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62 Cards in this Set
- Front
- Back
Justiciability
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Federal courts are limited to actaul cases & controversies
a. Case or controversy: i. Need an actual dispute ii. No advisory opinions iii. Federal Court will not review 1. if there is basis on adequate state rules 2. political question |
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Standing
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i. Individual
ii. 3rd Party Standing iii. Organization iv. Tax Payer |
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Individual Standing
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Injury (must be or imminently will be injured), Causation (∆ caused or will cause injury), Redressibility (favorable decision will remedy the injury). Federal court cannot issue advisory opinions.
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3rd Party Standing
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General Rule=not allowed. Claimant needs standing and must show close relationship (i.e. doctor-patient) OR injured 3rd Party unable to assert own rights (i.e. peremptory challenges) (prisoners);
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Organization
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Members must have individual standing; interests germane to Org’s purpose, no individual participation required. TESTED FREQUENTLY
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Organization
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Members must have individual standing; interests germane to Org’s purpose, no individual participation required. TESTED FREQUENTLY
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Tax Payer
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You cannot sue as a tax payer, but you can challenge government expenditures for violation of establishment clause.
1. No Generalized Grievances: π cannot sue solely as a citizen or a taxpayer Exception= challenging government expenditures under the Establishment Clause ($ only; not property) |
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Timeliness
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i. Ripeness: pre-enforcement review. You need harm or the immediate threat of harm.
ii. Mootness: π must present a live controversy, if injury ends, so does case; Exceptions: (1) capable of repetition but evading review (Roe); (2) ∆ voluntarily ceases but can resume anytime; (3) Class Action suits (if named π’s claim becomes moot, action can continue) |
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11th A
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Law suit against the state not permissible. CITY/Municipalities ok
i. Barred 1. Injunctive/declaratory relief 2. Retroactive damages 3. Govt officers for violating state law ii. Not Barred 1. Action to enjoin state officer from conduct violating the Constitution 2. Actions against officers personally 3. When state consents 4. If Congress removes immunity under 14th A |
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Political Question
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Constitutional violations Fed Courts won’t adjudicate;
4 Types: (1) “republican form of govt”; (2) Challenges against Prez’s foreign policy; (3) Challenges to impeachment and removal; (4) challenges to partisan gerrymandering (drawing legislative seats) |
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State Action Requirement:
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Need to show action to sue for constitutional violation
a. Significant state involvement b. Activities that are traditionally state exclusive public functions |
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Exceptions To State Action Requirement
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4. Exception: Congress, by Statute, may apply constitutional norms to private conduct.
a. 13th Amendment: prohibits slavery- allows Congress to prohibit private race discrimination. b. Commerce Clause: used to apply Constitutional norms to private conduct. (Hotels and Restaurants cannot discriminate based on race). c. §5 of 14th Amendment: Congress cannot use §5 to regulate private behavior, only state & local government behavior. |
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Public Function Exception
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If private entity is performing a task traditionally, exclusively done by the government
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Entanglement Exception
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If government affirmatively authorizes, encourages, or facilitates unconstitutional activity.
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Congressional Sources of Power
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Commerce
Spending Power |
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Commerce Power of Congress
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1. Interstate-Congress has exclusive power to regulate foreign and interstate commerce
a. Channels b. Instrumentalities c. Persons and things d. Activities 2. Intrastate a. Economic or commercial activity-use rational basis that in the aggregate substantially affects interstate commerce. b. Non-economic-Factually show substantial economic effect on interstate commerce |
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Congress Spending Power
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1. Taxing
2. Enabling clause, 13th, 14th, and 15th 3. War power 4. Power over aliens |
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Congress’ Authority to Act
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a. Express or Implied Congress Power
b. Necessary & Proper Clause c. Taxing/Spending Powers d. Commerce Clause e. 10th Amendment f. Section 5 of 14th Amendment |
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Express or Implied Congress Power
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All Congress’ powers come from constitution.
i. No express Police Power. Exceptions: (1) Military; (2) Indian Reservations; (3) Federal Lands & Territories; (4) Washington DC. |
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Necessary & Proper Clause
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Congress has the power to use any means necessary to carry out its specifically granted powers.
