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51 Cards in this Set
- Front
- Back
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Thirteenth Amendment
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Applies to private conduct and state conduct
Only slavery violates the 13th Amendment Congress can adopt laws under 13th A that prohibit private race discrimination |
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Commerce Clause
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Congress can prohibit private establishments from discriminating based on race
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Laws prohibiting private discrimination based on race
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Can be adopted under
(1) the Thirteenth Amendment (2) The Commerce Clause NOT 14th A, § 5 |
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Fourteenth Amendment, § 5
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Congress can regulate state and local govts (NOT private behavior)
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Where Private Behavior Involves State Action
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(1) Public functions exception (private entity performs a task traditionally exclusively done by govt, like running a city)
(2) Govt affirmatively authorizes, encourages or facilitates unconstitutional activity |
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Examples of State Action
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(1) Courts cannot enforce racially restrictive covenants
(2) Govt cannot lease premises to restaurant that racially discriminates (3) State cannot provide free books to private schools that racially discriminate |
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No State Action
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Constitution doesn't reach
(1) Private school 99% funded by federal govt (2) NCAA order (3) Private establishment with govt license |
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Provisions of Bill of Rights that are Not Incorporated
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3rd A right not to have soldier quartered in home
5th A right to grand jury indictment in criminal cases 7th A right to jury trials in civil cases 8th A right against excessive govt fines |
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Rational Basis Test
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Law is upheld if rationally related to legitimate govt purpose
Challenger has burden of proof |
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Intermediate Scrutiny
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Law is upheld if substantially related to important govt interest
Govt has burden of proof |
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Strict Scrutiny
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Law will be upheld if necessary to achieve compelling govt purpose
Least restrictive means must be used Govt has burden of proof |
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Procedural due process
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Procedures govt must follow to take away someone's
(1) life (2) liberty (3) property |
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Was there a deprivation of life, liberty or property?
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Liberty: Loss of significant freedom provided by Constitution or a statute
Property: Failure to fulfill an entitlement (reasonable expectation of a benefit) Requisite level of fault by govt: intentional or reckless (NOT mere negligence) |
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Emergency situations & Due process
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Govt liable only if its conduct shocks the conscience
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Termination of welfare benefits
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Requires notice and hearing
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Permanent termination of parental rights
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Requires notice and hearing
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Institutionalization of an adult (not emergency)
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Requires notice and hearing
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Termination of social security disability benefits
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Post-termination hearing
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Harm to reputation
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NOT a loss of liberty
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Punitive damage awards
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Require
(1) jury instructions to guide discretion (2) Judicial review to ensure award is reasonable Factors to determine whether reasonable (1) was D's conduct reprehensible? (2) difference between amount of punitive damage award and criminal/civil penalties allowed for the same type of misconduct (3) discrepancy between actual or potential harm to P and punitive damage award |
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Non-citizen held as enemy combatant
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Entitled to challenge continued detention
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US citizen facing criminal charges in foreign country
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Can file habeas corpus petition seeking review of detention in federal court
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Judicial bias
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Judge must recuse if there is substantial risk of actual bias
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Procedural due process analysis
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(1) Liberty or property right?
(2) Deprivation by govt? (3) Was due process afforded? |
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How to Decide Whether Process Was Sufficient
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Balance
(1) Importance of interest to individual (2) Ability of additional procedures to increase accuracy of fact finding (3) Government's interests (efficiency, $) |
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Substantive Due Process
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Does the govt have an ADEQUATE REASON for taking away person's life, liberty or property
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Economic liberties
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Rational basis test (min wage laws, consumer protection)
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Takings Clause: Is there a Taking?
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(1) Possessory Taking: Govt confiscation or physical occupation of property (e.g., require apt owners to install cable boxes)
(2) Regulatory Taking: Govt regulation leaves no reasonable economically viable use of the property (3) Conditions on Development of Property: benefit is not roughly proportionate to the burden imposed (4) Temporarily denying an owner use of property if Govt's action is UNreasonable |
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Is Taking for Public Use?
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Required
Taking is for Public Use as long as Govt acts out of a reasonable belief that the taking will benefit the public If not for public use, no taking is allowed |
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Taking: Is Just Compensation Paid
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Look at reasonable market value of property at time of taking
Gain to Govt is irrelevant |
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Contracts Clause
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Applies only to state or local interference with already existing contracts
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When Can State Substantially Interfere with PRIVATE Contract?
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Law must be
(1) a reasonably and narrowly tailored means of (2) promoting an important and legitimate public interest |
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When Can State Substantially Interfere with GOVT Contract?
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Law must be necessary to promote a compelling state interest
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Ex Post Facto Clause
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Neither federal nor state govts can adopt Ex Post Facto Clause (only applies to criminal liability)
Law that (1) criminally punishes conduct that was lawful when done or (2) increases punishment for crime after it was committed or (3) makes it easier to prove commission of crime after it was committed |
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Privacy rights (fundamental rights)
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Right to marry
Right to procreate Right to custody of one's children Right to keep family together (extended family) Right to control children's upbringing Right to buy and use contraceptives Right to abortion Right to engage in private same-sex consensual activity |
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Right to abortion before viability
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(1) states cannot prohibit abortions b4 viability
(2) states can regulate abortions as long as they do not create an undue burden on ability to obtain an abortion |
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NOT undue burden
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24 hour waiting period
requirement that abortions be performed by licensed physicians prohibition on partial birth abortions Parental notice and consent laws (but judge must be able to approve the abortion by finding it would be in minor's best interests, or that she is mature enough to decide for herself) |
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After viability
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states may prohibit abortions, except where necessary to protect woman's life or health
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Subsidizing abortions
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Govt never required to pay for abortions
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Examples of undue burdens
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Spousal consent and notification laws
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Refusing medical treatment
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Competent adults have right to refuse medical treatment
Even if treatment would save life But state can require clear and convincing evidence that a person wanted treatment terminated State can prevent family members from terminating treatment for another NO constitutional right to physician assisted suicide |
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Second Amendment
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Individuals have a right to have weapons for self defense (level of scrutiny is unclear)
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Consensual homosexual activity
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Individuals have right to engage in private, consensual same-sex activity (level of scrutiny is unclear)
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Right to domestic travel
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Laws that must meet strict scrutiny
(1) laws that prevent people from moving into state (2) laws requiring person to live in jurisdiction for certain period to get a benefit (can't make ppl wait longer than 50 days to vote) |
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Right to international travel
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Rational basis test
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Right to vote
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Laws that deny some citizens right to vote must meet strict scrutiny (poll tax, pay fee, own property)
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One Person -- One Vote
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Must be almost exact mathematical equality between congressional districts within a state
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At Large Elections
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unconstitutional if there is proof of a discriminatory purpose
Otherwise, constitutional |
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Use of Race in Drawing Election District Lines
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Must meet strict scrutiny
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NOT fundamental rights
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(1) right to practice a trade or profession
(2) right to physician assisted suicide (3) right to education --> rational review |
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Level of scrutiny unknown
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(1) right to engage in private consensual same-sex activity
(2) right to refuse medical treatments (3) right to possess firearms |
