procedural due process and what amendments provide this protection?

A

5th and 14th Amendments protect against deprivation of life, liberty or property without due process of law. Where there is deprivation, individual is entitled to fundamentally fair procedural safeguards (determine what safeguards are necessary)

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10
Q

What factors does the supreme court consider to determine what procedural safeguards are necessary for a deprivation of life, liberty, or property?

A
  1. Affected Private Interest
  2. Risk of erroneous deprivation
  3. Government interest (function involved vs. fiscal/administrative burdens of additional procedural requirements)
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11
Q

Irrebuttable presumptions are…

A

unconstitutional and violate procedural safeguards

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12
Q

How are fundamental rights evaluated?

A

Substantive Due Process - evaluate governmental regulations that affect fundamental rights of personhood - not property

Strict Scrutiny Review

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13
Q

What are some fundamental rights?

A 
Vote
Travel
Privacy
First Amendment
Family Rights
Other rights referred to as fundamental
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14
Q

Right to use contraceptives belongs to…

A

Single and married folks

States may not prohibit the same of contraceptives to minors except through a licensed pharmacist

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15
Q

Right to Marry is…

A

Fundamental. Any substantial interference must be necessary to further a compelling interest

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16
Q

Abortion (before and after viability)

A

Woman has a protected privacy right to have an abortion before viability.

After viability: state may regulate and even proscribe abortion except where necessary for preservation of the life of or health of the mother

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17
Q

Court holdings regarding abortion (4)

A
  1. Spousal notification/consent is not required
  2. Parental consent required for unemancipated minor - judicial bypass also available
  3. No right for government funding for abortions - states may prohibit the use of public facilities and employees in performing abortions
  4. Federal ban on partial-birth abortions
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18
Q

Private Education?

A

Parents have this right

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19
Q

Right to obscene material?

A

Okay in private home

Government can regulate sale, purchase, receipt, transport, and distribution of obscene materials in stores/mail

Government can criminalize private possession of child porn

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20
Q

Right to die is…

A

Not a fundamental right.

But you have the right to refuse medical procedures like life support

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21
Q

Right to travel - Protected by which clause?

A

Privileges and Immunities Clause and Commerce Clause

Right to travel freely among the states (govt can restrict international travel)

Durational residency requirements for government benefits are subject to strict scrutiny

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22
Q

Right to vote extends to…

What level of scrutiny?

A

U.S. Citizens
All elections - including federal, state, local, and primaries
Strict Scrutiny except government regulation of ballot-access by candidates - based upon age, duration of residency, or payment of filing fees - require only minimum rational basis scrutiny.

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23
Q

Requirements for redistricting?

A

Whenever the government attempts to establish a new apportionment or re-districting scheme, fairly exact mathematical equality between districts is required so as not to dilute the fundamental right to vote. There must be equality in the distribution of the right to vote.

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24
Q

Taking Clause Provides…

A

5th Amendment - Private property shall not be taken for public use without just compensation

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25
Q

What constitutes a taking?

A

Direct Government Appropriations
Regulatory Taking
Temporary Restrictions
Conditional Permits

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26
Q

Equal Protection?

A

14th Amendment guarantee of substantive due process assures that a law will be fair and reasonable, not arbitrary; equal protection review is triggered where persons similarly situated are treated differently.

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27
Q

Difference between Equal Protection and Substantive Due Process?

A

Substantive due process review applies where a law affects the rights of all persons with respect to a specific activity. (prohibition on sale of birth control except by prescription)

Equal Protection review applies where a law affects the rights of SOME persons with respect to a specific activity. (prohibition on sale of birth control to unmarried people)

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28
Q

What are the different standards of review?

A

Strict Scrutiny
Intermediate Scrutiny
Rational Basis

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29
Q

Define Strict Scrutiny?

A

The burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. Necessary means that there is no less restrictive means available. The government usually fails to prove its burden under strict scrutiny, so an equal protection challenge to a law is generally successful.

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30
Q

Define Intermediate Scrutiny?

A

The burden of persuasion is placed on the government to prove that the measure being challenged is substantially related to the achievement of an important governmental interest. Substantially related means that an exceedingly persuasive justification must be shown. Intermediate scrutiny is much closer to strict scrutiny than it is to rational basis.