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Taxing/Spending Powers
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Congress can tax & spend for the General Welfare (create any tax it and spend it how it sees fit).
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Commerce Clause
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Congress can regulate
(1) channels of interstate commerce (i.e. highways, waterways, internet); (2) instrumentalities of Interstate Commerce (i.e. trucks, planes, internet); (3) activities that have a substantial effect on interstate commerce. |
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10th Amendment
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Reserve Powers: all powers not granted to the US, nor prohibited by the states, are reserved to the states or the people.
i. Congress cannot compel state regulatory or legislative action (i.e Brady Bill) ii. Congress may prohibit harmful commercial activity by state governments. (ie Fed Law can prohibit state DMV from releasing personal info) |
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Section 5 of 14th Amendment:
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Gives Congress power to adopt laws to protect 14th Amendment; cannot create new rights, only laws that protect preexisting rights, as long as they are Proportionate & Congruent to protecting the rights or remedying violations
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Dormant Commerce Clause
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The state cannot regulate interstate commerce if
a. (1) discriminatory OR b. (2) unduly burdensome Unless... 1. It furthers important non-economic state interest; AND 2. There are no reasonable non-discriminatory alternatives. a. Exceptions: (1) Congressional Approval (never seen yet) (2) Market-Participation Exception (govt acting as buyer or seller, not govt interest) |
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Burdensome Test
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Weigh state’s interest v. burden on interstate commerce
i. Must show No Reasonable Less-Restrictive Alternatives |
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Privileges & Immunities Clause
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No state (city/state) may deny noncitizens the privileges and immunities (civil liberties and important economic activities) afforded its own citizens absent substantial justification and there are no less discriminatory alternatives.
a. TEST TIP-Tend to use corporations because corporations and aliens are not considered citizens. b. Test: If law discriminates (i.e. government tries to help own citizens or businesses at expense of others)= violates P&I unless necessary to achieve an important government interest. If law does NOT discriminate ≠ violate P&I i. ***Law must be with regard to civil liberties or important economic activities c. Corporations and Aliens cannot use privileges and immunities clause.** |
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Contracts Clause
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States cannot make contracts that substantially impair existing contracts.
a. Cities are held to a higher standard. b. Test i. Law must serve an important and legitimate public interest; ii. Is reasonable; AND iii. Narrowly tailored. |
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RATIONAL BASIS TEST
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a law is upheld if it is rationally related to a legitimate government purpose.
i. Burden on the challenger. ii. Legitimate=some conceivable purpose iii. Government almost always wins |
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INTERMEDIATE SCRUTINY
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a law is upheld if it is substantially related to an important government purpose.
i. Substantially related = narrowly tailored. ii. Does not have to be the best way. |
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STRICT SCRUTINY
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A law is upheld if it is necessary to achieve a compelling government purpose & there are no less restrictive alternatives.
i. Government has the burden of proof. |
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Freedom of Religion
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Free exercise clause
Establishment Clause |
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Free-Exercise Clause
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Freedom to practice whatever religion you wish.
i. **Rule: Government can regulate conduct, even religious conduct-Exercise clause cannot be used to challenge a neutral law of general applicability (i.e. Native Americans cannot use FEC to challenge law against peyote). 1. If law is motivated by desire to interfere with religion, then must satisfy - strict scrutiny. ii. Rule: The government may not deny benefits to individuals who quit their jobs for religious reasons. |
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Establishment Clause
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Prohibits establishment of law respecting the establishment of religion. Government cannot burden or favor religion.
