Individual Rights

Question 1

What is the Thirteenth Amendment?

Answer 1

provides that neither slavery nor involuntary servitude shall exist in the United States

Question 2

Does this require state action? Can we use this against anyone who uses a badge of slavery?

Answer 2

NO. There is no language limiting its effects to governmental action; thus it is applicable even to private action

Question 3

What is involuntary servitude?

Answer 3

forcing someone to perform work whether compensated or not through the use or threatened use of physical injury or restraint (such as imprisonment), or through the use or threatened use of legal sanction.
Physcological or other forms of coercion are inadequate

Question 4

What is not involuntary servitude?

Answer 4

compulsory military service, jury duty, convicted prisoners work, medical scholars required to do pro bono

Question 5

What is the Congressional power underneath the thirteenth amendment?

Answer 5

Congress has the power to adopt appropriate legislation, and the Supreme court will uphold legislation proscribing almost any private racially discriminatory act that can be characterized as a badge or incident of slavery

Question 6

What are examples of legislation under the thirteenth?

Answer 6

prohibiting private parties from refusing to rent or sell to a person based on race

prohibiting private, nonsectarian schools from refusing to admit nonwhite children

prohibiting a private employer from discriminating in hiring on the basis of race

Question 7

What is the Fourteenth Amendment?

Answer 7

this prohibits states (not the federal government or a private person) from depriving any person of life, liberty, or property without due process and equal protection of the law.

Question 8

Is state action required?

Answer 8

yes. this applies only if there is state or local government action. This also applies to a government officer, or private individual whose behavior meets the requirements for state action.

Question 9

What is the scope of congressional power under the 14th?

Answer 9

section 5 of the fourteenth is an enabling clause giving congress the power to adopt appropriate legislation to enforce the rights and guarantees provided under the Fourteenth A.

Question 10

What must congress do to adopt a valid law under the 14th?

Answer 10

Congress must point to a history or pattern of state violation of such rights and adopt legislation that is CONGRUENT AND PORPORTIONAL to solving the identified violation. However, Congress will have more power to act if there is a type of discrimination going on such as race, which needs hightened scrutiny.

Question 11

Examples of valid laws under the 14th?

Answer 11

Failed Law - the americans disability act- Congress tried to pass a law that prohibited discrimination against disabled persons in hiring practices and required states to make accommodations for disabled employees. SUP Court said no. They did not identify a history or pattern. Also the law is overly inclusive so not porportional. Disability is usually a RB test

SUP court also says you cannot pass law to restrict age discrimination by state employers.

HOWEVER, Congress did have the power under Section 5 the enabling clause to provide that state governments can be sued for violating some provisions of the ADA which prohibited state and local governments from discriminating against disabilities in government programs or services when the discrimination involves access to justice.

Question 12

What is the Fifteenth Amendment?

Answer 12

it is a limitation on both the states and the federal government. it prohibits them from denying any citizen the right to vote on account of race or color. This is an enabling clause allowing Congress to adopt legislation to protect the right to vote from discrimination

Question 13

Limit to Fifteenth?

Answer 13

Congress has to have an EXTRAORDINARY JUSTIFICATION to adopt legislation requiring some, but not all, states to obtain federal approval before changing any voting law.

Question 14

Commerce Clause and Discrimination

Answer 14

Congress has used the commerce clause to limit the power of individuals over other individuals by adopting legislation barring private racial discrimination in activities connected with interstate commerce.

ex. Civil Rights Act of 1964 barring discrimination in places of public accommodations are proper and valid exercises of commerce clause.

Any business that is open to interstate travelers or that uses products shipped in interstate commerce is covered.

Question 15

What is state action?

Answer 15

action taken by the state, government officials or officials acting under the color of state law, private individuals who perform exclusive public functions, or have significant state involvement.

ex. giving a private individual land is not sufficient for state involvement.

Question 16

What must state action be?

Answer 16

both a traditional and exclusive government function such as running a town and running a election for public office. an affirmative action by the state that facilitates, encourages, or authorizes acts of discriminations. (ex. sanction by state) (ex. state court enforcement of restrictive covenants prohibiting sale or lease of property to blacks constitutes state action). (ex. Preemptory Challenges)

Question 17

Are states required to outlaw discrimination?

Answer 17

NO, just can’t make laws encouraging it.

Question 18

What is the Contract Clause?

Answer 18

limits the ability of states to enact laws that retroactively impair contract rights. It does not affect contracts not yet made.

Question 19

Is this applicable to the federal or state government?

Answer 19

State legislation not court decisions

Question 20

What kind of impairments does the K cause prohibit?

Answer 20

substantial impairments ex. destruction of all or most of a persons rights under a contract.

Question 21

What is the test for legislation under the k clause?

Answer 21

1) does the legislation substantially impair a party’s rights under an existing k? if it does not, the legislation is valid under the k clause, if it does it is only valid if
2) serves an important and legitimate public interest
3) is a reasonable and narrowly tailored means of promoting interest.

Question 22

What if it is a public contract?

Answer 22

receives strict scrutiny, especially if legislation reduces the contractual burden on the state. there is no substantial impairment if the state reserved the power to revoke, alter or amend.

Question 23

What is a ex-post facto law?

