12. Con Law: Fundamental Rights

Card Set Information

Author:
rubidoux
ID:
145535
Filename:
12. Con Law: Fundamental Rights
Updated:
2012-04-03 18:04:21
Tags:
con law fundamental rights rubidoux
Folders:

Description:
fundamental rights
Show Answers:

Home > Flashcards > Print Preview

The flashcards below were created by user rubidoux on FreezingBlue Flashcards. What would you like to do?


  1. FUNDAMENTAL RIGHTS:
    GENERAL PRINCIPLES
    If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not to others, it is an equal protection problem. The applicable standard is always strict scrutiny. Thus, to be valid the gov'tal action must be necessary to protect a compelling interest.
  2. RIGHT TO PRIVACY:
    USE OF CONTRACEPTIVES
    A state cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of such contraceptives to persons under 16 who do not have approval of a licensed physician.
  3. RIGHT TO PRIVACY:
    ABORTION
    The right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. However, the court has also held that the state has a compelling interest in protecting the woman and fetus, which may be in conflict.

    • PRE-VIABILITY RULE: A state may adopt regs protecting the mother's health and the life of the fetus only if the reg does not impose an undue burden or substantial obstacle on the woman's right to have an abortion. A statute will not impose a substantial obstacle or an undue burden simply because it has the incidental effect of making it more difficult or more expensive to obtain an abortion.
    • -- Informed consent -- no undue burden;
    • -- Waiting period -- no undue burden;
    • -- Parental consent -- no undue burden;
    • -- Spousal consent -- UNDUE burden;
    • -- Physician only requirement -- no undue burden;
    • -- Partial-birth abortion ban -- no undue burden.

    POST-VIABILITY RULE: The state's interests in the fetus's life can override the woman's right to choose an abortion, but it does not override the state's interest in the woman's health. Thus, after viability the state can prohibit a woman from obtaining an abortion unless the abortion is necessary to protect her life or health.

    Neither federal nor local gov'ts are required to grant medical benefit payments for abortions to indigent women, even if they grant benefits to indigent women for childbirth services.

    A state may prohibit public abortion funding by prohibiting the use of public facilities for abortions and prohibiting any public employee acting with in the scope of her employment from performing or assisting in the performance of abortions.
  4. RIGHT OF PRIVACY:
    MARRIAGE
    Although not all cases examining marriage regs clearly use the compelling interest standard, a law prohibiting a class of adults from marrying is likely to be invalidated unless the gov't can demonstrate that the law is narrowly tailored to promote a compelling or overriding interest.

    The Court has recognized a marital zone of privacy, so it will likely grant broader protection to private sexual relations between married persons than it does concerning non-married persons.

    A statute or regulation that restricts the constitutional rights of prison inmates will be upheld as long as the statute is reasonably related to legitimate penological interests. Even so, a prison reg that prohibited marriage of an adult prisonerunless the prison superintendent approved was held invalid because the regulation was not reasonably related to any asserted penological interest.
  5. RIGHT TO PRIVACY:
    OBSCENE READING MATERIAL
    The right of privacy encompasses the freedom to read obscene material in your home, except for child pornography. It does not include the right to sell, purchase, receive, or transport obscene material.
  6. RIGHT TO PRIVACY:
    FAMILIES LIVING TOGETHER
    Includes the right of family members -- even extended ones -- to live together. Thus, a zoning ordinance cannot keep family members from living together because there is no compelling interest.
  7. RIGHT TO PRIVACY:
    RIGHTS OF PARENTS
    Parents have a fundamental right to make decisions concerning the care, custody, and control of their children.

    State may prescribe reasonable educational standards, but may not require that all children be educated in public schools. Neither may the state forbid education in a language other than english.
  8. RIGHT TO PRIVACY:
    INTIMATE SEXUAL CONDUCT
    The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature.
  9. RIGHT TO PRIVACY:
    FREEDOM FROM COLLECTION AND DISTRIBUTION OF PERSONAL DATA
    The right of privacy does not prevent the state from accumulating and computerizing the names and addresses of patients for whom dangerous drugs are prescribed.