i. Incidental or favoring okay. ii. 3 Part Test (S E X)- special test 1. (1) there must be a Secular purpose for law a. If primary purpose is to advance religion, it fails. 2. (2) the primary Effect neither advances nor inhibit religion 3. (3) there must not be eXcessive govt. entanglement with religion |
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Freedom of Speech-Content Based v. Neutral
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Content Based OR Content Neutral
i. Content Based (forbids specific ideas)- strict scrutiny (subject matter restrictions, viewpoint restrictions) 1. Presumptive unconstitutional-narrowly tailored, compelling govt interest, and least restrictive means with govt BoP. |
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Less Protected Speech
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1. Anonymous Speech
2. Incitement of Illegal Activity- 3. Obscenity & Sexually 4. Commercial Speech |
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Anonymous Speech
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Protected (right to speak and right not to speak)
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Incitement of Illegal Activity
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Unprotected if substantial likelihood of imminent illegal activity
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Obscenity & Sexually Oriented Speech
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3 Part Test
a. (1) material must appeal to the prurient interest b. (2) material must be patently offensive under the law prohibiting obscenity (Community RP Standard) c. (3) Taken as a whole, material must lack serious redeeming artistic, literary, political, or scientific value. i. National RP Standard |
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Commercial Speech
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Intermediate scrutiny
a. EXCEPTIONS: (1) Advertising for illegal activity= not protected (2) False & Deceptive Ads= not protected (3) True Commercial Speech that inherently risks deception= not protected |
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Defamation
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i. Π = public official, must prove falsity and actual malice (=knowledge of falsity or reckless disregard for truth)
ii. Π ≠ public official, must prove falsity and negligence for general damages (actual malice for punitive damages) |
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Content Neutral TPM
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Time/Place/Manner Restrictions
i. Public ii. Limited public forum iii. Non-public forum |
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Prior Restraints
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Judicial order or administrative system that stops speech before it occurs. Court orders suppressing speech must meet - strict scrutiny.
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Places Available for Speech
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i. Public Forums
ii. Limited Public Forums iii. Non-Public Forums iv. Private Property |
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Public Forums
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Government property that government is constitutionally required to make available. (i.e. sidewalks, parks)
1. Content Based -- strict scrutiny 2. Content Neutral – Time, Place, Manner restrictions only- - must serve important government purpose, be narrowly tailored, serve important govt interest and leave open adequate alternative places for communication (need not be least restrictive alternative) |
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Limited Public Forums
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Government property that government could close to speech but chooses to open to speech. (if government opens it as a public forum, must follow public forum requirements).
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Non-Public Forums
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Government properties that government can and does close to speech. – rational basis
1. TPM 2. View point neutral 3. Reasonably related to govt (1) military bases, areas outside prisons, advertising space on city buses, sidewalks-at post office, airports |
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Private Property
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There is no 1st Amendment right of access to private property for speech purposes.
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Symbolic Speech
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Government can regulate if
i. Within constitutional power ii. Serves important govt interest that IS INDEPENDENT of the speech aspects iii. Burden on speech no greater than necessary. |
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Due Process
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Procedural Due Process: process government must go through if it takes away a person’s life, liberty, or property.
Substantive Due Process: You need notice and a hearing. Whether government has an adequate reason for taking away a person’s life, liberty, or property. |
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Deprivation of Liberty
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Violation of a person’s constitutional rights (not harm to reputation, must be an Economic Loss) (Adults v. Children: except in an emergency, adult must receive notice and a hearing to be institutionalized; parent can institutionalize a child- only need a screening by a neutral fact-finder).
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Deprivation of Property
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Occurs if there is an entitlement and that entitlement is not fulfilled. (Entitlement =reasonable expectation to continued receipt)
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Due Process Procedures Test
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e. Procedures Required: 3 Part Balancing Test:
(1) Importance of interest to individual; (2) ability of additional procedures to increase the accuracy of the fact-finding; (3) government interests. |
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Due Process Claim for Negligence
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Intentional Taking Required- Negligence is not sufficient for a due process claim (must be intentional government action or at least reckless action for liability to exist.)
