Con Law 2 Essentials

Question 1

3 Standards of Review

Answer 1

Rational Basis:
1) Legitimate Purpose
2) Rationally Related Means
Burden on plaintiff

Intermediate Scrutiny:
1) Important Purpose
2) Substantially Related Means
Burden on gov

Strict Scrutiny:
1) Compelling Interest
2) Narrowly Tailored Means
Burden on Gov

Question 2

Procedural Due Process Flowchart

Answer 2

Is the government, in a non-legislative capacity . . .

1) depriving a person of . . .
2) a life, liberty, OR property interest?

If so, does the government owe more process than it has already given?

If so, what additional process is owed, and is it owed before or after the deprivation?

Is this a criminal proceeding . . .

. . . or something else?

“Deprive” requires intent or maybe recklessness
Liberty interest = big deal
Property interest = more than unilateral expectation

Question 3

Matthews Balancing Test

Answer 3

PDP Requirements may change depending on the:
1) Private Interest affected;
2) The risk of erroneous deprivation under the contested procedure, and probable value of additional or substitute safeguard; and
3) The government’s interest burdened by those safeguards

Question 4

Stigma+ Doctrine

Answer 4

PDP claims require more than just damaged reputation interest. Must have stigma + deprivation of something else (property or liberty)

Question 5

Article 4 P&I Clause

Answer 5

Art 4 = prohibits state governments from discriminating against out-of-state residents without substantial reason (IS)

Flowchart:

First, is the state discriminating against a non-citizen?
- If Yes, is it a fundamental constitutional right?
-> If Yes, apply intermediate scrutiny.
- If Yes, is it a fundamental NON-constitutional right?
-> Conduct non-constitutional right analysis. A non-constitutional fundamental right is a right that bears on the vitality of the nation as a single entity.
–» If this is a non-constitutional right and it involves earning a living or plying a trade, there is 1 more question before we go to intermediate scrutiny: was there discriminatory purpose? This is the protectionism question. Is the law adopted to give a competitive advantage in business to that state’s own people? If the answer is no, and there is no protectionism, then the analysis ends there and the Art 4 argument dies.
—»> If Yes, there was discriminatory purpose in plying a trade, then go to intermediate scrutiny.
–» If the fundamental non-constitutional right is about buying property, apply intermediate scrutiny.
–» If the fundamental non-constitutional right is about something other than earning a living, but you can convince the court it bears on the vitality of the nation, then you can go straight to intermediate scrutiny

Question 6

14th Amendment P&I Clause

Answer 6

Slaughterhouse gutted the 14th Amendment P&I clause.

Its current function is part of the 3rd component of the right to travel (the right to move to a new state and make it your home). It’s not an Art 4 problem because you are not a visitor.

State must pass strict scrutiny if a state isn’t treating a new resident as a fully fledged citizen.

Question 7

How to determine whether to apply Art 4 P&I or 14th A P&I?

Answer 7

If it is unclear whether a person has made a state their new home, analyze both Art 4 and 14th A. If it is their new home, use 14th A. If not their new home, use Art 4. If you move to a new state and are treated poorly because you are a newcomer, use strict scrutiny.

Question 8

Selective Incorporation Test (from Timbs v. Indiana)

Answer 8

Incorporation refers to applying the BoR against the states using the Due Process clause.

Ask whether the textual provision from the BoR is:

1) Deeply rooted in the nation’s history and traditions OR
2) Implicit in the concept of ordered liberty.

Policy Issue: This test opens the door to unenumerated rights being created and applying them to restrict the states. It does this by reading rights into the word “liberty” in the 14A.

If court grants protection to an unenumerated right, it binds both states and feds.

This test opened the door to grant unenumerated rights “fundamental” status and be protected via substantive due process.

Question 9

Substantive Due Process Basics

Answer 9

Under Substantive Due Process, the government must demonstrate a sufficient justification to deprive individuals of certain rights, both fundamental and non-fundamental rights. It critiques the adequacy of the gov’s reasons!

5A protects from Feds; 14A protects from States

Follow this sequence:
1) Party asserts an unenumerated right under 14A
2) Court determines if it’s a fundamental right using the selective incorporation test
…1) deeply rooted OR (maybe AND after Dobbs)
…2) implicit in ordered liberty

Fundamental Rights get SS
Not a fundamental right? Get RB

Question 10

Lochner Era (1897-1937) and Retreat

Answer 10

1) Lochner Era: Lochnerizing means using an aggressive sense of judicial review to strike down democratically elected legislation: “Persuade us as if we’re legislators.”

