Does the Constitution protect against wrongful conduct by the government or private citizens?
The government, not private individuals.
⚠️ Exceptions:
- Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
- Individual and gov. are excessively intertwined
- Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
What are 3 main powers Congress can use to limit discrimination by private citizens?
- 13th Amendment;
- Commerce Clause; and
- Federal purse power
Who does the Bill of Rights apply to?
- Federal government; and
- States via the Fourteenth Amendment Due Process Clause (most provisions, see incorporation card)
Which provisions of the Bill of Rights are not incorporated to the states?
- 3rd Amendment
- Right against quartering (only incorporated in 2nd Circuit)
- 5th Amendment
- Right to indictment by a grand jury in criminal cases; and
- 7th Amendment
- Right to a jury verdict in civil cases
Define
reverse incorporation doctrine
Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5th Amendment
Test for strict scrutiny
Law will be upheld if:
- It is necessary to achieve a compelling/crucial government interest; and
- Is the least restrictive means possible to achieve that interest (narrowly tailored)
When is strict scrutiny triggered?
if law involves a suspect classification or fundamental right
Test for intermediate scrutiny
Law will be upheld if it is substantially related to an important government interest
What are the requirements for strict and intermediate scrutiny?
Strict scrutiny: Government must demonstrate the classification is necessary to achieve a compelling governmental interest and is narrowly tailored to achieve that interest.
Intermediate scrutiny: Government must demonstrate the classification is substantially related to an important governmental interest.
Test for rational basis review
Law will be upheld if rationally related to a legitimate government purpose
⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary
Who bears the burden of proof in rational basis review?
Challenger; must prove that law is unconstitutional
What is Due Process?
- Requirement that the government cannot deprive its citizens of life, liberty, or property without due process of law.
- Two types: procedural and substantive
- Rooted in both the 5th and 14th Amendments
What does procedural due process require (generally)?
If government is depriving an individual of life, liberty, or property, individual must be given:
- Notice;
- Opportunity to be heard (i.e. hearing); and
- Decision by a neutral arbitrator
What constitutes deprivation of liberty?
Significant restriction on freedom of movement, action, fundamental rights, or any other rights guaranteed/provided by the Constitution
What constitutes deprivation of property interests?
Deprivation of a “legitimate claim of entitlement.”
Examples:
- Public education;
- Public employment (only if employee is tenured or can be fired for cause; “at-will” employment does not trigger due process);
- Welfare benefits; or
- Government-issued licenses
If a person has not yet received benefits, do they have a property interest in them?
No, can be terminated without due process
The court balances what 3 factors to determine the amount of process due?
- Importance of the protected interest;
- Risk of deprivation with current procedures and value of additional procedures; and
- Government burden (fiscal and administrative) to provide process
Is a hearing prior to terminating welfare benefits required?
Yes
Is a hearing prior to terminating disability benefits required?
No, only a post-termination evidentiary hearing
Is a hearing prior to terminating public employment required?
No, only a post-termination evidentiary hearing.
⚠️ Notice and an opportunity to respond to the decision-maker is required before termination.
Does the government need to provide notice before seizing personal property?
No, only real property
What is substantive due process?
Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.
More info: Substantive Due Process
Economic and most social welfare regulation is subject to what level of scrutiny?
Rational basis review (rationally related to a legitimate gov. purpose)
⭐️ Highly likely to be upheld. Court has not struck down economic regulation for violation of substantive due process since 1937.
What is the Contracts Clause?
Prohibits states from substantially impairing existing contract duties. Article I, Section 10.
⚠️ Congress can still restrict contracts that will be made in the future