31
Q

Define Rational Basis?

A

Plaintiff must prove measure being challenged is not rationally related to any legitimate governmental interest. Pretty much any police power with furthers a health, safety, or welfare purpose will be found legitimate, so Plaintiffs’ equal protection challenges here are generally unsuccessful.

32
Q

Types of SS Classifications?

A 
Race
National Origin
Alienage
Domestic Travel
Voting
33
Q

Types of IS Classifications?

A

Gender
Illegitimacy
Undocumented Alien Children

34
Q

Types of RB Classifications?

A

Alienage Classifications related to self-government and democratic process

Congressional regulation of aliens/immigration

Age

Handicap

Wealth

Sexual Orientation

All others

35
Q

How can a plaintiff prove discrimination?

A

Discriminatory intent - purposeful discrimination - must be shown to trigger strict or intermediate scrutiny. Mere discriminatory effect is insufficient. Discriminatory intent may be shown facially, as applied, or where a discriminatory motive exists.

36
Q

Justifications for affirmative action that have been upheld include:

A
  • remedying the effects of past or present discrimination in a particular institution and
  • achieving a diverse student body in an institute of higher education.
37
Q

Privileges and Immunities clause of 14th Amendment is applicable…

A

Travel from state to state, petition congress for redress of grievances, vote for national offices, enter public lands, to be protected while in custody of U.S. marshals, and to assemble peacefully. Corporations and aliens are not protected here.

38
Q

Comity Clause (Privileges and Immunities Clause of Article IV) provides:

A

“the citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States.”

This clause prohibits states from discriminating against non-residents based upon the fact they do not reside in the state with respect to rights and activities that are fundamental to the national union.

Corporations and aliens are not citizens here.

39
Q

Comity Clause will not protect…

A

things like licenses for recreational activities and situations where discrimination is based on preservation of natural, state-owned, resources.

So economic rights against individuals trigger the comity clause analysis where as the dormant commerce clause is used to analyze economic discrimination against corporations.

40
Q

If State law discriminates against out-of-staters…

Analysis under DCC

A

Dormant Commerce Clause:
If it burdens IC, it violates DCC unless:
1. Serves compelling state interest and
2. narrowly tailored

41
Q

If State law discriminates against out-of-staters…

Analysis under PI Article IV

A

Violates PI unless it specifically targets a problem arising from such non-residents behavior (no less discriminatory alternative)

**Corporations and aliens cannot use PI of Art IV

42
Q

If State law doesn’t discriminate against out-of-staters, it could still violate the DCC if…

A

it excessively burdens IC in relation to the benefit

43
Q

If State law doesn’t discriminate against out-of-staters, does Art IV PI apply?

A

No

44
Q

Purpose and Definition of Contract Clause?

A

No state shall pass any Law impairing the obligation of contracts.

Purpose is to prevent retroactive legislation that will impair performance of a contract so it applies only to state legislation - not state court decisions or federal government.

45
Q

When can a private contract be modified by state legislature?

A
  1. Necessary to serve an important and legitimate public interest and
  2. The regulation is a reasonable and narrowly tailored means of promoting that interest.
46
Q

Define Ex Post Facto Laws

A

States and Federal Government cannot retroactively alter criminal law. Situations where this arises include:

  1. New Crimes
  2. Greater Punishment
  3. Increased Statute of Limitations
  4. Reduced Prosecutor’s Evidentiary Burden
47
Q

Define Bills of Attainder

A

Legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. Neither that the federal nor state legislature may pass these.

48
Q

What are the First Amendment Freedoms?

A

No Establishment of Religion
Free Exercise of Religion
Freedom of Expression

49
Q

Define Establishment Clause

A

Where a government program prefers one religion or religious sect over others, strict scrutiny analysis will apply.

50
Q

Where the legislation or government program contains no religious or sect preference, the Supreme court will follow the three part…

A

Lemon Test

  1. The statute must have a secular legislative purpose,
  2. The principal or primary effect or purpose must neither advance nor inhibit religion, and
  3. The statute must not foster an excessive government entanglement with religion.
51
Q

Religious activities conducted at public schools…

A

Generally violate the establishment clause because their primary purpose is to promote religion.

