Con Law Flashcards
Privileges and Immunities - Article IV
Non-residents, commercial activities or fundamental rights, state law must be necessary to achieve an important gov purpose and there are no less restrictive means available
14 - P & I
Applies ot NEW residents, e.g., right to travel
Residency requirements
Will also violate Equal Protection (right to travel is a fundamental right!)
Dormant Commerce Clause
(1) Has Congress authorized in this area?
(2) Preempted?
(3) Discriminates?
if so, must be necessary to achieve important non-economic gov purpose AND no nondiscriminatory alternative available
EXCEPTION: Market Participant
(4) Unduly burdens?
Balance benefit/local legit interest and burden, which outweights
11th amendment
State cannot be sued by private parties in federal court; applies to private parties, foreign nations, Tribes
Exceptions:
Another state/U.S. can sue a state in Fed Court
Congress can authroize suits under 13/14/15
Can sue state official for injunction
Rights
Must have state action! Private companies acting not subject to 14/5 unless they are acting like a state
Procedural due process
Deprivation of life, liberty, property
Public employees AT WILL don’t have more protection than private employees
Liberty includes exercise of freedom of speech (e.g., gov employer fires becuase of speech related to public concern but not related to official duties, balance the interests)
Public education, welfare, exc
standing
injury in fact (concrete, particularlized)
Causation, redressability
Senator can’t sue over legislative veo
Standing - third party
Can assert if (1) difficult for third party to assert own rights and (2) close relationship exists between claimant and third party
Organizational standing
(1) members are injured
(2) members injury relates to org purpose
(3) members do not need to be participating in the lawsuit
Hierarchy of laws
Constitution –> Treaties and federal statutes –> Executive Agreements –> State Law
What might a discriminatory law against interestate commerce invalidate?
Dcc, Article 4, Equal Protection
State Taxes
(1) is the tax preempted?
(2) Does the tax discriminate against interstate commerce (invalid if so)
(3) does the state tax unduly burden interstate commerce (no substantial nexus, unfair apportionment, or no fair relationship between tax and benefits) –> invalid if so
Due process property interests
welfare benefits, public education, government liceneses, tenured gov employment or term employment (but not at will)
Balancing factors for OTBH
Important of the individual’s interest; value of procedural safeguards and adequacy of current ones, against government interest in efficiency
Due process rights
Can be waived voluntarily and knowingly
Substantive due process
Applies to the fed gov Fundamental right (privacy, voting, travel, 1st amendment) SS
Equal Protection & Residency Requirements
thirty-day residency to vote and 1 year for divorce are upheld, other 1 year (voting, medical care, welfare) are NOT
Right to vote - proportions
Remember, 0 Congressional must be almost exactly proportionaly, state/local must be substantially similar (up to 16% variance is ok)
14: Discrimination
(1) discriminates on its face
(2) discrimininates in its application
(3) discriminatory motive/purpose and P shows disparate impact AND discriminatory purpose (impact alone not enough)
Challenger bears the burden of showing discriminatory!
Contract Clause
State and local gov cannot impair contract rights that are in existance at time of regulation
If private contract: must narrowly tailored to achieve an important state interet
if public: strict scrutiny
Ex post facto laws?
Only apply to criminal cases
Speech
Expressive conduct, words, symbolic speech
Unprotected speech
Incitment Fighting words True threats Obscenity Defamatory speech Some commercial speech
Incitment
intended to produce imminent lawless action and likley to produce such action
fighting words
personally abusive words that are likley to incite immediate physical retaliation
True threats
Words that are intended to convey to someone the serious threat of bodily harm
Obsensity
(1) applies to purient interest (2) patentely offensive (3) lacks serious value
Zoning / obscenity
allowed if doesn’t ban entirely and reduces secondary efects froms uch businesses
defamation
if abput public official or public figure or public concern, elements of defamation AND falsity and fault must be proven
Public figure suing: must show malice
private: negligence
Commercial speech
False/misleading can be regulated
True can be regulated so long as it (1) narrowly tailored to (2) substantial gov interest and (3) directly advances the interest (not least restrictive means)
content based speech
subject to SS
content-neutral in a public forum
must be (1) narrowly tailored to serve important gov interest and (2) leave open channels of communication Can't be overbroad, vague, unfettered! Those are facially invalid, and even one doing unprotected speech won't be subject ot them
non-public forum
Viewpoint neutral AND RB applies
if viewpoint, subject to SS
Note - if content-based, that’s fine - it has to be viewpoint neutral
Gov employee speech
If within gov official duties, can be regulated or punished based on content, even if issue of public concern
If not within duties, and within public concern, speech can be punished (e.g., fired) only if gov interest in providing public service outweights interest as citizen on commenting upon matters
public issue is taken expansively
if fired in violation (e.g., not within duties, matter of public concern), then entitlted to hearing on if 1st amendment rights were violated
Prior restraints
Presumptively unconstitutional, SS of highest order (e.g., war)
Nude dancing, zoning laws on adult theatres
IS (important gov interest)
right of press
Cannot be restricted, except for narrowly tailored sanction designed to further state interest of highest order
Can publish things of matter of public concern!
Applies to unlawfully obtained speech so long as (1) person publishing wasn’t one who obtained it illegally and (2) relates to matter of public concern and (3) speaker did not have a high expectation of privacy
Schools
Speech can be regulated to serve purpose
13th amendment
likley to apply if congress is regulating PRIVATE action that is badge or incident or slavery (e.g., private contracts)
