Con Law Flashcards
Rational Basis:
- Who bears the burden?
- “Legitimate government purpose” requirement
- When does it apply?
- Challenger
- Law must be “rationally related” to a legitimate government purpose
- Applies when no fundamental rights are in issue, and no suspect classes are threatened.
Intermediate Scrutiny:
- Who bears the burden?
- “Legitimate government purpose” requirement
- When does it apply?
- Neither. But assume government.
- Law must be “substantially related” (ie. “narrowly tailored”) to an important government purpose
- Applies when a quasi-suspect classes (gender) are threatened.
Strict Scrutiny:
- Who bears the burden?
- “Legitimate government purpose” requirement
- When does it apply?
- Government.
- Law must be “least restrictive means” to achieve a “compelling government interest”
- Applies when a fundamental right or a suspect class is threatened.
There are two types of protected “speech.” What are they? (exact phrases referring to what each type is doing)
(1) Conduct that is inherently expressive.
(2) Conduct that is (a) intended to convey a message and (b) is reasonably likely to be perceived as conveying a message.
1st Am. Incitement test? (exact phrase)
(1) Intended to produce imminent lawless action
(2) Likely to produce such action.
1st Am Fighting Words test? (exact phrase)
Personally abusive words that are likely to incite immediate physical retaliation in an average person
1st Am True Threats test? (exact phrase)
Words intended to convey serious threat of bodily harm
1st Am. Obscenity test? (exact phrase)
(1) Appeals to the prurient interest in sex (contemporary community standard)
(2) Is patently offensive (contemporary community standard) AND
(3) Lacks serious value (national, reasonable person standard)
Defamatory speech elements for public figure? (ie. defamation plus what two elements?)
(1) Falsity
2) Actual malice (knowledge it was false or reckless disregard for the truth
Describe how punitive damages work for private individuals who sue on matters of public concern. Do the same for matters of private concern.
PRIVATE PERSON -> PUBLIC CONCERN: Must show actual malice to collect punitive damages
PRIVATE PERSON -> PRIVATE CONCERN: No 1st Am standard for punitive damages (use state law)
Commercial Speech: What 3 categories of speech may government ban outright?
- False
- Misleading
- Ads for illegal products
If a state tax on interstate commerce discriminates against a natural person who is a nonresident, which of the following Clauses is least likely to be relevant in determining whether the tax is valid?
(A) The Privileges and Immunities Clause of Article IV
(B) The Equal Protection Clause
(C) The Privileges or Immunities Clause of the Fourteenth Amendment
(D) The Commerce Clause
(C) The 14th Am Privileges or Immunities Clause does not apply to state taxes on interstate commerce discriminating against nonresidents. Rather, it applies when a state denies its OWN citizens rights of national citizenship.
The Commerce Clause would be relevant in determining the validity of a state tax on interstate commerce that discriminates against a natural person who is a nonresident. The negative implications of the Commerce Clause (or “the Dormant Commerce Clause”) prohibit taxes that discriminate against nonresidents.
Article IV’s Privileges and Immunities Clause is relevant because it prohibits states from discriminating against nonresidents’ commercial activities.
The Equal Protection Clause prohibits states from unreasonably discriminating among similarly situated people.
Distinguish Priv/Immunities Clause of IV Am. with XIV Am.
Fourth Am: prohibits discrimination by a state against nonresidents
Fourteenth Am: prohibits states from denying priv/imm of national citizenship
HINT: Think of the historical context of each!
A state located in the southern half of the United States experienced a strong influx of retirees, due in part to its mild winters and in part to the generous health benefits that the state historically provided to its elderly residents who fell below the federal poverty line. The state’s Office of Budget Management determined that the influx of retirees would bankrupt the state’s health care benefit fund within five years. To preserve the fund and ensure the health of its citizens, the state revised its health care statute to make persons ineligible for coverage until they have lived in the state for at least one year.
If a retiree who was denied benefits because she just moved to the state challenges the constitutionality of the statute in federal court, is she likely to prevail?
(A) No, because the state has a compelling interest in maintaining the fiscal integrity of its health care fund.
(B) No, because the states do not have a constitutional duty to provide health care benefits to retirees even if they fall below the federal poverty line.
(C) Yes, because the requirement improperly burdens the right of interstate travel in violation of the Equal Protection Clause of the Fourteenth Amendment.
(D) Yes, because the requirement deprives some retirees of certain privileges and immunities in violation of the Privileges and Immunities Clause of Article IV.
(C) Interstate travel is assured by the US Constitution, which triggers 14th Am. EPC protections (it also triggers 14th Am Priv/Imm Clause). Duration of residence requirements are subject to strict scrutiny under that clause, and the Court has held that state financial interests cannot ever satisfy that threshold.
State the Establishment Clause’s Lemon Test
Laws are invalid unless they:
(1) Have a secular purpose
(2) Have a primary effect which neither advances nor inhibits religion, AND
(3) Do not involve excessive government entanglement with religion
