Individual Rights

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State Action

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Government action, whether state or local

Government cannot be significantly involved in private discrimination. Government cannot:

facilitate private discrimination

profit from private discrimination

enforce a private agreement to discriminate

But the government is not required to prevent private discrimination

Mere licensing or regulation of a private party does not constitute state action; the state must act affirmatively to facilitate, encourage, or authorize the activity.

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Procedural Due Process

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The Due Process Clause of the Fifth Amendment, which applies against the federal government, provides that “[n]o person shall be...deprived of life, liberty, or property, without due process of law.”

The Due Process Clause of the Fourteenth Amendment, which applies against the states, provides that “no state shall make or enforce any law which shall...deprive any person of life, liberty, or property, without due process of the law.”

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Due Process Generally

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notice and a hearing, are the cornerstone of procedural due process

i) Is the threatened interest a protected one?

1. Life

2. Liberty

3. Property

ii) If so, what process is due?

a) The private interest affected by the governmental action;

b) The risk of erroneous deprivation of that interest using current procedures and the probablevalue of additional or substitute safeguards; and

c) The burden (fiscal and administrative cost) involved in providing the additional process.

That is, the Fourteenth Amendment Due Process Clause incorporates the protections of the First, Second, and Fourth Amendments, as well as most of the protections of the Fifth, Sixth, and Eighth Amendments. (However, the Fifth Amendment right to grand jury indictment and the Sixth Amendment right to a unanimous jury verdict in a criminal trial are not incorporated. While the Eighth Amendment protections against cruel and unusual punishment and excessive bail are incorporated, it has not been determined whether the Eighth Amendment protection against excessive fines is incorporated.) The Seventh Amendment right to a jury in civil trials has been held not applicable to the states.

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Substantive Due Process

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The standard of review in substantive due process cases is generally twofold: a governmental action that infringes upon a fundamental right is subject to strict scrutiny. If the interest infringed upon is not fundamental, then there need be only a rational basis for the regulation.

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Strict Scrutiny

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Applied to fundamental interests

The law must be the least restrictive means to achieve a compelling governmental interest.

Burden on gov't

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Compelling interest

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Something like national security, or preserving health or safety

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Rational Basis

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A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld.

Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational.

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Fundamental Rights

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(i) the right to vote;

(ii) the right to travel; and

(iii) the right to privacy

sexual relations,

abortion,

child rearing, and

the right of related persons to live together)

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Residency Requirements

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States can impose residency requirements for political participation and welfare benefits.

Most are 30-90 days.

One year is too long for everything except divorce jurisdiction and instate tuition.

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Right to Privacy

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a. Marriage

b. Contraception

c. Sexual Intimacy

d. Abortion

e. Parental Rights

f. Family Relations

g. Obscene material

h Refusal of medical Treatment

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Equal Protection

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One Equal Protection Clause - found in the 14th Amendment

Standards of Review are the same as Due Process

Note 3: Though no Equal Protection Clause guarantee technically applies tothe Federal government, equal protection concepts areapplied to the federal government via the Due Process Clause of the 5thAmendment. Therefore, states and localities have both equal protection anddue process; for the federal government, equal protection and due process arecalled Fifth Amendment Due Process

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Suspect Classifications

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a. Race, ethnicity, or national origin

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Alienage

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Classifications based upon U.S. citizenship are generally suspect classifications that require acompelling interest,

but

two important exceptions to strict scrutiny for alienage apply:

1. Federal Government

2. State and local participation in gov't functions

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Quasi Suspect Classification

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Gender - almost always invalid; Exceptions: statutory rape and the draft

Legitimacy - almost always invalid

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Intermediate scrutiny

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the law must be substantially related to an important gov't interest

Applies to gender and legitimacy

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Non-suspect classifications

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Age and Wealth

Discrimination based on these is based on statute not the constitution

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Takings

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Private property shall not be taken for public use without just compensation

public use - rationally related to a conceivable public use

just compensation - FMV at the time of taking

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Establishment of Religion

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When a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies. Bd. of Educ. v. Grumet, 512 U.S. 687 (1994) (creation of special school district to benefit members of one religion invalid).

Not every governmental action that impacts religion is unconstitutional. To determine whether a particular program violates the Establishment Clause, the Court may apply the three-part test developed in Lemon v. Kurtzman, 403 U.S. 602 (1971).

A governmental action that benefits religion is valid if:

i) It has a secular purpose;

ii) Its principal or primary effect neither advances nor inhibits religion; and

iii) It does not result in excessive government entanglement with religion.

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invalid as clearly promoting religion

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i) Prayer and Bible reading, Engel v. Vitale, 370 U.S. 421 (1962);

ii) A designated period of silence for “meditation or voluntary prayer,” Wallace v. Jaffree, 472 U.S. 38 (1985);

iii) Nondenominational prayer led by a cleric at graduation ceremonies, Lee v. Weisman, 505 U.S. 577 (1992);

iv) Posting the Ten Commandments on public-school classroom walls, Stone v. Graham, 449 U.S. 39 (1980); and

v) Prohibiting the teaching of Darwinism (i.e., human biological evolution), or mandating that such teaching be accompanied by instruction regarding “creation science,” Edward v. Aguillard, 482 U.S. 578 (1987); Epperson v. Arkansas, 393 U.S. 97 (1968).

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Free Exercise Clause

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First Amendment

freedom to believe and the freedom to act.

Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.

Strict scrutiny applies when the government purposely targets conduct because it is religious or displays religious beliefs

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Regulation of Speech

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Governmental regulation of expressive conduct is upheld if:

i) The regulation is within the government’s power to enact (e.g., through a local government’s police power);

ii) The regulation furthers an important governmental interest

iii) The governmental interest is unrelated to the suppression of ideas; and

iv) The burden on speech is no greater than necessary.

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Prior Restraint

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These rare exceptions require at a minimum that:

i) There is a particular harm to be avoided (like publication of troop movements); and

ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include:

a) The standards must be narrowly drawn, reasonable, and definite, Butterworth v. Smith, 494 U.S. 624 (1990);

b) The censoring body must promptly seek an injunction, Teitel Films v. Cusack, 390 U.S. 139 (1968); and

c) There must be a prompt and final judicial determination of the validity of the restraint,National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977).

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Regulation of Time, Place, and Manner of Expression

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Regulation of Time, Place, and Manner of Expression.

“public forum”

i) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation);

ii) Are narrowly tailored to serve a significant governmental interest; and

iii) Leave open ample alternative channels for communication of the information.

Restrictions that are not content-neutral are also subject to strict scrutiny

"non-public forums"

The government may regulate speech-related activities in nonpublic forums as long as the regulation is (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.

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Obscene Speech

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Neither obscene speech nor child pornography is protected by the First Amendment Free Speech Clause

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Obscenity Test

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Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole:

i) Appeals to the “prurient interest”;

-Community Standard

ii) Depicts sexual conduct in a patently offensive way; and

-Community Standard

iii) Lacks serious literary, artistic, political, or scientific value.

-National Standard

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Commercial Speech

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intermediate level of First Amendment Protection

four-part test:

i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited);

ii) The asserted governmental interest must be substantial;

iii) The regulation must directly advance the asserted interest; and

iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a “reasonable fit” between the government’s ends and the means chosen to accomplish those ends. Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989).