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73 Cards in this Set

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Categories under Constitution's Protection of Individual Liberties?
1. Is there gov't action?
2. Application of Bill of Rights
3. Levels of scrutiny
The Constitution only applies to what?
Gov't action!
Private conduct need not comply with the Constitution.
But when may Constitutional norms apply to private conduct (Congress)?
Through Congress by statute:
1. 13th amendment- to prohibit private race discrimination
2. Commerce power can be used.
3. Congress CANNOT use Section 5 of the 14th to regulate private behavior.
Exceptions to general rule--Situations where private conduct must comply with the Constitution?
1. Public function exception
2. Entanglement exception
What is a public function?
The Constitution applies if a private entity is peforming a task that is traditionally or exclusively done by gov't.
This doesn't apply to utilities!
Entanglement exception?
Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity.
What are key examples under the entanglement exception?
1. Racially restrictive covenants
2. State action when gov't:
a. Leases premises to a racially discriminatory restaurant
b. Provides books to racially discriminatory schools
c. Private entity regulates interscholastic sports in a state.
3. No state action
a. Private school over 99% funded by gov't fires a teacher b/c of speech
b. When NCAA order suspension of basketball coach at state university
c. When private club with liquor license from state racially discriminates
Historically/technically, the BOR applies only directly to whom?
The federal gov't
However, how is the BOR applied to state and local gov'ts as well?
Through its incorporation into the DUE PROCESS clause of the 14th.
All BOR provisions have been deemed incorporated except:
1. 2nd- right to bear arms
2. 3rd-right to not have a soldier quartered in person's home
3. 5th-right to grand jury indictment in criminal case
4. 7th-right to jury in civil case
5. 8th-right against excessive fines
What are the different levels of scrutiny?
1. Rational basis test
2. Intermediate scrutiny
3. Strict scrutiny
What is the Rational Basis test and Burden of Proof?
Law upheld if "rationally related to a legitimate gov't purpose"
Burden on the challenger.
What is the Intermediate Scrutiny Test and Burden?
Burden on gov't.
Law upheld if 'substantially related to an important gov't purpose.'
Court looks to ACTUAL purpose, not a likely one.
Strict scrutiny test and burden?
Law upheld if "necessary to acheive a compelling gov't purpose."
Means must be necessary to achive objective-- no less restrictive alternative can achieve the same objective.
Burden on gov't
Which of the tests have the least restrict alternative analysis?
Just Strict Scrutiny.
Categories under Constitution's Protection of Individual Liberties?
1. Is there gov't action?
2. Application of Bill of Rights
3. Levels of scrutiny
The Constitution only applies to what?
Gov't action!
Private conduct need not comply with the Constitution.
But when may Constitutional norms apply to private conduct (Congress)?
Through Congress by statute:
1. 13th amendment- to prohibit private race discrimination
2. Commerce power can be used.
3. Congress CANNOT use Section 5 of the 14th to regulate private behavior.
Exceptions to general rule--Situations where private conduct must comply with the Constitution?
1. Public function exception
2. Entanglement exception
What is a public function?
The Constitution applies if a private entity is peforming a task that is traditionally or exclusively done by gov't.
This doesn't apply to utilities!
Entanglement exception?
Constitution applies if the gov't affirmatively authorizes, encourages, or facilitates unconstitutional activity.
What are key examples under the entanglement exception?
1. Racially restrictive covenants
2. State action when gov't:
a. Leases premises to a racially discriminatory restaurant
b. Provides books to racially discriminatory schools
c. Private entity regulates interscholastic sports in a state.
3. No state action
a. Private school over 99% funded by gov't fires a teacher b/c of speech
b. When NCAA order suspension of basketball coach at state university
c. When private club with liquor license from state racially discriminates
Historically/technically, the BOR applies only directly to whom?
The federal gov't
However, how is the BOR applied to state and local gov'ts as well?
Through its incorporation into the DUE PROCESS clause of the 14th.
All BOR provisions have been deemed incorporated except:
1. 2nd- right to bear arms
2. 3rd-right to not have a soldier quartered in person's home
3. 5th-right to grand jury indictment in criminal case
4. 7th-right to jury in civil case
5. 8th-right against excessive fines
What are the different levels of scrutiny?
1. Rational basis test
2. Intermediate scrutiny
3. Strict scrutiny
What is the Rational Basis test and Burden of Proof?
Law upheld if "rationally related to a legitimate gov't purpose"
Burden on the challenger.
What is the Intermediate Scrutiny Test and Burden?
Burden on gov't.
Law upheld if 'substantially related to an important gov't purpose.'
Court looks to ACTUAL purpose, not a likely one.
Strict scrutiny test and burden?
Law upheld if "necessary to acheive a compelling gov't purpose."
Means must be necessary to achive objective-- no less restrictive alternative can achieve the same objective.