Lochner Era SoR: “Somewhere in intermediate land.” They didn’t use modern language of SoRs but they are closest to what we would now call intermediate scrutiny.

2) Lochner Retreat: The court around 1937 sets itself on a trajectory to be much more deferential to legislation, almost to the point of not really having SDP.

3) Griswold marked the reawakening of more aggressive SDP jurisprudence akin to Lochner, but focused on family and privacy issues like contraception, marriage, and abortion.

Question 11

Abortion Jurisprudence

Answer 11

Roe v. Wade = Roe used the incorporation test to find the meaning of “liberty” in the 14A included the right to Privacy that covered both contraception and abortion. Applied SS to abortion laws under this framework:
The state’s compelling interest in the mother’s health begins after Trimester 1 because at that time, abortion becomes more dangerous than childbirth. Its compelling interest in the child’s life begins at the end of T2 because at that point the child can live outside the womb.

Casey = Casey changed this framework because T1 and T2 were headed on a “collision course”. After viability, the states can ban abortion except in cases where the life or health of the mother is at risk. Before viability, a state can restrict abortion but cannot impose an UNDUE BURDEN (substantial obstacle) on a woman’s ability to get an abortion.

Dobbs = Returned the issue of abortion to the states. Cabined stare decisis. Retreated from SDP toward deferential view. Court says that abortion is not historical/traditional in the US because it was criminalized for a long time in most places. Because people in diff states have diff views on abortion, ordered liberty should allow them to order themselves as they see fit even if that differs regionally.

Question 12

Fundamental Rights

Answer 12

Members of extended families living together (zoning ordinance said no more than 6 people in a house, struck down)

Right of custodial parent to prevent grandparent from getting visitation rights (state can’t force parent to let grandparent visit)

Maintaining custody of kids (state must pass strict scrutiny)

Ability of prison inmates to get married without warden’s approval

Marriage of people failing to pay child support obligations

Interracial marriage (Loving v. Virginia)

Voting - unless you’re a convicted felon, in which case it does not violate any fundamental right to deny your vote

Contraception

Right of consensual sexual relations between adults

Question 13

NOT Fundamental Rights

Answer 13

You don’t have a fundamental right to a K-12 education

Physician-assisted suicide (though possible exception to this with terminal illness + great pain)

Question 14

3 Steps to Analyze EP Problems

Answer 14

1) Identify the trait that the government uses to classify people. Without relative treatment based on different trait, there is no EP claim.
2) Determine which classification that trait falls under (suspect, quasi-suspect, or neither). This will determine the SoR.
3) Evaluate the gov’s actions under that level of scrutiny.

Question 15

Equal Protection Standards of Review

Answer 15

Strict Scrutiny Classifications:
1) If a fundamental right (vote, access ballot as political candidate, travel to another state, marry/procreate/live as family, access courts) is being deprived, courts apply strict scrutiny. The burden is on the government to prove both compelling gov interest + narrowly tailored. This is uncommon because of SDP claims and 1A claims used instead.

2) Suspect classifications also receive strict scrutiny. These include: race, religion, national origin, or lawful alienage. A plaintiff asserting EP claim based on suspect classification must prove discriminatory intent, not just disparate impact. Discriminatory intent need not be sole or primary motivating factor. Absent intent, strict scrutiny does not apply. Intentional racial discrimination always receives strict scrutiny even if benign motives like affirmative action.

Intermediate Scrutiny Classifications:
1) Semi- or quasi-suspect classifications receive intermediate scrutiny. These include: gender or illegitimate birth. Burden is on the gov to prove it is an important gov objective substantially related to achieving its objective.

Rational Basis Classifications:
1) Everything else. There must be legitimate, conceivable gov objective and the means must be rationally related. Burden of proof on P.

Animus:
Fails regardless of SoR

Question 16

Underinclusivity Rules

Answer 16

Rule: A law that is underinclusive per se can still be constitutional.

Policy: The gov has to start somewhere, and it’s ok if it starts small. Better to let lots of guilty go free than to start by punishing innocents (i.e. better underinclusive than overinclusive).

Exception: Underinclusivity could be a sign of something else, like animus.

Question 17

Affirmative Action in Higher Ed

Answer 17

Regents of Univ. of California v. Bakke (1978) = A public university may not discriminate on the basis of race even for benign admissions if it does so by setting aside seats for certain races or using quotas.

Grutter v. Bollinger and Gratz v. Bollinger (2003) = Giving non-white applicants 20 out of 100 points by default was not allowed. Meanwhile, their law school said they needed a CRITICAL MASS of diversity, which the Court could not get them to define clearly. School said “just trust us”. The majority 5-4 said sure ok, but we expect it won’t be necessary in 25 years.

