Constitutional Law Ii Studicata - Outline

Studicata Individual Rights State Action Requirement Procedural Due Process The Due Process Clause of the 14th and 5th Amendments guarantees that no person shall be denied life, liberty, or property without due process of law. Thus, a fair process (e.g., notice and hearing) is required for a government agency to individually take a person’s life, liberty, or property. Only intentional (not negligent) deprivation of these rights violates the Due Process Clause. First has there been a deprivation of life, liberty, or property. The term “liberty” includes more than just freedom from bodily restraints (e.g., it includes the right to contract and to engage in gainful employment). A deprivation of liberty occurs if a person: Loses significant freedom of action; OR Is denied a freedom provided by the Constitution or a statute. The term “property” includes more than personal belongings and realty. A deprivation of property occurs if a person has a legitimate claim or entitlement that is not fulfilled (e.g., continued attendance at public school, welfare benefits, etc.). Must be provided due process, so long as the government creates a reasonable expectation to continue receive the benefit. Second, Assuming that there has been a deprivation of life, liberty, or property, what does the government have to provide with regard to process? (i.e. What kind of notice? What kind of hearing? What kind of representation?) The type and extent of procedural due process that is required is determined by a three-part balancing test that weighs: The importance of the individual’s interest that is being affected; AND The value of specific procedural safeguards to that interest (the ability of additional procedures to reduce the risk of an erroneous 1 deprivation.); AGAINST The government interest in fiscal and administrative efficiency. Substantive Due Process With the due process clause, the 5th amendment applies to the Federal Government Analysis. A governmental regulation that infringes upon a fundamental right is subject to the strict scrutiny standard of review, while a governmental regulation that does NOT infringe upon a fundamental right is subject to the rational basis standard of review. Strict Scrutiny. The government must prove that the regulation is the least restrictive means to achieve a compelling government interest (very difficult to prove). Rational Basis. The challenger must prove that the regulation is NOT rationally related to any legitimate government interest (very difficult to prove). Fundamental Rights. Some rights are so deeply rooted in our nation’s tradition and history that they are considered fundamental. These rights include: 1. The right to interstate travel; 2. The right to vote; AND 3. The right to privacy, including: The right to marry; The right of married persons to use contraceptives; The right of adults to engage in non-commercial, consensual sex; The right of parents to make decisions regarding the care, custody, and control of their children (including the right to privately educate a child outside the public school system); AND The right of related persons to live together in a single household. Abortion. The right to privacy also includes the right of a woman to have an abortion without interference from the state under certain circumstances. However, normal strict scrutiny cannot be applied because the state has two compelling 2 interests that compete: the woman’s health and protecting the fetus that may become a child. The Supreme Court has adopted two basic rules: Pre-Viability Rule. Before viability (a realistic possibility that the fetus could survive outside the womb), a state may adopt a regulation protecting the mother’s health and the life of the fetus if the regulation does not place an undue burden on the woman’s right to obtain an abortion. Post-Viability Rule. Once the fetus is viable, the state’s interest in the fetus’s life can override the woman’s right to obtain an abortion, but the state cannot prohibit the woman from obtaining an abortion if it is necessary for her health. The government has NO obligation to pay for abortions. Equal Protection (Levels of Scrutiny) The Equal Protection Clause of the 14th Amendment prohibits the government from denying citizens equal protection of the laws. When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made (i.e., whether the group is a suspect classification, quasi-suspect classification, or other classification). STRICT SCRUTINY If a suspect classification is involved, the strict scrutiny standard applies. Classifications are suspect if they are based on race, ethnicity???,religion, national origin, or alienage (alienage is only suspect and receives strict scrutiny if the classification is made by state law, if the federal government discriminates on the basis of alienage, it gets rational basis. HOWEVER, IF THE STATE LAW IS REGULATING A POLITICAL FUNCTION, THEN IT GETS RATIONAL BASIS). Under the strict scrutiny standard, the government must prove that the regulation is the constitute narrowly tailored means geared towards accomplishing a compelling state purpose. The means chosen has to be necessary to attain the goal. The government must show that there is no less restrictive (nondiscriminatory) alternative to vindicate the same government interest. 3 Laws should not be over broad or under inclusive. INTERMEDIATE SCRUTINY If a quasi-suspect classification is involved, the intermediate scrutiny standard applies. Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital children) or regulating certain kinds of speech (i.e. commercial speech). Under intermediate scrutiny, the government must show that the classification is substantially related to an important government interest. Notice the government's purpose has to be important, not just something that's legitimate for the government to do. The court will look only at the government's actual purpose. Law's upheld under intermediate scrutiny, only if the government action is perceived as substantially related in an important way to achieve the government's objective. When it's Intermediate Scrutiny the test is: Wht is the important interest? Is the government action substantially related to an important government purpose? And remember, the government has the burden of proof. Governmental Intent. For strict or intermediate scrutiny to be applied, there MUST be intent on the part of the government to discriminate. A discriminatory effect or disparate impact toward a group of people alone is NOT enough to show governmental intent. Governmental intent may be shown by: A law that is discriminatory on its face; A discriminatory application of a facially neutral law; OR A discriminatory motive behind a facially neutral law. RATIONAL BASIS For all other classifications (e.g., age, disability, and wealth classifications, sexual