Con Law -- Individual Liberties

Front 1

Individual Liberties -- State Action Doctrine

Back 1

Const applies to all levels of government conduct; private conduct does not comply w/ Constitution

Congress may statutorily regulate private conduct using Constitutional standards

Front 2

Individual Liberties -- Exceptions to State Action Doctrine
(2)

Back 2

1) Public function exception (task traditionally done by government)
2) Entanglement exception (gov furtherance of unconstitutional activity)

Front 3

Individual Liberties -- Application to Federal and State governments

Back 3

Applies directly only to federal governments

AND states through Due Process Clause of Fourteenth Amendment

Front 4

Individual Liberties -- Exceptions to Application to Federal and State governments
(4)

Back 4

1) 3rd Amendment (quartering soldiers in home)
2) 5th Amendment right to grand jury indictment in criminal cases
3) Seventh Amendment right to jury trial in civil cases
4) Eight Amendment right against excessive fees

Front 5

Individual Liberties -- Rational Basis Scrutiny

Back 5

Law upheld if rationally related to ANY legitimate government purpose

Challenger has BURDEN to prove no rational basis

Front 6

Individual Liberties -- Intermediate Scrutiny

Back 6

Law upheld if substantially related to an important government purpose

Gov has BURDEN to prove substantially related

Front 7

Individual Liberties -- Strict Scrutiny

Back 7

Law upheld if necessary to achieve a compelling government purpose

Means must be narrowly tailored, no less restrictive alternative available

Gov has BURDEN to provide necessary (but almost always fatal)

Front 8

Individual Liberties -- Procedural Due Process

Back 8

Concerns deprivation of life, liberty, or property

Deprivation = loss of significant freedom OR entitlement that is not fulfilled

Front 9

Individual Liberties -- Procedural Due Process -- Entitlements

Back 9

When expectation of a continued receipt of a benefit

Front 10

Individual Liberties -- Due Process -- Required Procedures


(3) Part Balancing Test

Back 10

1) Importance of interest to individual
2) Ability of additional procedures to increase accuracy of fact-finding
3) Gov's interests

Front 11

Individual Liberties -- Procedural Due Process -- Examples

(7)

Back 11

1) Notice of termination of welfare of benefits

2) Post-termination hearing for SS benefits

3) Notice of Charges and Opportunity to Explain when student disciplined by a public school

4) No DP needed for corporal punishment in school

Notice - Child Custody

5) Jury Instructions in Punitives -- against excessive

6)DPC when charged w/ being enemy combatance

7) Attachment of pre-judgment obligations UNLESS exigent circs, property seized in illegal activity even if owner innocent

Front 12

Individual Liberties -- Economic Liberties

Back 12

Rational basis only for government action regulating economic activity

Front 13

Individual Liberties -- Economic Liberties -- Takings Clause

(3)

Back 13

Government may take private property for public use if it provides just compensation

1) Taking (Possessory/Regulatory)
2) For Public Use
3) Just Compensation

Front 14

Individual Liberties -- Economic Liberties -- Contracts Clause
(4)

Back 14

No state shall impair obligations of contracts

1) Applies only to state or local govs
2) PRIVATE K interference --> intermediate scrutiny2.0 (substantial impairment, r/s and narrowly tailored means of promoting important and legitimate public interest)
3) PUBLIC Ks - strict scrutiny

4) Ex post facto law -- criminalization of activity after it was committed
RETROACTIVE CIVIL LIABILITY --> rational basis only

Front 15

Individual Liberties -- Privacy
(10 Examples)

Back 15

Umbrella that ecompasses fundamental right -- STRICT SCRUTINY

Examples: 1) Right to marry
2) Right to procreate
3) Right to custody of one's children
4) Right to keep family together (if related to each other)
5) Right to control upbringing of one's children
6) Right to purchase and use contraceptives
7) ***Right to abortion (see pgs. 28-29 in Lecture Notes)***
8) Private consensual homosexual activity
9) Right to refuse medical treatment
10) NO RIGHT TO PHYSICIAN-ASSISTED DEATH

Front 16

Individual Liberties -- Second Amendment

Back 16

Right to bear arms, including in their home for the sake of security

Applies to states and local governments

level of scrutiny UKNOWN

Front 17

Individual Liberties -- Right to Travel

Back 17

Protected by both Privileges and Immunities Clause & Equal Protection Clause (tho EPC better)

State-State --> Strict Scrutiny
International Travel --> Rational Basis

Durational reqs --> Strict Scrutiny (like 50 days)

Front 18

Individual Liberties -- Right to Vote

Back 18

Franchise rights --> Strict Scrutiny

Regulation of electoral process --> Balance desirable

One person-one vote --> all districts must be about the same in population

At-large --> Constitutional UNLESS proof of discriminatory purpose

4) Race drawing --> Strict Scrutiny

5) Counting "uncounted" votes without standards in a presidential election --> violates EPC

Front 19

Individual Liberties -- Education

Back 19

Not a fundamental right