Students For Fair Admission v. Harvard (2023) = Struck down affirmative action using strict scrutiny (because racial classification). This case was about higher ed schools that took race into account for the sake of being inclusive. The difference between this and the earlier cases is that the Court demanded metrics/timelines. It said the colleges’ justifications weren’t measurable under strict scrutiny rubric and they were too amorphous to receive meaningful judicial review.

What CAN colleges still do regarding race? You can ask applicants about their experiences related to race, but it needs to be about how their lived experiences affected them.

Question 18

Marks Doctrine

Answer 18

When you have a split opinion, you want to look to the justice who agrees with a majority about who wins and loses. At least 5 authors must agree about a winner and loser. But if there is no majority for the rationale, you as a lower court follow the opinion that gives the loser the most flexibility going forward and gives the loser the loss on the most favorable terms.

Question 19

Sex-Based Classifications

Answer 19

Receive IS (from Craig v. Boren).

Exceedingly Persuasive Justification Test: this was added to the Intermediate Scrutiny test in VMI. Scalia said it made IS more like SS, but Ginsburg said no, sex-based classifications should not get SS because of inherent physical differences.

Question 20

Test for a Non-Facially Discriminatory Law

Answer 20

To show that a classification is being made, P must show that both 1) discriminatory effect / disparate impact AND 2) discriminatory intent/purpose exists.

How to Find 1) Discriminatory Effects and 2) Discriminatory Purpose
1) Look at results of the law. Disparate results between groups must exist but do not necessarily prove discriminatory purpose.
2) Look to the full context. The purpose need not be the main or only purpose.

If missing either, there is no non-facial classification being made.

Examples:
Yick Wo = non-facial executive classification violated EP clause

Question 21

Burden Shifting Framework for Proving Discriminatory Purpose

Answer 21

The test for purpose is where the burden-shifting framework applies.

P must at least show that a reasonable person could conclude that discrimination based on the relevant trait was a MOTIVATING FACTOR. Without this classification, the EP claim should fail.

If P does show discriminatory intent was a motivating factor, then the burden shifts to the gov to show that if there were no such motivating factor, it would have passed the same law anyway.

Question 22

Second Amendment Essentials

Answer 22

Bruen adopts only the first part of the two-prong Heller Test, i.e., a text-in-history test to determine if the Government previously regulated that issue. The SoR of Bruen is HISTORY. This scrapped the “means-end” relationship created by the lower courts and said that Heller and McDonald don’t support applying that in the 2A context. Functionally stricter than strict scrutiny, because if history goes against the gov, it does not matter if the gun law is still narrowly tailored to achieve a compelling purpose. This is at the federal level. Individual states often pursue strict scrutiny amendments.

Question 23

Definition of Speech

Answer 23

Ask whether there was:
1) an INTENT to convey a particularized message was present, and
2) whether there is a great LIKELIHOOD the message was UNDERSTOOD.

Some conduct is speech that does not pass the Texas v. Johnson test, i.e., messages which evokes feelings but not messages. (Justice Thomas suggestion: is there an intent to communicate something and is the viewer likely to perceive that something is intending to be communicated),

Question 24

Vagueness Doctrine

Answer 24

Government must put its citizens on notice of acts which may be against the law. It’s a basic due process principle.

In Speech Context – Does the law put a person of reasonable intelligence on notice that their speech is illegal? Applies only as to the specific plaintiff at trial.

Vagueness is a doctrine you ONLY APPLY FOR YOUR OWN BENEFIT, which is DISTINCT FROM OVERBREADTH.

Question 25

Overbreadth

Answer 25

Test – Does the degree to which the statute goes beyond 1st amendment protections represent a SUBSTANTIAL swathe of protected speech that is being chilled by the statute? If substantial, overbreadth kicks in and kills the statute outright.

Specific Steps Showing Relationship between Overbreadth and Tailoring –
1) Interpret the statute to determine what speech is swept up (blue circle). That’s scope.
2) How much of that speech does the First Amendment leave unprotected? (this is the red circle). If it’s content-based, we ask if there’s a compelling gov purpose. If not, then it’s not permissible, so we would draw no red circle. If it is a compelling purpose and narrowly tailored, then we draw the red circle. If it’s a nonpublic forum we ask if it’s reasonable and viewpoint neutral, we do that analysis rather than a traditional SoR. But other forum analyses would call for tailoring analysis.
3) To the extent that the statute goes beyond constitutional permissible regulation, is it substantial? In other words, does blue line exceed red line and if so, to the extent that it does, does it go substantially beyond? If it is, then the statute is facially unconstitutional. Ultimately it’s a judgment call on social cost.