orientation), the rational basis standard applies. Under rational basis, the challenger must prove that the regulation is NOT rationally related to any legitimate government interest. Note at will employees can be fired with not cause 4 Rational basis ask where any possible legitimate interest would justify the distinction. IT DOES NOT examine the government's actual justification. EXCEPTION: the government action is motivated by animus against a specific group. (this will cause the law to fail rational basis). Note: Laws or Government Actions that are neutral on their face It is not enough that it produces a disparate impact (think that polCice test when they asked questions only white people would know like what is an acorn) It needs to INTENDS TO DRAW THE SUSPECT CLASSIFICATION Difficult to prove. You have to show that the government does (or does) not treating others that are similar in every respect except for that discriminatory reason better? ASK CROOMS THIS. Exam Tip. If a law limits liberty of ALL persons to engage in some activity, it is usually a due process issue. If a law treats a person or class of persons differently from others, it is usually an equal protection issue. CROOMS SAYS THIS IN CLASS FOR A EQUAL PROTECTION CLAIM YOU MUST PROVE THAT IDK LISTEN TO THE 9/14 RECORDING Affirmative Action States may implement regulations to remedy past discrimination if the class has actually suffered persistent and readily identifiable past discrimination. A race-based plan cannot be used to remedy general past “societal discrimination.” The level of scrutiny applied to the regulation depends on the classification. Takings Clause (Eminent Domain) The power of the government to take private property for public purposes is known as “eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this power. It provides that: 1. Private property may be taken; 2. For public use; The government may take private property not only for its own direct use, but also to transfer the property to another private party. To challenge this 5 taking as not being made for public use, the challenger must prove that the transfer of property is NOTrationally related to any conceivable public purpose (very difficult to prove). 3. With just compensation. Just compensation requires payment of fair market value (the reasonable value of the property at the time of the taking). The value is measured in terms of loss to the owner, not the benefit to the government. Seizure of Property. The classic application of the Takings Clause is the seizure of private property for governmental use (e.g., acquiring private land to construct a police station). Here, the property owner’s main challenge is whether he received just compensation. Regulatory Taking. Generally, a governmental regulation that adversely affects a person’s property interest is NOT a taking (does not require just compensation). However, it is possible for a regulation to rise to the level of a taking (requiring just compensation). In determining whether a regulation constitutes a taking, the Penn Central factors are considered: The economic impact of the regulation on the property owner; The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; AND The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property). Per se Takings. A governmental regulation clearly results in a taking when the regulation results in a: Permanent physical occupation of the property (e.g., a law requiring a landlord to permit a cable company to permanently install equipment on the landlord’s property); OR Permanent total loss of the property’s economic value (a regulation that results in a dramatic decline in the value of the property does not necessarily constitute a taking). 6 Exaction as a Taking. A local government may exact promises from a developer (e.g., setting aside a portion of the land being developed for a public use in exchange for issuing the necessary construction permits) without violating the Takings Clause if there is: 1. An essential nexus between legitimate state interests and the conditions imposed on the property owner; AND 2. A rough proportionality between the burden imposed by the conditions on the property owner and the impact of the proposed development. Privileges and Immunities Clause The Privileges and Immunities Clause prohibits one state from discriminating against the citizens of another state (does not apply to corporations or aliens). Outof-state citizens are protected against discrimination with respect to any fundamental rights or essential activities (e.g., pursuit of employment, transfer of property, engaging in the political process, etc.). However, discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if: 1. The out-of-state citizens either cause or are part of the problem that the state is attempting to solve; AND 2. There are no less restrictive means to solve the problem. Contracts Clause The Contracts Clause limits the ability of states to enact laws that retroactively impair contract rights. It does NOT affect contracts not yet made. There is no comparable clause applicable to the federalgovernment; however, flagrant contract impairment would likely violate the 5th Amendment Due Process Clause. State legislation that substantially impairs an existing private contract(a contract between private parties) is invalid UNLESS the legislation passes intermediate scrutiny (e.g., the challenged law must further an important government interest by means that are substantially related to that interest). State legislation that substantially impairs an existing public contract (a contract in which the state is a party) is tested by the same basic test as above, but will likely 7 receive stricter scrutiny. Ex Post Facto Laws The state or federal government may not pass an ex post facto law. An ex post facto law is a law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing a person for some past activity. A statute retroactively alters a law in a substantially prejudicial manner if it: Makes criminal an act that was innocent when done; Prescribes greater punishment for an act than was prescribed when it was done; OR Reduces the evidence required to convict a person of a crime from what was required when the act was done. Bills of Attainder Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both state and federal governments are prohibited from passing bills of attainder. Free Speech GENERAL PRINCIPLES Scope of Speech The freedom to speak includes the freedom not to speak. Thus, the government generally cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the state motto “live free or die” on a license plate). The freedom can extend to symbolic acts undertaken to communicate an idea (e.g., wearing a black armband to protest war), although the government may regulate such acts if: 1. The government has an important interest independent of the suppression