Con Law Big Rules

Question 1

Content-Based Restrictions get what scrutiny?

Answer 1

The government must satisfy strict scrutiny and show that it is narrowly tailored to a compelling governmental interest

Question 2

Content-neutral restrictions

Answer 2

Generally, the government MAY regulate time place and manner of content-neutral speech if the regulation shows

1) it is narrowly tailored to achieve a significant government interest and

2) leaves open alternative channels of communication

Question 3

4 Forum Types

Answer 3

Traditional public forum
Designated public forum
Limited public forum
Non-public forum

Question 4

Scrutiny for Traditional and Designated Public Forum Scrutiny

Answer 4

For content-based restrictions –> strict scrutiny

Content neutral –> intermediate scrutiny

Question 5

Define Designated Public Forum

Answer 5

Not traditionally been available to the public for free speech but that the government chooses to make available

Question 6

Limited Purpose public forums definition

Answer 6

Specifically opened by the government as open to certain groups or topics.

Restrictions must be 1) reasonable and 2) viewpoint neutral

Question 7

Non public forum

Answer 7

Public places that have traditionally been limited for free speech – schools, military bases, jails, inside of courthouse, and airports

Question 8

Standard for Limited Public and Non public forums

Answer 8

1) reasonable
2) view point neutral

Question 9

Religious Speech in Public Forums

Answer 9

Apply regular public forum rules – discrimination on the basis of religious speech is invalid viewpoint/content-based discrimination

Question 10

Free Exercise Clause

Answer 10

Smith Test – 1) neutral and generally applicable –> rational basis

NOT neutral and generally applicable –> strict scrutiny

Question 11

Establishment Clause Test

Answer 11

1) No discrimination amongst religions

2) No endorsement

3) where there’s potential Establishment clause violation unless there’s a history and tradition going back to the Founders

Question 12

Privileges and Immunities Clause Rule

Answer 12

States may not intentionally discriminate against non-residents concerning

a) civil liberties OR
b) important economic activities like ability to earn a livelihood

BUT laws that discriminate against non-residents will be upheld if the State is justified for the discrimination – when

1) substantial reason for difference in treatment AND

2) discriminatory law has a substantial relationship to that reason

DOES NOT PROTECT ALIENS OR CORPORATIONS

Question 13

5th Amendment Takings

Answer 13

The government may take private property for public use if it provides just compensation

public use – rationally related to conceivable public purpose (very liberal)

just compensation – fair market value at the time of the taking

Question 14

Two types of Takings

Answer 14

Possessory taking - physically takes or occupies the property

Regulatory takin – regulations deprive owner of all economically viable use or beneficial use

Question 15

Penn Central Taking Test

Answer 15

Courts taking occurred by balancing private and community interest

1) economic impact
2) extent of interference
3) character of govt action

Question 16

Land Permits and Takings

Answer 16

Conditions placed on the approval of permits DO NOT constitute an uncompensated taking if

1) there is an essential nexus between the state interest and permit condition AND

2) the govt makes an individualized determination and the condition is roughly proportional

Question 17

Strict Scrutiny under the Fourteenth Amendment and Fifth

Answer 17

Narrowly tailored to a compelling governmental interest (least restrictive means)

Applies to racial, national origin or alienage

Question 18

Intermediate Scrutiny

Answer 18

Gender and marital children classification

Government show that the classification is substantially related to an important government interest

Question 19

Rational basis

Answer 19

Applies to non suspect classes

Party bears burden of showing not rationally related to any legitimate interest (any conceivable interest is sufficient)

Question 20

Procedural Due Process

Answer 20

Guarantees no deprivation of life, liberty, or property without due process of law

Look at

1) importance of the interest

2) risk of error under current procedures and the value of additional procedures

3) importance of state interest and the burdensome the govt that would arise from the additional safeguards

Question 21

Fundamental Rights

Answer 21

vote
interestate travel
right to privacy
right to marry
right to procreate
use contraceptives
raise one’s children

Question 22

Test to deprive fundamental rights

Answer 22

Strict scrutiny

Question 23

Non-fundamental rights test

Answer 23

Rational basis

Question 25

Basic requirement for EPC/DPC issues

Answer 25

Government action

Can be a private party if

1) doing a traditional public function (powers traditionally and exclusively reserved to govt)

2) significant govt involvement exists to authorize, encourage, or facilitate private conduct that is unconstitutional

Question 26

Dormant Commerce Clause

Answer 26

1) No discrimination (economic protectionism) exception for state actor

2) discriminatory impact unless
a) narrowly tailored to achieve a legitimate, non-protectionist state objective and no less discriminatory alternatives

3) unduly burdensome regulations

unconstitutional when
1) burden on interstate commerce
2) clearly excessive to the putative benefits of the state/local govt

Question 27

Field Preemption

Answer 27

appears the law intself or its legilative history that the federal govt intended to exclusively occupy a given field

Question 28

5 Restrictions on conditioned federal funds

Answer 28

1) must be unamibious
2) related to federal interest
3) cannot induce unconstitutional
4) cannot be so coercive as to turn pressure into compulsion
5) spending for general welfare

Question 29

Commerce Clause Regulations

Answer 29

1) channels
2) instrumentalities
3) substantial effect on interstate commerce

When intrastate affected, it is subjected to rational basis