Con Law Quick Rules Flashcards
Contracts Clause
A state or local government may not substantially impair the obligations under a private contract, unless doing so serves an important government interest and is narrowly tailored to that interest.
Privileges and Immunities
Prohibits discrimination against out of state citizens on the basis of fundamental rights, which have been held for this purpose to include commercial activity and civil liberties, but may discriminate if there is a substantial justification for doing so.
Privileges or Immunities
A state may not deprive a citizen of the privileges or immunities of national citizenship; does not protect corporations, and essentially only protects the right to interstate travel.
Taxing Power
Congress’ taxing power is plenary, and they may tax any area where they could otherwise regulate, or for the purpose of raising revenue. Indirect taxes are permitted if they are geographically uniform.
State Taxing Power
A state can tax interstate commerce so long as it is non-discriminatory, if there is a substantial nexus between the taxpayer and the state, tax is fairly apportioned, and there is a fair relation between the tax and the services or benefits provided.
Spending Power
Congress has the power to spend for the general welfare.
Conditional Spending
Seen as an exception to the 10th Amendment; Congress may condition receipt of funds so long as the condition is clearly stated, it is related to the spending program, and it is not unduly coercive.
Substantive Due Process
If government action directly and substantially interferes with an individual’s exercise of their fundamental rights, it will only be upheld if necessary to achieve a compelling government interest. Non-fundamental rights are subject to rational basis.
Procedural Due Process
The government cannot intentionally deprive an individual of life, liberty, or property without due process of law. Due process is determined by balancing:
- The importance of the individual interest,
- The value of specific procedural safeguards, and
- Any countervailing government interest in fiscal and administrative safety.
Equal Protection Clause - Strict Scrutiny
Suspect classifications (race, national origin, alienage) are subject to strict scrutiny: they must be narrowly tailored to serve a compelling government interest.
Equal Protection Clause - Intermediate Scrutiny
Quasi-suspect classifications (gender, legitimacy) are subject to intermediate scrutiny: they must be substantially related to an important government interest. Intentional discrimination against women must have an “exceedingly persuasive justification.”
Equal Protection Clause - Rational Basis
All non-suspect classifications are subject to rational basis: they must be rationally related to a legitimate government interest.
Government Speech
Government speech and government funding of speech are permissible if rationally related to a legitimate government interest.
Regulations in a Public Forum or Designated Public Forum
Regulations must be content neutral and reasonable time/place/manner regulations: narrowly tailored to a significant government interest, and leave open ample alternative means of communication.
Regulations in a Limited Public Forum
Regulations must be viewpoint neutral, and reasonably related to a legitimate government interest.
Content Based Regulations
Content based regulations are presumptively unconstitutional, and are subject to strict scrutiny: they must be narrowly tailored to achieve a compelling government interest.
Content Neutral Regulations
Content neutral regulations are subject to a form of intermediate scrutiny, and must be narrowly tailored to serve an important government interest, while leaving open ample alternative means of communication.
Symbolic Speech
Symbolic speech may be regulated so long as:
- It is within the constitutional power of the government,
- It furthers an important government interest,
- The interest is unrelated to the suppression of speech, and
- The incidental burden on speech is no greater than necessary.
Prior Restraints
In order to constitute a valid prior restraint, the government must show that a special societal harm will result absent the prior restraint, and the existence of procedural safeguards that are:
- Narrowly drawn so as to include no more speech than necessary,
- Government promptly seeks an injunction, and
- Prompt determination of validity of the injunction
Freedom of Association
The First Amendment guarantees a right to associate to further political, social, and religious views; can only be infringed to serve a compelling government interest, unrelated to the suppression of ideas.
Limits on Campaign Contributions
Must be closely drawn to match a sufficiently important interest.
Free Exercise Clause
- Was there a religious belief involved?
- Was the belief sincerely held?
- Did the government interfere with the belief? If so, subject to strict scrutiny.
Establishment Clause
If the government establishes a preference for one religion over another, or religion over non-religion, it must satisfy strict scrutiny.
If no preference shown, then the Lemon test applies:
- Secular purpose?
- Neither advances nor inhibits religion?
- Does not promote excessive entanglement?
Dormant Commerce Clause
State regulations of commerce will be found to violate the DCC if they:
- Discriminate against out of state commerce, and are not necessary to achieve an important state interest, or
- Are non-discriminatory, but are unduly burdensome on interstate commerce.
Exceptions: market participant, and whether regulation furthers an important, non-economic state interest and there are no less discriminatory alternatives.