Answer 23

legislation that retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for a past activity. the effect has to be punitive. not an example is requiring sex offenders to make their information public.

Question 24

What is a bill of attainder?

Answer 24

a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct.

Question 25

What is Procedural Due Process?

Answer 25

the DPC clauses of the fifth (federal government) and the fourteenth (states) provide that the government shall not take a persons life, liberty, or property without due process of law. Due process contemplates fair process or procedure which requires at least an opportunity to present objections to the proposed action to a fair, neutral decision maker (not necessarily a judge).

Question 26

What is an example where due process is not violated?

Answer 26

adopting general requirements for obtaining a drivers license a hearing is not required.

Question 27

What is a deprivation?

Answer 27

a deprivation of life, liberty, or property requires more than a mere denial of certain kinds of remedies. Only when the government provides no remedy or inadequate remedies may a deprivation result.

Question 28

Can a judge preside if he has bias?

Answer 28

Hell no, judge has to recuse himself when he has actual bias or when there is a serious risk of actual bias. ex. he has a direct, personal, or pecuniary interest in the case.

Question 29

When does a deprivation of liberty occur?

Answer 29

when a person loses significant freedom of action or is denied a freedom provided by the Constitution or a statute.
ex. commitment to mental institution, injury to reputation, exercise of fundamental constitutional rights such as right to speak, travel, vote, and associate.

Question 30

What about Property?

Answer 30

includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for (or a unilateral expectation of) the benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state and federal law
ex. public education, welfare benefits, continued public employment.

Question 31

What type of process is required?

Answer 31

The court will weigh

1. the importance of the individual interest involved
2. the value of specific procedural safeguards to that interest, and
3. the governmental interest in fiscal and administrative efficiency

Question 32

Must the person have notice before interest is deprived?

Answer 32

Yes, notice and have an opportunity to respond before termination of the interest. the court may allow a post-termination hearing in situations where a pre-termination hearing is highly impracticable.

Question 33

Welfare benefits?

Answer 33

need the evidentiary hearing prior to termination

Question 34

Disability benefits?

Answer 34

No prior evidentiary hearing is required as long as there is notice, an opportunity to respond in writing and a subsequent evidentiary hearing.

Question 35

Public Employment?

Answer 35

If a public employee is removed for cause then there must be notice and a pre-termination opportunity to respond. no need for pre-hearing but need the subsequent hearing. If significant reason, suspended without pay.

Question 36

Public education?

Answer 36

Suspension? notice and opportunity to explain

Dismissal? no prior evidentiary hearing is required

Question 37

Creditors Remedies?

Answer 37

notice and a hearing prior to issuance.

Question 38

Drivers license?

Answer 38

state generally must afford a prior hearing before a license is suspended or terminated.

Question 39

Parental Status Litigation and Hearing?

Answer 39

Paternity Actions
- allows paternity to be established in a support proceeding brought by a mother or child by a perponderance of evidence
Hearings fro Men who seek to est. paternity
- unmarried father living with mom will be protected by due process
-father who never tried to est. paternity has no right to notice prior to childs adoption

Question 40

Detention of a Citizen Enemy Combatant?

Answer 40

a citizen held in the US as an enemy combatant have a meaningful opportunity to contest the factual basis for his detention before a neutral decision maker.

Question 41

Seizing real property?

Answer 41

Procedural DP limits the governments ability to seize property allegedly subject to forfeiture. The government must provide the owner of real property notice and an opportunity for some type of hearing prior to seizing real property. not applicable to personal property.

Question 42

Can this be waived?

Answer 42

only if it is voluntary and done knowingly

Question 43

What is the taking clause?

Answer 43

The fifth amendment prohibits governmental taking of private property for public use without just compensation.applicable to the states through the Fourteenth A.

Question 44

What is substantive Due Process?

Answer 44

guarantees that laws will be reasonable and not arbitrary. If a law limits the liberty of all persons to engage in some activity it is a due process question. ex. prohibiting all persons from purchasing contraceptive devices, refusal to have any school be publicly funded

Question 45

What is Equal Protection?

Answer 45

Where a law treats a person or class of persons differently from others, it is an equal protection question. ex. law prohibits unmarried ppl from having access to contraceptives, state law that established separate schools for children of different races.

Question 46

What standard will the court apply?

Answer 46

Strict scrutiny if it is a suspect class or fundamental right
intermediate scrutiny if it is based on gender or legitimacy
Rational Basis is used whenever the other standards are not applicable.

Question 47

What is Strict Scrutiny?

Answer 47

a law will be upheld only if it is necessary to achieve a compelling government purpose., or “narrowly tailored to achieve a compelling governmental purpose.” the burden of proof is on the government.

Question 48

What gets applied under Strict Scrutiny?

Answer 48

1. Right to travel
2. Privacy
3. Voting
4. All First Amendment Rights

Question 49

What is Rational Basis Standard?

Answer 49

a law will be upheld if it is rationally related to a legitimate interest and the burden of proof is on the challenger.

Question 50

What gets applied under Rational Basis?

Answer 50

1. Business and labor regulations
2. Taxation
3. Lifestyle - drugs, hair
4. Zoning
5. Punitive Damages
   - punitive should not exceed 9 times the compensatory damages.