Burden on gov't
Which of the tests have the least restrict alternative analysis?
Just Strict Scrutiny.
Types of Due Process?
Procedural and Substantive Due Process.
What's the first question to ask yourself under procedural due process?
Has there been a deprivation of life, liberty, or property?
When does a deprivation of liberty occur?
If there is a loss of a significant freedom provided by the Constitution or a statute.
When is there a deprivation of property?
It occurs if there is an entitlement and that entitlement is not fulfilled.
Entitlement: reasonable expectation to continue receipt of a benefit.
Before an adult is institutionalized, what is proper under procedural due process?
Notice and a hearing.
When a parent institutionalizes a child, what is proper under procedural due process?
Screening by a neutral fact-finder.
Harm to reputation by itself?
Not a loss of liberty.
Is gov't negligence sufficient for deprivation of due process?
No. Generally, there must be intentional gov't action or at least reckless action for liability to exist. But in emergency situations, the gov't is liable under due process only if its conduct 'shocks the conscience.'
What if the gov't fails to protect people from privately inflicted harms?
It doesn't deny due process!
What is the next question to ask if there is, in fact, a deprivation of life, liberty, or property?
What procedures are required?
What elements do you BALANCE if there is a deprivation of life, liberty, or property?
1. Importance of interest to individual
2. Ability of additional procedures to increase the accuracy of the fact-finding
3. The govt's interests
Before welfare benefits?
notice and hearing
Social security benefits?
Post-termination hearing
Student disciplined by public school?
Notice of charge and opportunity to explain
Before a parent's right to custody permanently terminated?
Notice and hearing
Punitive damages awards?
Instructions to jury and judicial review to ensure reasonableness.
US citizen detained as an enemy combatant?
Must be accorded due process.
Pre-judgment attachment or gov't seizure of assets?
Notice and hearing.
SUBSTANTIVE DUE PROCESS
Intro card
What is the definition of substantive due process?
Whether gov't has an adequate reason for taking away a person's life, liberty, or property.
How much protection does the Constitution provide for economic liberties?
MINIMAL protection.
What kind of test is used for laws affecting economic rights?
Rational basis test.
What is the Takings Clause?
The gov't may take private property for public use if it provides just compensation.
Types of takings?
1. Possessory taking - gov't confiscation or physical occupation of property
2. Regulatory taking - gov't regulation is a taking if it leaves no reasonable economically viable use of the property.
When are gov't conditions on development of property justified?
By a benefit that is roughly proportionate to the burden imposed; otherwise it's a taking.
When can a property owner bring a takings challenge?
When regulations existed at the time the property was acquired.
Is temporarily denying an owner use of property a taking?
No, as long as govt's action is reasonable.
Gov't may take private property for public use, but what is public use?
Gov't acts under reasonable belief that the taking will benefit the public. This is a very broad definition.
What is the measurement of just compensation for a Taking?
Loss to owner through reasonable market value.
What is the Contracts Clause?
No STATE shall impair the obligations of contracts.
The contracts clause applies only to whom?
State and local governments. NOT federal gov't.
State or local interference with private contracts must meet which scrutiny test?
Intermediate scrutiny.
1. Does the legislation substantially impair a party's rights under an existing K?
2. If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?
State or local interference with gov't contracts must meet which scrutiny test?
Strict scrutiny.
An ex post facto clause does not apply in civil cases. What is an ex post facto law?
A law that criminally punishes conduct that was lawful when it was done or that increases punishment for a crime after it was committed.
Retroactive civil liability must meet which scrutiny test?
Rational basis test.
What's a bill of attainder?
A law that directs the punishment of a specific person or persons without a trial.
What is PRIVACY?
A fundamental right protected under substantive due process.
What are the privacy rights?
Right to marry, procreate, custody of one's children, keep the family together, control the upbringing of one's children, purchase/use contraceptives, engage in private consensual homosexual activity, refuse medical treatment (but NOT to physician assisted suicide).
What are the rules today on the right to abortion? First rule?
Prior to viability, states can't prohibit abortions, but can regulate them so long as they don't create an undue burden on ability to obtain them.
After viability, states MAY prohibit abortions unless necessary to protect mother's health or life.
2nd rule on abortion?
Gov't has no duty to subsidize abortions or provide abortions in public hospitals.
3rd rule on abortion?
Spousal consent and notification laws are unconstitutional
4th rule on abortion?
Parental notice and consent laws for unmarried minors. A state can require parental notice/consent so long as it creates an alternative procedure (such as going before judge to get permission - if in child's best interests or mature enough to decide for herself.
On the right to refuse medical treatment?
1. Competent adults have the right to refuse medical treatment, even life-saving
2. State may require clear and convincing evidence that a person wanted treatment terminated before it ended
3. A state can prevent family members from terminating treatment for another.