In Emergency Situations, the government is liable under due process only if its conduct “shocks the conscience”. |
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Substantive Due Process Test
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a. Test
i. Was there a deprivation? 1. Liberty-freedom of action 2. Property-entitlement ii. What type of process 1. Importance to interest of ind. 2. Value of procedural safeguards to that interest 3. Weighed against govt interest in fiscal and XXX efficiency? iii. ASK 1. Who is being treated differently and why? a. Suspect class-Strict Scrutiny Gov BoP b. Quasi-suspect class-Intermediate scrutiny Gov BoP c. Non suspect class-RB Scrutiny Challenger BoP 2. Discriminatory Intent a. Facially b. Application c. Motive behind the law-effect alone is not enough 3. TEST TIP: One paragraph of govt inter. One on how related |
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Takings Types
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Takings Clause
Contract Clause |
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Taking Clause
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i. Takings Clause: government may take private property for public use if it provides just compensation. (Taking= Possessory or Regulatory= leaves no reasonable economically viable use)** (Public Use= government reasonably believes taking will benefit the public) (Just Compensation= loss to owner, not gain to the government)
1. Decreases value of property and leaves no economic value a. Social goal being promoted b. Diminution in value c. Owner’s reasonable expectation 2. Temporary Denial of economic value a. Length of delay b. Planner good faith c. Economic effect d. Owner’s reasonable expectation. |
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Contracts Clause
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No state shall impair the obligations of contracts (applies only to local & state interference with existing contracts, Never Fed!!!)
1. Intermediate Scrutiny: legislation that substantially impairs a party’s rights under an existing contract must be reasonably and narrowly tailored to a legitimate public interest. |
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Group Classifications and their Level of Scrutiny
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a. Race - strict scrutiny
i. Proving racial classification: If facially neutral: discriminatory intent & discriminatory impact** ii. Racial classifications benefiting minorities (strict scrutiny)- (1) quota allowed if clear proof of discrimination; (2) educational institutions may use race as one factor in admissions decisions (cannot Add points to score); (3) Seniority systems may not be disrupted by affirmative action b. National Origin/Alienage - strict scrutiny i. Undocumented Alien Children- - intermediate scrutiny ii. Concerning Self Government - rational basis test iii. Congressional Discrimination of Aliens (i.e. Immigration)- allowed c. Gender – intermediate scrutiny (+ must have exceedingly persuasive justification) i. Proving gender classification: If facially neutral= discriminatory intent & discriminatory impact. ii. Gender classifications benefiting women: (1) if based on role stereotypes- not allowed; designed to remedy past discrimination – allowed. d. Non-Marital Children – intermediate scrutiny e. Religion - strict scrutiny (1st Amendment) f. Age – rational basis g. Disability – rational basis h. Economic Regulations – rational basis i. Sexual Orientation – rational basis j. Wealth – rational basis |
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36. Fundamental Rights under Equal Protection
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a. Right to Travel
i. Local - strict scrutiny ii. Foreign – rational basis iii. Durational Residency Requirements (when person must live in a jurisdiction for a certain amount of time) - strict scrutiny (for voting- max 50 days) b. Right to Vote i. Laws that deny some people right to vote - strict scrutiny ii. One Person One Vote must be met for all state and local elections c. Right to Education – no right |
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Freedom of Association
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Strict scrutiny (special test)
a. Prohibit Group Membership Laws that prohibit or punish group membership must meet strict scrutiny. (To punish, must show (1) actively affiliated with group; (2) knowledge of its illegal activities; (3) with specific intent of furthering those illegal activities). b. Disclosure of Group Members: - strict scrutiny c. Laws Prohibiting Group From Discriminating = constitutional unless they interfere with (1) intimate association (i.e. small dinner party) or (2) expressive authority (KKK) |
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Equal Protection Essay Approach
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1. Is there a state action?
2. What is the classification? a. Law facially discriminates b. Facially Neutral law with discriminator intent AND a discriminatory impact 3. What is the level of scrutiny? 4. Does the law meet the scrutiny level? |