Con Law Flashcards
Equal Protection Clause of 14th Amendment
The Equal Protection Clause of the Fourteenth Amendment provides that “no state shall…deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause is generally the constitutional safeguard that a citizen or group of citizens will use to challenge a law that is based on some kind of classification.
Due Process Clause
Due Process Clause of the Fifth Amendment applies to the federal government, not to state action.
The Privileges and Immunities Clause of Article IV
The Privileges and Immunities Clause of Article IV prevents a state from treating citizens of another state in a discriminatory manner; it does not prevent a state from discriminating against its own citizens.
The Privileges and Immunities Clause of 14th Amendment
Privileges or Immunities Clause of the Fourteenth Amendment has very limited application. This provision prevents states from infringing on the rights of national citizenship, and is usually only successfully invoked in cases involving the right to travel between the states.
Takings Clause
A taking occurs when there is a possessory taking or regulatory taking, or even an elimination of a property right.
A possessory taking occurs when the govt. takes or physically occupies property.
A regulatory taking is when the govt. adversely affects property value such as a denial of all economic value and sometimes a denial of nearly all value.
A government may destroy property in response to a public peril without the payment of just compensation.
Free Exercise Clause
Under the Free Exercise Clause, a state’s neutral laws of general applicability that have an incidental impact on religious conduct are subject to rational basis review
President Appointment Powers
With regard to the appointment of certain high- level federal officials (e.g., cabinet officers, judges) by the president, the approval of the Senate is required.
Treaties and Executive Agreements
Once ratified, by the Senate, a treaty has the same authority as a federal statute.
A treaty must be ratified by a 2/3 majority of the Senate.
Executive agreements do not require Senate approval.
Procedural Due Process: When It Applies
Procedural due process applies only to intentional governmental action and only when life, liberty, or property has been taken.
Government Regulation of Commercial Speech
The regulation must directly advance the governmental interest.
Level of Scrutiny to Apply
Suspect Classifications or Fundamental Right = strict scrutiny
- law is necessary to achieve a compelling govt. interest
Quasi-Suspect Classifications (Legitimacy/Gender) = intermediate scrutiny
- law is substantially related to an important govt. interest
All Other Classifications (Age/Wealth) = rational basis review
- law is rationally related to a legitimate govt. interest
- alienage is strict scrutiny except when state/local participation in govt. functions applies then rational basis.
Lemon Test under Freedom of Religion: Free Exercise Clause/Establishment Clause
Does the law have a secular purpose?
Does the law have a primary effect that neither advances or inhibits religion?
Does the law avoid excessive govt. entanglement with religion?
If govt. discriminates against a specific religion = strict scrutiny; apply Lemon test when govt. restricts or burdens religion w/out discriminating against a specific religion or faith.
Federal Taxation of a State
A federal tax that is not directly imposed on a state, but instead on payments made by the state to a private person, is constitutional.
Voting Rights
Pursuant to the Equal Protection Clause, the principle of “one person, one vote” requires that one person’s vote must be essentially equal to any other person’s vote. The “one person, one vote” principle applies to local elections of entities that perform governmental functions, even when the functions are specialized rather than general in nature, such as a local school board. The restriction of voting to a class of persons (e.g., landowners) has generally been found to violate the “one person, one vote” principle, except in the case of water-district elections.
Although the “one person, one vote” principle that is based on the Equal Protection Clause of the Fourteenth Amendment does apply to state legislative districts, a state may draw its legislative districts on the basis of total population rather than eligible or registered voters. In addition, a variation of less than ten percent in the size of a state legislative district is rebuttably presumed to be a minor deviation that does not constitute a prima facie case for discrimination.
