The structure of the Const's protection of civil rights & civil liberties Flashcards
State action doctrine
only govt actors can violate const. (exception 13th Amend)
What did Barron v. Baltimore decide?
none of the Bill of Rights specifically targeted at state govts. if the framers had intended this, they would have said as much
P or I clause of 14th Amend
- right to physically travel across state lines
- right to be treated equally as a non-resident visitor
- right to interstate migration
What did the Slaughterhouse cases do?
case limited the P or I clause
How were the Bill of Rights a conceptual turn?
Because the original constitution dod not protect civil rights
What does the 14th Amend do?
Prohibits states from abridging the P or I of citizens. Blocks states from taking action that denies people’s rights
Incorporation
makes amendments applicable to states and local govts
Analysis of incorporated rights
one that is deeply rooted in our nation’s history or is fundamental to notions of ordered liberty
What Amends are incorporated?
All except for 4: 3rd (quartering troops), 5th (grand jury indictment), 7th (jury for civil trials), 8th (guarantee against excessive fines)
Do the breadth and depth of protections in the Bill of RIghts have to be applied by states in the same way as by fed govt.?
No, but they generally are.
How do cts enforce individual rights?
if implicit in an ordered scheme of liberty and fundamental, needn’t be enumerated
What does Duncan v. LA say?
Not all rights are incorporated “jot for jot”
Analysis for determining whether an unenumerated right is const. protected
- is it fundamental to our nation’s scheme of ordered liberty or deeply rooted in our nation’s history?
- If so, apply strict scrutiny. Violation of right is presumably unconst.
What are substantive rights?
unenumerated rights that have been incorporated
What is the difference between P AND I, and P OR I?
P and I– Art. IV: substantial (intermediate) govt interest, substantially related to that interest
P or I–14th Amend: compelling (strict) govt interest, narrowly tailored or necessary to that interest
P or I analysis
compelling (strict) govt interest
narrowly tailored or necessary
What did Lochner do?
case defined “right to contract” as a fundamental right
Why was Lochner wrong?
- did not show appropriate level of deference to leg (strict scrutiny)
- right that ct protected is not enumerated
- protected the wrong kind of right
What did West Coast v. Parrish decide?
right to contract is not protected by Const. Basically overturned Lochner
Post-Lochner level of scrutiny applied to due process challenges to ordinary economic regulation
rational basis review
Footnote 4 in Carolene Products
where cts may interfere with legislature
3 circumstances in which cts may interfere w/ legislature
- when law is prohibited by const.
- when law interferes w/ proper functioning of the political process
- when the law is directed at a discrete and insular minority
strength of govt interest (strongest to weakest)
1a. compelling (strict)
1b. necessary (strict)/ substantial relationship
2a. legitimate (deferential)
2b. rational (deferential)
Saenz v. Roe
case says state may not distinguish between classes of citizens based on the length of residence
Are financial concerns sufficient for states to discriminate against non-residents?
No. must be compelling interest and apply strict scrutiny
what is the means-end fit?
means necessary and narrowly tailored to meet ends?
14th amendment
i. No states shall make or enforce any law which shall abridge the privileges or immunities of citizens
ii. Nor deprive any person of life, liberty, or property without due process of law
iii. Nor deny to any persons within its jurisdiction the equal protection of the laws
iv. Section 5 power to enforce amendment – power to enforce by appropriate legislation the provisions of this article
Article 4
§1, Full faith and credit
§2, Privileges and immunities of citizens
1. the citizens of each state shall be entitled to all privileges and immunities of citizens of the several states
14th Amend
Art 4
P or I–resident duration
P and I–resident v. nonresident
Full faith and credit
Art IV, §1– K and laws passed in other states are valid in every other state
Art IV, §2
gives citizens the right to pass freely from state to state and affords them all the P and I states recognize for residents
Examples of permissible discrimination of nonresidents
voting right, practicing law or medicine, qualifying for rediced tuition at state colleges and universities
What does §5 of 14th Amend authorize C to do?
permits C to enact laws that are congruent and proportional to the enforcement of §1’s prohibitions
Clauses within §1 of 14th Amend
- definition of persons protected under Amend
- P or I clause
- Equal protection clause
- Due Process Clause
What does the Due Process do?
Restricts/constrains state power
Where is the Due Process Clause found?
5th Amend–applies to fed govt
14th Amend–applies to states
Procedural Due Process
ensures that the fed and state govts will follow certain procedures before depriving any person of “life, liberty, or property”
Substantive Due Process
ensures that the fed and state govts will not deprive any person of a fundamental right of “life, liberty, or property.” Not necessarily enumerated
