Term
| When will state action be found in relationship to the activities of a private individual? |
|
Definition
When the private person carries on activities that are TRADITIONALLY PERFORMED EXCLUSIVELY BY THE STATE.
E.G. a shopping mall may discriminate against picketers, but a private counsel may not discriminate against jurors because selection of jurors is a traditional state function. |
|
|
Term
| Does licensing or regulation of private parties constitute state action? |
|
Definition
| Generally no, the state must affirmatively facilitate, encourage, or authorize the activity. |
|
|
Term
| What is procedural due process? |
|
Definition
| It ensures that the federal and state governments must follow certain procedures before depriving any person of life, liberty, or property. E.G. notice, hearing |
|
|
Term
| Which amendment incorporates most of the bill of rights to the federal government? To the states? |
|
Definition
| The 5th to the federal government. The 14th to the states. |
|
|
Term
| Does the due process clause address injury from governmental negligence? |
|
Definition
| Mere negligent conduct by a govt employee does not trigger a due process right. |
|
|
Term
| When does an impingement on liberty occur? |
|
Definition
| When significant government restraint on ones physical freedom, exercise of fundamental rights, or freedom of choice or action occurs. Injury to reputation is generally not enough unless the individual has lost significant employment or associational rights. |
|
|
Term
| When determining whether process is due, what does the court consider? |
|
Definition
1. Is the interest at stake a protected one?
2. If so, what process is due? |
|
|
Term
| Is the interest in property a legitimate interest to require due process? |
|
Definition
| Yes, if it is a legitimate property interest, but there must be legitimate claim of entitlement by virtue of statute, employment contract, or custom. |
|
|
Term
| If an individual's protected interest is threatened by government action, what type of factors are considered in determining the amount of procedural process is due? |
|
Definition
1. THe private interest affected by government action.
2. The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards.
3. The burden (fiscal and administrative) cost involved in providing additional process. |
|
|
Term
| Are enemy combatants entitled to procedural due process? |
|
Definition
|
|
Term
What burden of proof is allocated to the termination of parental rights?
To paternity suits? |
|
Definition
| Termination of parental rights requires clear and convincing proof. Paternity only requires a preponderance. |
|
|
Term
| What type of procedural due process is afforded to public employees? |
|
Definition
1. Notice of termination
2. Pre-employment opportunity to respond.
3. Post-termination evidentiary hearing. |
|
|
Term
| A fundamental right acquires which level of scrutiny? |
|
Definition
|
|
Term
| What is the strict scrutiny test? |
|
Definition
A law must be necessary by the least restrictive means to achieve a compelling governmental interest.
There cannot be a way to achieve the same interest that is less restrictive of the right at issue. The law should also not be under or over-inclusive. Overinclusive reaches more people or conduct than necessary, underinclusive reaches less people than it should. |
|
|
Term
| When a right that is not fundamental is involved, what standard of scrutiny is involved? |
|
Definition
|
|
Term
|
Definition
| A law meets rational basis review if it is rationally related to a legitimate state interest. It is only invalidated if the challenger can overcome the presumption of validity by proving that the law is arbitrary or irrational. |
|
|
Term
| What are some fundamental rights? |
|
Definition
1.The right to vote.
2. The right to travel domestically.
3. The right to privacy (marriage, sexual relations, abortion, child rearing, related persons to live together)
4. Bear arms
5. Fair trial |
|
|
Term
| What requirements may the government impose on voting rights? Which are illegal? |
|
Definition
May:
1. 18 years old
2. Residency requirements (length of residency only subject to strict scrutiny)
3. Voter ID
4. No voting for felons
5. Banning write-in candidates.
Invalid:
1. Property ownership.
2. Poll taxes are illegal |
|
|
Term
| Is holding public office and having access to the ballot a fundamental right? |
|
Definition
No fundamental right to HOLD office or appointment BUT fundamental right to be considered without invidious discrimination.