of speech; AND 8 2. The incidental burden on speech is no greater than necessary to further that interest. Overbreadth and Vagueness Overbreadth Doctrine. If a regulation of speech or speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid (e.g., a regulation outlawing ALL 1st Amendment activity in an airport terminal; a regulation prohibiting all canvassers from going onto private residential property to promote ANY cause without first obtaining a permit). Void for Vagueness Doctrine. A statute or regulation is void for vagueness IF it does not put the public on reasonable notice as to what is prohibited. Prior Restraints (Censorship) A prior restraint is a regulation of speech that occurs before its expression. Generally, prior restraints are presumed to be unconstitutional with limited exceptions, including: There is a particular harm to be avoided (e.g., restraining a newspaper from publishing troop movements); OR Procedural safeguards are provided to the speaker (e.g., the standards must be narrowly drawn, reasonable, and definite). REGULATION BASED ON CONDUCT Content vs. Conduct Speech regulations can generally be categorized as either: Content-based (regulations forbidding communication of specific ideas); OR Conduct-based (regulations of the conduct associated with speaking, such as the time of speech, sound level, etc.). Content-Based Restrictions. It is presumptively unconstitutional to place burdens on speech because of its content, except for certain categories of unprotected speech (e.g., obscenity, defamation, etc.). However, contentneutral speech regulations generally are subject to intermediate scrutiny — they must: 9 1. Advance important interests unrelated to the suppression of speech; AND 2. NOT burden substantially more speech than necessary (i.e., narrowly tailored) to further those interests. Conduct-Based Restrictions. Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions (see below). Time, Place, and Manner Restrictions The government has power to regulate the conduct associated with speech, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum, a limited public forum, or a nonpublic forum. Public Forums and Designated Public Forums Public property that has historically been open to speech-related activity is called a public forum (e.g., streets, sidewalks, and public parks). Public property that has NOT historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups). The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that: 1. Are content-neutral (i.e., are subject matter and viewpoint neutral); 2. Are narrowly tailored to serve an important government interest; AND 3. Leave open alternative channels of communication. Limited Public Forums and Nonpublic Forums Government property that has NOT historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum (e.g., school gym opened to host a debate on a particular community issue). Government property that has NOT historically been linked with speech and assembly and has NOT been opened for specific speech activity is called 10 a nonpublic forum (e.g., military bases, schools while classes are in session, government workplaces, etc.). The government may regulate speech in limited public forums and nonpublic forums if the regulations are: 1. Viewpoint neutral; AND 2. Reasonably related to a legitimate government purpose Unprotected Speech To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment: Inciting imminent lawless action; Fighting words; conduct that itself inflicts injury or tends to incite immediate violence Obscenity; Defamatory speech; AND Some commercial speech Inciting Imminent Lawless Action. Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that: 1. Imminent illegal conduct is likely; AND 2. The speaker intended to cause it. Fighting Words. Speech can be restricted if it constitutes fighting words. Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person. Words that are merely insulting or annoying are NOT enough. The Supreme Court does NOT tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender). 11 True threats are NOT protected by the 1st Amendment (e.g., cross-burning carried out with an intent to intimidate). Obscenity. Speech can be restricted if it constitute obscenity. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: 1. Appeals to the prurient interest in sex, using a community standard; 2. Is patently offensive; AND 3. Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard. Commercial Speech. Generally, commercial speech is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it: 1. Serves a substantial government interest; 2. Directly advances that interest; AND 3. Is narrowly tailored to serve that interest. Therefore, complete bans on truthful advertising of lawful products are very unlikely to be upheld due to a lack of narrow tailoring. Freedom of Association Freedom of Association Freedom of Association protects the right to form or participate in any group, gathering, club, or organization without government interference. However, the government may limit this right if they can satisfy strict scrutiny. Public Employment. A person may only be punished or deprived of public employment based on association if that individual: 1. Is an active member of a subversive organization; 2. Has knowledge of the organization’s illegal activity; AND 12 3. Has a specific intent to further those illegal objectives. Religious Freedoms Free Exercise Clause The Free Exercise Clause prohibits the government from punishing someone on the basis of her religious beliefs or interfering with her exercise of religion. For example, it forbids: State governments from requiring office holders or employees to take a religious oath; States from excluding clerics from holding public office; AND Courts from declaring a religious belief to be false. The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being. The court has never held an asserted religious belief to be not religious for 1st Amendment purposes. The government can deny benefits or impose a restriction on someone based on her religious beliefs so long as there is a compelling interest (i.e., satisfies strict scrutiny). However, the Supreme Court has never found an interest so compelling that it justifies such action. Establishment Clause The Establishment Clause, along with the Free Exercise Clause, compels the government to pursue a course of neutrality toward religion. Government action challenged under the Establishment Clause will be found invalid, unless the action: 1. Has a secular purpose; 2. Has a primary effect that neither advances nor inhibits religion; AND 3. Does NOT produce excessive government entanglement with religion. This is known as the Lemon Test. However, more recent cases have simply focused on whether the action is neutral between the religious and nonreligious when there is no endorsement of a particular religion. 13