    The state can republish the recording of an official act, such as an arrest.
  10. RIGHT TO VOTE:
    GENERAL PRINCIPLES
    The right is fundamental; thus, restrictions on voting, other than on the basis of age, residency, or citizenship, are invalid unless they can pass strict scrutiny.

    RESTRICTIONS:

    -- short residency requirements okay because of compelling interest in only allowing bona fide residents to vote, longer requirements not okay because of right to travel, equal protection

    -- laws that prohibit non-residents from voting valid as long as they have a rational basis

    -- conditioning vote (or right to be a candidate or be an office-holder) on property ownership invalid under EP clause because not necessary to any compelling interest

    -- poll taxes invalid under 24th amendment, and also violate EP because wealth is not related to the gov't's interest in having voters vote intelligently.
  11. RIGHT TO VOTE:
    ONE PERSON ONE VOTE PRINCIPLE
    The EP clause was interpreted to prohibit state dilution of the right to vote, and article I has been interpreted to put the same limit on federal gov't.

    Whenever a gov'tal body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly (1 person, 1 vote).

    The USSC requires almost exact mathematical equality between congressional districts within a state. (page 94)

    For state and local elections, less equality okay, but must not be unjustifiably large. If a state can show that the deviation from mathematical equality between districts is reasonable and tailored to promote a legitimate state interest, the districts will be upheld.

    Standardless recount? (p. 95)
  12. RIGHT TO VOTE:
    GERRYMANDERING
    Race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass muster under strict scrutiny. A district's bizarre shape can be used to show that race was the predominant factor in drawing the boundaries, although it doesn't necessarily establish that finding.

    The person challanging the reapportionment has the burden of proving the race-based motive.

    The USSC has never ruled that a legislative redistricting map should be overturned on the basis of political gerrymandering. Probably a nonjusticiable issue.

    multi-member districts (p. 96)?
  13. RIGHT TO VOTE:
    CANDIDATES AND CAMPAIGNS
    FEES: An unreasonably high filing fee, which was not tailored to promote a substantial or overriding state interest, might be held totally invalid so that no candidate would have to pay the fee. A reasonable valid fee would have to be waived for an indigent candidate who could not pay it.

    Restrictions on the ability of someone to be a candidate must be examine to see if they violate either the 1st amendment right of political association or the 14th amendment EP clause. Such regs are judged on a sliding scale of scrutiny.

    The gov't may require a supermajority for voter referendums, even though it might give a minority disproportionate power.
  14. RIGHT TO TRAVEL:
    INTERSTATE TRAVEL
    • Encompasses the right:
    • (1) to leave and enter another state; and
    • (2) to be treated equally if they become permanent residents of that state.

    When a state uses a durational residency requirement for dispensing benefits, it will be subject to strict scrutiny. The gov't must show how the wiating period is tailored to promote a compelling or overriding interest. The area is a bit murky, but never uphold a reg because there is a rational relationship.

    • A state law that distinguishes between residents on the sole basis of their length of residency will serve no legitimate state interest.
    • ------------------------------------
    • The USSC has not declared that the right to international travel is fundamental although the right appears to be protected from arbitrary federal interference by the DP clause. Mere rationality may apply.
  15. RIGHT TO REFUSE MEDIAL TREATMENT
    The USSC has held that the right to refuse medical treatment is a part of an individuals liberty that is protected by the DP clauses. However, the court has not ruled that this aspect of liberty is a fundamental right and has not explained which standard of review applies.

    An individual can be forced to submit to vaccination because of the gov'tal and societal interest in preventing the spread of disease.

    The court has assumed that a mentally competent adult has the right to refuse lifesaving medical treatment.

    • Under the DP clause the gov't may involuntarily administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to ake him competent to stand trial if:
    • (1) the treatment is medically appropriate,
    • (2) the treatment is substantially unlikely to cause side effects that may undermine the fairness of the trial, and
    • (3) considering less intrusive alternatives, the treatment is necessary to further important gov'tal trial-related interests.

What would you like to do?

Home > Flashcards > Print Preview