Question 26

Determining Content-Based v. Content-Neutral Speech

Answer 26

To determine whether a government regulation is sufficiently justified, we ask (1) if the governmental interest is unrelated to the suppression of free expression. If No (i.e., it is related to the suppression of free expression), the law is content-based and we have even bigger problems and we will ask even tougher questions, studied later. But if Yes (i.e., it is unrelated to the suppression of free expression), ask (2) if it furthers an important or substantial governmental interest and (3) if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Question 27

Content-Based and Content-Neutral Treatment

Answer 27

Content-Based = Strict Scrutiny

Content-Neutral = Intermediate Scrutiny

Question 28

Content-Based Regulation of Proscribable Speech (R.A.V)

Answer 28

A State cannot take a content-based approach to subcategories of wholly proscribable speech (underinclusive). This fails under SS since all trash could be banned, not just some.

3 Exceptions (where the gov can make content-based distinctions among trash without SS):
1) Hitting the core of the proscribable purpose by banning the most likely problem = this type of speech is the whole reason it’s proscribable in the first place
2) Correlation with secondary effects = harm occurs every time the speech happens
3) Residual Catchall = where the gov suppresses a subcategory but not because of the ideas expressed

Question 29

Proscribable Speech - Incitement

Answer 29

Initial Test – Clear and Present Danger of illegal conduct. With Clear and Present Danger meaning extreme measures which are appropriate if in response to extreme danger.

Current Test – Speech that is intended to incite or produce imminent lawless action and is likely to succeed. We particularly care about the “imminent” illegal action.

Question 30

Proscribable Speech - Obscenity

Answer 30

Three-Part Element Test: (REMINDER - Consent does not matter in determining if material is obscene).
1) Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (jury question)
and

2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law (depended on community standards);
and

3) Whether the work, taken as a whole, lacks serious scientific, literary, artistic, or political value. (“SLAP” Factor) (jury question)

Must find ALL THREE. This is a true “AND” test. The internet complicated the local nature of “patently offensive”.

Question 31

Proscribable Speech - Fighting Words and Threat

Answer 31

Fighting Words:
Speech likely to provoke an immediate violent reaction. Immediate means literally immediate. If you’re 10 feet away and he’s unarmed, that might not count. But if he has a gun and within shooting distance 10 feet away, then could be immediate. Violent reaction means violent physical response.

Threat:
A statement that is intended to make the target of the statement think that the speaker intends to commit unlawful harm against them.

Question 32

Commercial Speech

Answer 32

COMMERCIAL SPEECH PROPOSES A COMMERCIAL TRANSACTION AND GETS INTERMEDIATE SCRUTINY

Determine whether commercial speech is present: the definition is any speech that proposes a commercial transaction. Even if mixed with other speech.

Once commercial speech is present, the test for a government restriction on it asks:
1) Whether the speech is MISLEADING or FALSE. If so, it is fraud and unprotected.
2) If that speech is not false, ask if the concerted government INTEREST is SUBSTANTIAL (i.e. intermediate scrutiny).
3) If it is lawful and not misleading and gov has substantial interest, does the regulation DIRECTLY ADVANCE the government interest and
4) is it NOT MORE EXTENSIVE THAN NECESSARY to achieve that interest? If so, the restriction is legit.

“Not more extensive than necessary” sounds like SS but it’s not. It just means “not substantially broader than necessary” in other words, a pretty good fit. It can be a little overinclusive.

The burden is on the gov for all these questions, like to show substantial interest and that the rule is not broader than necessary.

Example of Commercial Speech that can be banned: Drug Adverts with Pricing.

Question 33

Employee Speech

Answer 33

Threshold Question:

Is the speech within the scope of your employment (job-performing speech)?
Determined by conducting a facts and circumstances test - (i.e., look at the situation as a whole to determine if it implicates an issue arising out of employment).

…If YES, you get ZERO speech.
…If NO it is not job-performing speech, then ask, is the speech INCITEMENT, FIGHTING WORDS, or a THREAT.
…/… If NO, then it’s in their private capacity and the employee might get some 1A protection.

…/…/…Is the private capacity speech addressing a matter of PUBLIC or PRIVATE concern?
…/…/…If private, there is no protection.
…/…/…If public (a matter of public concern), apply the Pickering Balancing Test.

Pickering Balancing Test:
Weigh 1) the employee’s interest in speaking on a matter of public concern and the public’s interest in hearing it vs. 2) the government’s interest in running an efficient workplace.