The following have been held invalid: prayer and bible reading, period of silence for prayer, posting 10 commandments, sponsoring a religious leader to lead a prayer at graduation. (state legislature may employ a chaplain to conduct an opening day prayer but a state judge may not conduct a daily prayer) prayer before football game.

52
Q

Define Free Exercise Clause…

A

A person’s religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief.

53
Q

When an individual’s conduct is motivated by religious belief, the state may regulate or prohibit the activity if…

A

The regulation is neutral in respect to religion and is of general applicability. (law regulating use of peyote)

54
Q

Where the government purposely interferes with particular conduct because it is dictated by religious beliefs…

A

strict scrutiny analysis will be applied and the law will be held unconstitutional unless it can be justified through proof of a compelling state interest served by narrowly tailored means.

55
Q

Define Freedom of Expression

A

Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people to peaceably assemble, and to petition the government for a redress of grievances.

14th Amendment makes freedom of speech applicable to states.

56
Q

Regulation of speech is acceptable if…

A

it passes strict scrutiny.

57
Q

Regarding Freedom of Speech, Government may neither…

A
  1. Censor all categories of speech nor
  2. Engage in content based discrimination among different categories of speech (even if that speech is offensive) with some exceptions.
58
Q

A law which regulates conduct but creates an incidental burden on speech is allowable if…

A
  1. The regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and
  2. The incidental restriction on speech is no greater that is essential to the furtherance of that interest.
59
Q

Examples of unprotected speech include…

A

Fighting Words
Hostile Audience Speech
Obscene Speech
Defamatory Speech

60
Q

Exception to no protection of speech that advocates violence or unlawful action…

A

Violent Inciting speech must be directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

61
Q

What are fighting words?

A

Words likely to incite an ordinary citizen to acts of immediate physical retaliation may be punished.

The speech must be more than annoying or offensive; there must be a genuine likelihood of imminent violence by a hostile audience.

Fighting words statutes are subject to facial invalidity if the conduct proscribed is vague or overbroad. Fighting words statutes designed to punish certain viewpoints are unconstitutional.

62
Q

For speech to be considered obscene, the following three part test must be satisfied:

A
  1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient (sexual) interest (national standard not used),
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
  3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value. National Standard used
63
Q

Constitutional restrictions apply to defamatory speech where…

A

The plaintiff is either a public official or a public figure, or where the defamatory statement involves a matter of public concern.

64
Q

When P is a private person and the subject of the statement is a matter of public concern…

A

The P need not prove actual malice, but must prove negligence about the truth or falsity of the statement.

65
Q

When the P is a public official or a public figure…

A

The P must prove that the state requirements of defamation plus actual malice, defined as knowledge of the falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

66
Q

Can a state prohibit commercial advertising?

A

Yes, a state may prohibit commercial advertising of matters that are illegal or advertising that is untruthful, misleading, or deceptive.

67
Q

Commercial speech is protected by 1st Amendment if…

A

It is not false or deceptive and does not relate to unlawful activity.

68
Q

Protected commercial speech can be regulated if:

A
  1. The regulation serves a substantial governmental interest,
  2. Directly advances the substantial governmental interest, and
  3. Not more extensive that is necessary to serve that interest.
69
Q

Time, Place, and Manner Regulations must be:

Public Forum

A
  1. Content neutral as to both subject matter and viewpoint,
  2. Narrowly tailored to serve an important government interest, and
  3. Leave alternative channels of communication open.
70
Q

Time, Place, and Manner Regulations must be:

Private Forum

A
  1. Viewpoint neutral and

2. Reasonably related to a legitimate interest.

71
Q

In general, an individual cannot be denied public employment based upon membership in a political organization unless…

A

the position is a high-level policy-making position.

Or when not high level position, if he is an active member of a subversive organization, such membership is with knowledge of the illegal aims of the organization, and the has a specific intent to further those illegal ends.

72
Q

Prior Restraint on Speech provides…

A

The government cannot suppress or restrain speech in advance of its publication or utterance. There is strong presumption against the constitutional validity of any system of prior restraint of expression.

73
Q

Freedom of the Press…

A

The press has no greater freedom to speak than any ordinary member of the general public does. Also, the press has no special right to access of government information. Newsperson can not refuse to testify in front of grand jury. Cable receives protection somewhere between broadcast tv and print.

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