Levels of Scrutiny Flashcards
What are the constitutional restrictions on power over individuals?
Other than the Thirteenth Amendment ban on slavery (see below), the Constitution regulates only government action, not private action. Also, note that the Constitution sets the minimum threshold of rights. States generally are free to grant broader rights than those granted by the United States Constitution.
What is the Bill of Rights?
By its terms, the Bill of Rights (the first 10 Amendments to the United States Constitution) limits federal power. However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states. Exceptions: The most notable exceptions to incorporation are: (1) the FifthAmendment’s prohibition of criminal trials without a grand jury indictment and (2) the Seventh Amendment’s right to a jury trial in civil cases.
What does the thirteenth amendment do?
The Thirteenth Amendment prohibits slavery and involuntary servitude, which the Court has defined as compulsion of labor through the use or threat of physical or legal coercion. Under the Thirteenth Amendment’s Enforcement Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).
What do the fourteenth and fifteenth amendments do?
The Fourteenth Amendment prevents states from depriving any person of life, liberty, or property without due process and equal protection of law. The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or color. Generally, private conduct is not prohibited by these amendments—only where some state action is involved. (Purely private conduct may be prohibited, however, on a separate constitutional basis, such as the Commerce Clause.)
What is the scope of congressional power under the fourteenth amendment?
Section 5 of the Fourteenth Amendment gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by the Fourteenth Amendment. Under Section 5, Congress may not expand existing constitutional rights or create new ones—it may only enact laws to prevent or remedy violations of rights already recognized by the courts. To adopt a valid law, Congress must point to a history or pattern of state violation of such rights and adopt legislation that is congruent and proportional (that is, narrowly tailored) to solving the identified violation.
What are the rights of national citizenship?
Congress has inherent power to protect rights of citizenship under Section 5 of the Fourteenth Amendment (that is, to enforce the guarantee of the “privileges or immunities of citizens of the United States”).
What is the state action requirement?
Because the Constitution generally applies only to governmental action, to show a constitutional violation “state action” must be involved. Note: This concept applies to government and government officers (if they’re acting officially, even if unlawfully) at all levels—local, state, or federal. Note, however, that state action can be found in actions of seemingly private individuals who:
• Perform exclusive public functions, or
• Have significant state involvement
What are the exclusive public functions?
Activities that are so traditionally the exclusive prerogative of the state are state actions no matter who performs them.
What happens when there is significant state involvement?
State action also exists wherever a state affirmatively facilitates, encourages or authorizes acts of discrimination by its
citizens, or where there is sufficient entwinement between the state and private party
What are the different levels of scrutiny?
The following standards of review are used by the Court when reviewing challenges to governmental acts under the guarantees of substantive due process and equal protection,
as well as the First Amendment rights: Rational Basis, Intermediate Scrutiny, Strict Scrutiny.
What is rational basis?
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard: The law is upheld
if it is rationally related to a legitimate government purpose. This is a very easy standard to meet; therefore the law is
usually valid—unless it is arbitrary or irrational.
a. Burden of Proof
The person challenging the law has the burden of proof.
b. Classifications that Are Not Suspect or Quasi-Suspect
The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.
what is intermediate scrutiny?
Regulations involving quasi-suspect classifications (that is, gender and legitimacy) are reviewed under the intermediate
scrutiny standard: The law is upheld if it is substantially related to an important government purpose.
a. Burden of Proof
It is unclear who has the burden of proof under intermediate scrutiny. Usually, courts place the burden on the government.
What is strict scrutiny?
Regulations affecting fundamental rights (for example, interstate travel, voting, and First Amendment rights) or involving suspect classifications (that is, race, national origin, and alienage) are reviewed under the strict scrutiny standard: The law is upheld if it is necessary (that is, the least restrictive means) to achieve a compelling government purpose. This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated—especially if there is a less burdensome alternative to achieve the government’s goal. a. Burden of Proof
The government has the burden of proof under strict scrutiny