Question 34

Forums

Answer 34

Public Forum:
A forum exists when the government is a property-owner, it’s typically, public parks, streets, sidewalks. Essentially, public forums are places by long historical practice in which the public has been free to speak. A public forum does not give the government added First Amendment restrictions, but the government also does not get additional regulatory powers.

Designated Public Forum:
Property that is not inherently a public forum but has been designated as such by the government. These spaces are irrevocable. Get no added speech regulating power, basically the same analysis as a public forum.
Content-based = SS
Content-neutral = IS

Limited Public Forum:
A public space that the government has open up for speech by a particular group of people or for certain subjects. Test is the same as nonpublic forums. Regulations on this type of property have to be:
1) Reasonable; and
2) Viewpoint neutral.

Non-public Forum:
Government owned property in which the government is able to retain the power to preserve the property under its control for the use to which it is lawfully dedicated. Regulations on this type of property have to be:
1) Reasonable; and
2) Viewpoint neutral.

Viewpoint neutral still allows gov to say “no speech at all on X topic in this nonpublic forum”. No SS in non-public forums or limited public forums.

Question 35

Time, Place, and Manner Restrictions

Answer 35

Valid if: (Intermediate scrutiny SOR) – interchangeable with O’Brien Intermediate Scrutiny SOR.
1) Is content-neutral; and
2) Is narrowly tailored, but actually this means “substantial” in this context, more like IS and not SS i.e., it asks if the regulation is causally related to the interest; and
3) A significant government interest exists; and
4) There are ample alternative channels of communication (which is almost always going to be yes.)

Question 36

Campaign Speech & Citizens United

Answer 36

Contributions (IS) = money you give to candidate that they spend. Gov can regulate this harder using IS as the SoR. Regular generic IS. Gets lighter SoR because of the risk of corruption being high.

Expenditures (SS) = money you spend yourself to help candidate. Gov faces SS. There isn’t quite as much risk of quid pro quo here as compared to Contributions.

Coordinated Expenditure = A coordinated expenditure happens when a group pays for campaign speech together. Like when a candidate does not hold a rally himself, but partners with a PAC. These get IS like contributions.

Citizens United = Created SUPERPACs which only make independent expenditures and therefore effectively have no caps on money in politics as long as corps give to SUPERPACs.

Question 37

Free Exercise Essentials

Answer 37

You have the right to believe whatever you want, but not the right to ACT on it necessarily.

As a general practice, religious discrimination receives Rational basis review if neutral and generally applicable. (Employment Division v. Smith);

Smith narrowed the scope of Sherbert. If NEUTRAL and GENERALLY APPLICABLE, Sherbert does not apply and instead Smith does.

If a law isn’t neutral OR generally applicable, do strict scrutiny.

Exceptions:
1. Regulations by Feds - Strict Scrutiny (RFRA)
2. Individualized Assessments, like regulations imposed in the employment context - Strict Scutiny (Sherbert v. Verner)
3. Hybrid cases - Wisconsin v. Yoder
4. Undercutting - 3 ways to show the gov is open to crafting exceptions:
1) bureaucracy exists for it (unemployment)
2) running a classroom in a certain way like actress student in Utah
3) crafting exceptions from the outset (school bus)

Ministerial Exception = religious orgs are immune from anti-discrim employment laws

Question 38

Establishment Clause Essentials

Answer 38

A government actor cannot “establish” or pay for any particular religion. It has been incorporated and now applies to both the feds and the states.

Analysis Priority:
1) History (see Marsh and Bremerton)
2) Coercion (varies by politics - see Weisman)
3) Endorsement (2 prongs of Lemon modified)
4) (maybe) Lemon

Education Exception to Paying for Religion: Private choice by parents makes it okay for gov money to go to religious orgs.

Question 39

Establishment Clause Lemon Test, Reasonable Observer, and Endorsement Theory Tests

Answer 39

Lemon Test:
3-Part Element “And” Test.
1) Is the primary purpose of the law secular?
2) Does the main effect of the law either advance or inhibit religion?
3) Does the law promote excessive entanglement?
If the gov action breaks any of these 3, it is unconstitutional under the Establishment Clause.

O’Connor’s Modified Reasonable Observer Test:
1) What would a reasonable observer conclude is the purpose of this law? Secular or religious?
2) What would a reasonable observer conclude is the primary effect of this law? To advance/inhibit religion or not?

Modified Lemon/Endorsement Theory:
1) Would a reasonable person conclude that the purpose of the law is to endorse religion?
2) Would a reasonable person conclude the effect of this law is to endorse religion?