Can require:
1. Filing fee
2. Obtaining signatures in support of candidacy
3. Making a state office holder quit before being considered for another office seat.
Cannot require:
1. Property ownership
2. Acceptance of write ins if the state provides reasonable means to get on the ballot |
|
|
Term
| Is marriage a fundamental right? |
|
Definition
| Only between man and woman as of now. |
|
|
Term
| Is there a fundamental right to use contraceptions? |
|
Definition
|
|
Term
| IS there a fundamental right in intimate sexual behavior? |
|
Definition
|
|
Term
| How does abortion work as a fundamental right? |
|
Definition
| Pre-viability (meaning the fetus is likely to survive outside the womb if it's viable), the state may not impose an undue burden on the right to obtain an abortion. |
|
|
Term
| Post-viability is there a fundamental right to abortion? |
|
Definition
| At this point, the state may regulate and even prohibit abortion as long as there is an exception for preserving the life of the mother. |
|
|
Term
| Name a few state abortion requirements that have been held to not impose an undue burden. |
|
Definition
1. THe requirement that only a licensed M.D. perform an abortion.
2. A requirement that the physician must provide the woman with truthful information about the procedure, health risks, etc.
3. A 24-hour waiting period for the procedure after giving informed consent.
4. A minor must obtain consent, or provide the parents. The court must be able to bypass the consent requirement.
5. Ban on uncommon abortion techniques. |
|
|
Term
| Is there a constitutional right to have government provide indigent women with funding for an abortion or for medical care related to abortion? |
|
Definition
|
|
Term
| A parent has a fundamental right to make what kind of decisions about their children? |
|
Definition
| Care, custody, control, limit visitation of grandparents, and to homeschool. |
|
|
Term
| Is there a fundamental right to possess obscene material? |
|
Definition
| Yes, except for child pornography. However, the state may restrict the sale, purchase, receipt, transport, and distribution of obscene material. |
|
|
Term
| Is there a fundamental right to refuse medical treatment? |
|
Definition
| Yes, but no fundamental right to die. |
|
|
Term
| Is the second amendment right to possess a firearm absolute? |
|
Definition
| No, states may pose conditions and qualifications on the commercial sale of arms as well as prohibitions on concealed weapons, possession by felons and the mentally ill, and carrying guns into public schools, federal buildings, etc. |
|
|
Term
| How does intermediate scrutiny work? |
|
Definition
| A law must be substantially related to an important government interest. The burden generally appears to be on the government. |
|
|
Term
| To get strict scrutiny when the law is not facially discriminatory, but discriminatory in practice, what must the challenger prove? |
|
Definition
| That there was a discriminatory purpose behind the law. |
|
|
Term
| When a law disproportionately impacts a group of people, but is not facially discriminatory, it has a: |
|
Definition
|
|
Term
| What are the three ways of proving discriminatory intent? |
|
Definition
1. Facial discrimination: the law is facially discriminatory.
2. The law has been applied in practice in a discriminatory fashion.
3. Discriminatory motive: Proof of discriminatory motive. |
|
|
Term
| What suspect classifications are subject to strict scrutiny? |
|
Definition
| Race, ethnicity, and national origin. |
|
|
Term
| What level of scrutiny is affirmative action law subject to? |
|
Definition
|
|
Term
| What must a government show to give affirmative action? In what contexts is it valid? |
|
Definition
It must show past discrimination by government.
In public universities and colleges, race may be used as a plus factor because there is a compelling interest in obtaining the educational benefits of a diverse student body. Racial quotas are invalid.
AA is invalid in public schools (non-university) unless it is necessary to accomplish a compelling interest. A school district may employ race-neutral criteria having the same effect.
In the private setting, AA is ok. However, intentional discrimination is not. |
|
|
Term
| When Congress makes a law regarding alienage, is that subject to heightened scrutiny? |
|
Definition
| No, generally congress has plenary power over alienage and the law will likely be valid unless it is arbitrary or unreasonable. |
|
|
Term
| If a state makes a classification involving alienage, what level of scrutiny is it likely subject to? |
|
Definition
| Strict unless state law restruct or prohibits the alien's participation in government functions, then RB. |
|
|
Term
| Are undocumented aliens a suspect class? |
|
Definition
| No, but the states may not deny primary or secondary public education to undocumented aliens. |
|
|
Term
| What level of scrutiny to women and men get? |
|
Definition
|
|
Term
| What level of scrutiny do illegitimate (non-marital) children get? |
|
Definition
|
|
Term
| What level of scrutiny does age, poverty, and sexual orientation get? |
|
Definition
|
|
Term
| Do fundamental rights apply to equal protection or just due process. |
|
Definition
|
|
