State Action and Due Process Flashcards
True or false: The 13th Amendment applies to the private and public context
True. The abolishment of slavery flatly band slavery and involuntary servitude
How is state action defined for purposes of the 14th Amendment?
government action (state or local)
In what situations where government cannot be involved and determined “significant state involvement” in a private discrimination context?
1) Government cannot facilitate private discrimination.
2) Government cannot profit private discrimination
3) Government cannot enforce a private agreement to discriminate.
Note: Government is not required to prevent private discrimination.
What is the general measurement to determine in which state action is constitutional?
Generally, government acts are constitutional, so long as its own conduct is neutral and even-handed
True or false: State action is required to show a constitutional violation if anti-discrimination law exists
False.
Anti discrimination statutes: State action is required to show a violation of the constitution BUT
State action is irrelevant if there is anti-discrimination legislation in place.
Procedural process is concerned with the taking of what?
Life, liberty, and property
True or false: the death penalty require procedural due process
True. Taking of life
True or false: Injury to reputation requires procedural due process
False.
Taking of liberty would include physical confinement, physical injury, and restriction on legal rights
When does a person have a property interest in their government job?
When there’s a legitimate entitlement to continued enjoyment of the job or benefit.
A mere expectation of continued employment or benefit does not suffice.
When are government jobs entitlements?
Government jobs are entitlements only when the government says so—such as by providing a contractual term or discharge only “for cause.”
Does random negligence by a state employee constitute deprivation?
No. Deprivation: Notice and a hearing are not required when there is an accident.
Requires an intentional taking of life, liberty, or property
What three factors do courts balance to determine what sort of procedural due process is appropriate?
1) Individual interest at stake (life, liberty, property)
2) Value of the procedure protecting interest
3) Government’s interest in efficiency and cost
What are examples of when a hearing must occur before deprivation?
Terminating welfare benefits; non-emergency revocations of a driver’s license
When can a hearing occur after a deprivation of life, liberty, or property?
When the hearing is fair and prompt.
Ex: Terminating disability benefits; disciplinary suspension from a public secondary school
Public employees fired for “just cause” must be given…? Unless?
1) opportunity to be heard prior to termination
2) Significant reason not to keep the employee
If there is a significant reason, discharge can come first with hearing that is prompt and fair
Strict Scrutiny: What is it? When is it applied?
Is the law necessary for achieving a compelling state interest?
Looking for the least restrictive means when there’s
Suspect classification or taking of a fundamental right.
Intermediate Scrutiny: What is it? When is it applied?
Is the law substantially related to an important government interest?
Applies for cases of legitimacy and gender. Only used for equal protection claims.
Rational basis: What is it? When is it applied?
Is the law rationally related to a legitimate state interest?
Applies to all other tests
Who bears the burden for strict scrutiny? For rational basis?
Strict scrutiny: gov burden
Rational basis: challenger
The difference b/t equal protection and due process is…?
If a law denies a fundamental right to everyone, it violates due process
If a law denies a fundamental right to certain classifications, it violates due process
List at least three fundamental rights
- Travel
- Voting and ballot access
- Privacy
- Right to bear arms
Can states impose reasonable residency requirements for political participation and government benefits?
Yes, most are 30-90 days. One year is generally too long, except for in-state tuition and grounds for divorce.
Can states impose taxes that differ based on length of residency?
No. All residents have the right to be treated equally.
Is Voting is a fundamental right for all residents or citizens age 18+?
Citizens = privileges, and protections to individuals within a country and state. Citizenship is permanent.
BUT but residency requirements for voting are permitted. Congress = presidential elections. States = everything else.
Are poll taxes constitutional?
No, they burden the fundamental right to vote.
Can states pose requirements to be put on a ballot?
Yes, so long as candidates can reasonably comply
What rights fall under privacy and protected under the constitution?
Marriage, Contraception, Sexual Intimacy, abortion (?), parenting, family relationships, obscene materials, refusal of medical attention
NOT the right to commit suicide
What is the test for the right to bear arms?
Historical tradition = only if they fit the history of the second amendment
Can the government require individuals who wish to get a license for a gun to show a special need for self-defense?
No. everyone has the right to bear arms.
