MBE Con Law - Individual Rights

If gov't is treating people differently than other similarly situated people, what kind of question is this?

An equal protection question.

For Equal Protection what are the protected classes and their levels of scrutiny?

1) Race, Alienage, National origin. Strict scrutiny.

2) Gender, Illegitimacy. Intermediate scrutiny.

3) all other classes. Rational basis review.

What is Equal Protection Strict Scrutiny?

The gov't has to prove the law was NECESSARY to achieve a COMPELLING government interest.

What is Equal Protection Intermediate Scrutiny?

The gov't has to prove the law was SUBSTANTIALLY RELATED to an IMPORTANT government interest.

What is Rational Basis review?

The plaintiff has to prove the gov't action was not RATIONALLY RELATED to a LEGITIMATE government interest. (Presumption that laws are rationally related to legitimate gov't interests)

If gov't is taking away or limiting a right, freedom, or liberty of everyone, what kind of question is this?

A substantive due process question

What fundamental constitutional rights trigger Strict Scrutiny?

1) right to vote

2) right to free speech

3) right to interstate travel

What fundamental privacy rights trigger strict scrutiny?

CAMPER.

Contraception.

Abortion (undue burden std). (Rational Basis now)

Marriage.

Procreation.

Education, private.

Raise a family in a manner I see fit. (state termination of parental right subject to SS)

If gov't is taking away or limiting a right that is not an enumerated or fundamental right, what std of review will be applied to the state action?

Rational basis. The plaintiff must show the action is not rationally related to a legitimate government interest.

Although strict scrutiny generally applies to state laws that discriminate against aliens, rational basis scrutiny is applied when alienage classification restricts the right to participate in functions that are central to self-government, such as……

Voting, running for office, or serving a jury.

If gov't is taking away or limited a property right, what kind of question is this?

A procedural due process question.

Examples of things being taken away that implicate Procedural DP?

gov't jobs, licenses, gov't benefits

Procedural due process means...

before the gov't can take away our property right, we have a right to notice and a hearing.

In due process questions, what parts of the constitution are implicated by gov't action?

5A applies to federal action. 14A applies to state action.

If a law treats me differently because I am a non-resident of a state, what clause is this implicating?

Privileges & Immunities

If private actor discriminates what Amendment does this implicate?

13th Amendment

If there is racial discrimination in voting, what Amendment does this implicate?

15th Amendment

Do the First and Fourteenth Amendments protect against private employer actions?

These amendments generally restrict government actions, not private companies, unless the private entity is acting as a state agent.

If there is a gov't taking of private property, what Amendment does this implicate?

5th Amendment taking clause.

What is the 5A taking clause?

There shall be no taking of private property for "public use" without just compensation.

For 5A takings, what is "just compensation?"

fair market value

For 5A takings, what is "public use?"

Used for "the greater good of the community," even if it will be owned by a private company. (Dont let ethics trick you here)

What is inverse condemnation?

When gov't does something to destroy the economic benefit of my land (and makes it almost valueless).

What two things does 1A say about religion?

Free exercise, anti-establishment.

What does the "establishment clause" do?

Prevents the gov't from promoting or inhibiting religion.

What test is used to determine if a law violates the establishment clause?

History and Tradition Test and Neutrality (whether the challenged gov. action is religously neutral)

If a law is neutral on its face but its effect is to regulate religion, does this violate the "free exercise" clause?

No.

If a law regulating speech does so based on content, that std of review applies?

Strict scrutiny. Gov't has to prove the law is necessary to further a compelling state interest.

A speech law that is neutral as to content but regulates time, place, and manner of speech and affects a public forum (streets, sidewalks, and parks (not beach)) is constitutional if...

it is NECESSARY to further a SIGNIFICANT gov'l interest and leaves open an ALTERNATIVE MEANS of communication.

A speech law that is neutral as to content but regulates time, place, and manner of speech and affects a non-public forum (like a billboard) is constitutional if...

it is reasonably related to a legitimate gov't interest.

What kinds of speech are unprotected by 1A?

Defamation.

Fraud.

False or misleading advertising.

Fighting words.

Obscenity.

Speech that incites and likely to produce imminent violence.

What is the test for obscenity?

1) an objective person, applying local community stds, the work appeals to the prurient interest in sex;

2) the work depicts sex in a patently offensive manner; and

3) the work lacks any serious artistic, political, or scientific value.

Can commercial speech be regulated?

Yes, if there is a reasonable fit to a substantial gov't interest and is narrowly tailored. False and misleading advertising may be shut down.

What are bills of attainder and are they legal?

A state or federal "law" that punishes an individual or named group is illegal.

A ________ classification based on alienage is upheld unless __________

federal classification of alienage allowed unless arbitrary and unreasonable

In order for a court to give full faith and credit...

1) the court had jurisdiction

2) the judgment was final

3) the judgment was adequately supported by state law

- doesn't have to be on the merits. A default is enough.

Privileges AND immunities of Art. IV is about ?

state citizenship and prohibits discrimination against out of state individuals