The structure of the Const's protection of civil rights & civil liberties

Question 1

State action doctrine

Answer 1

only govt actors can violate const. (exception 13th Amend)

Question 2

What did Barron v. Baltimore decide?

Answer 2

none of the Bill of Rights specifically targeted at state govts. if the framers had intended this, they would have said as much

Question 3

P or I clause of 14th Amend

Answer 3

1. right to physically travel across state lines
2. right to be treated equally as a non-resident visitor
3. right to interstate migration

Question 4

What did the Slaughterhouse cases do?

Answer 4

case limited the P or I clause

Question 5

How were the Bill of Rights a conceptual turn?

Answer 5

Because the original constitution dod not protect civil rights

Question 6

What does the 14th Amend do?

Answer 6

Prohibits states from abridging the P or I of citizens. Blocks states from taking action that denies people’s rights

Question 7

Incorporation

Answer 7

makes amendments applicable to states and local govts

Question 8

Analysis of incorporated rights

Answer 8

one that is deeply rooted in our nation’s history or is fundamental to notions of ordered liberty

Question 9

What Amends are incorporated?

Answer 9

All except for 4: 3rd (quartering troops), 5th (grand jury indictment), 7th (jury for civil trials), 8th (guarantee against excessive fines)

Question 10

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.?

Answer 10

No, but they generally are.

Question 11

How do cts enforce individual rights?

Answer 11

if implicit in an ordered scheme of liberty and fundamental, needn’t be enumerated

Question 12

What does Duncan v. LA say?

Answer 12

Not all rights are incorporated “jot for jot”

Question 13

Analysis for determining whether an unenumerated right is const. protected

Answer 13

1. is it fundamental to our nation’s scheme of ordered liberty or deeply rooted in our nation’s history?
2. If so, apply strict scrutiny. Violation of right is presumably unconst.

Question 14

What are substantive rights?

Answer 14

unenumerated rights that have been incorporated

Question 15

What is the difference between P AND I, and P OR I?

Answer 15

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

Question 16

P or I analysis

Answer 16

compelling (strict) govt interest

narrowly tailored or necessary

Question 17

What did Lochner do?

Answer 17

case defined “right to contract” as a fundamental right

Question 18

Why was Lochner wrong?

Answer 18

1. did not show appropriate level of deference to leg (strict scrutiny)
2. right that ct protected is not enumerated
3. protected the wrong kind of right

Question 19

What did West Coast v. Parrish decide?

Answer 19

right to contract is not protected by Const. Basically overturned Lochner

Question 20

Post-Lochner level of scrutiny applied to due process challenges to ordinary economic regulation

Answer 20

rational basis review

Question 21

Footnote 4 in Carolene Products

Answer 21

where cts may interfere with legislature

Question 22

3 circumstances in which cts may interfere w/ legislature

Answer 22

1. when law is prohibited by const.
2. when law interferes w/ proper functioning of the political process
3. when the law is directed at a discrete and insular minority

Question 23

strength of govt interest (strongest to weakest)

Answer 23

1a. compelling (strict)
1b. necessary (strict)/ substantial relationship
2a. legitimate (deferential)
2b. rational (deferential)

Question 24

Saenz v. Roe

Answer 24

case says state may not distinguish between classes of citizens based on the length of residence

Question 25

Are financial concerns sufficient for states to discriminate against non-residents?

Answer 25

No. must be compelling interest and apply strict scrutiny

Question 26

what is the means-end fit?

Answer 26

means necessary and narrowly tailored to meet ends?

Question 27

14th amendment

Answer 27

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

Question 28

Article 4

Answer 28

§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

Question 29

14th Amend

Art 4

Answer 29

P or I–resident duration

P and I–resident v. nonresident

Question 30

Full faith and credit

Answer 30

Art IV, §1– K and laws passed in other states are valid in every other state

Question 31

Art IV, §2

Answer 31

gives citizens the right to pass freely from state to state and affords them all the P and I states recognize for residents

Question 32

Examples of permissible discrimination of nonresidents

Answer 32

voting right, practicing law or medicine, qualifying for rediced tuition at state colleges and universities

Question 33

What does §5 of 14th Amend authorize C to do?

Answer 33

permits C to enact laws that are congruent and proportional to the enforcement of §1’s prohibitions

Question 34

Clauses within §1 of 14th Amend

Answer 34

• definition of persons protected under Amend
• P or I clause
• Equal protection clause
• Due Process Clause

Question 35

What does the Due Process do?

Answer 35

Restricts/constrains state power

Question 36

Where is the Due Process Clause found?

Answer 36

5th Amend–applies to fed govt

14th Amend–applies to states

Question 37

Procedural Due Process

Answer 37

ensures that the fed and state govts will follow certain procedures before depriving any person of “life, liberty, or property”

Question 38

Substantive Due Process

Answer 38

ensures that the fed and state govts will not deprive any person of a fundamental right of “life, liberty, or property.” Not necessarily enumerated