Constitutional Law: Individual Rights (Retroactive Legislation, Procedural Due Process, Takings)

Front 1

Except for 13A prohibition vs. slavery, Constitution applies only to government action

Bill of Rights applies to federal and government, but most protections have been incorporated against states (and their political subdivisions) through the 14A.

Back 1

Not yet: 2A right to bear arms, 3A right not to have soldiers quartered, 5A right to grand jury indictment, 7A right to jury in civil cases, 8A right against excessive fines

Front 2

Congress may apply constitutional norms to private conduct by statute pursuant to--

Back 2

A1 Sec A legislative powers

ex: ban on racial discrim in private hotels thru Commerce Clause

13A power to enforce prohibition against slavery

ex: ban on racial discrimination in private employment

Front 3

State Action

Easy examples:
- state law
- state official acting officially (even if unlawfully)

Back 3

1) Public Function Performance: state action when a private party performs a function traditionally and exclusively done by government

2) State Involvement: State action sometimes where significant state involvement, assistance, encouragement, or approval of challenged private conduct

Front 4

Supreme Court often employs levels of scrutiny when laws are challenged on SDP, EP or FS grounds.

Back 4

Rational: legitimate ends, rationally related means, challenger's burden, valid presumption

Intermediate: important state interest, substantially related means, state's burden, no presumption

Strict: compelling state interest, narrowly tailored (least restrictive), state's burden, invalid presumption

Front 5

Contract Clause

States (not federal government) may not enact legislation that substantially impairs existing contract rights retroactively, unless:

Back 5

1) Private Contracts: satisfies rational basis or intermediate scrutiny (test unclear)

2) Public Contracts: satisfies intermediate or stricter scrutiny (stricter, but test unclear)

Front 6

Ex Post Facto Laws

Back 6

Neither state nor federal government may pass legislation that retroactively alters criminal liability to criminalize act that was innocent when done; makes crime greater than when committed; sets greater punishment than when act was done; reduces evidence required to convict from what was required at time of act

Front 7

Bills of Attainder

Back 7

Neither state nor federal government may pass legislation that designates particular individuals for punishment without judicial trial

Front 8

Procedural Due Process

Back 8

Under DP Clause of 5A (applicable against fed gov) and 14A (applicable against states), an individual has right to a fair process when the government acts to deprive the individual of life, liberty or property

Front 9

Was there a deprivation of life, liberty, or property?

Back 9

Deprivation: must be intentional (or at least reckless)

Liberty:
1) physical freedom
2) constitutional and statutory rights (not mere harm to reputation)

Property
1) Real and personal, tangible, and intangible
2) Gov entitlement to which an individual has a resonable expectation of continued receipt (not at will employment)

Front 10

If deprived of life, liberty, or property, what process was due?

Back 10

Notice (reasonably calculated to inform person of action against him) and opportunity to be heard before a neutral decisionmaker.

Front 11

1) Pre-deprivation hearing required unless gov shows highly impracticable.
2) Post-deprivation examples (emergency institutionalization)
3) Balancing test determines nature and extent of procedures
4) Neutral decisionmaker: no actual/serious risk of bias

Back 11

Factors for balancing test:

1) Importance of interest to individual
2) Risk of error thru procedures and accuracy gain from addtl procedures, and
3) Burden on government

Front 12

Takings

Back 12

Neither federal gov (5A) or states (14A) may take private property for public use without just compensation.

Front 13

Physical Taking

Occupation or confiscation even if tiny or temporary

Back 13

1) Development exception: gov. conditions on property dev. are not takings if benefit is roughly proportional to burden

2) Emergency exception: taking less likely even if deprivation complete/permanent, if pursuant to public emergency (war)

Front 14

Regulatory taking

Regulations on use that not merely diminish but leave no economic viable use

Back 14

Temporary regulatory denial of all economic use may not be a taking so long as reasonable under circumstances

Front 15

Public Use

Public purpose: any legitimate public purpose (any purpose gov reasonably believe will benefit the public)

Back 15

Just Compensation: fair market value at time of taking (benefit to gov. is irrelevant)