Constitution Flashcards
Amendments
1 - freedom of religion, press and expression
2 - right to bear arms
5. right to a grand jury (doesn’t apply to states)
6. right to a speedy trial, confrontation clause
7. right to a trial by jury in civil cases (doesn’t apply to states)
8. cruel and unusual punishment
10. power of states and people
14. citizenship rights
15. race cannot be a bar to voting
Standing
In order for a court to hear a case, a plaintiff must have standing. To establish standing, a plaintiff needs to show injury, causation and redressability.
Injury - must be an actual or imminent personal injury
Causation - harm must be fairly traceable to D’s actions
Redressability - P must show that a favorable decision would eliminate the harm or remedy the injury
Executive Powers & Youngstowne Test
The president’s authority to act must stem either from an act of Congress or from the Constitution itself. Article II of the Constitution vests without reservation or qualification, executive power in the office of the president. The President has certain inherent powers beyond those expressly stated in the constitution. Article I delegates to Congress the power to legislate.
Under the Youngstown framework, when the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, and his actions are likely valid. Where the president acts where Congress is otherwise silent, his action will be upheld as long as it does not take over the power of another branch of government or prevent it from carrying out its tasks. Where the President acts against the express will of Congress, his actions are likely invalid
Privileges and Immunities Clause of Article IV
States may not discriminate against out of state CITIZENS with respect to fundamental rights ( including employment) unless there is SUBSTANTIAL JUSTIFICATION and there is NO LESS RESTRICTIVE MEANS to solve the problem.
Dormant Commerce Clause *
Article I of the Constitution provides Congress with the power to regulate interstate commerce. Where congress is silent, a state under its police powers may regulate local aspects of interstate commerce, however per the Dormant Commerce Clause, state laws cannot discriminate against interstate commerce.
When a state statute expressly discriminates against interstate commerce for the purpose of favoring in state commerce, the statute is generally struck down.
When the law discriminates against IC but is passed to promote the health, safety, welfare, of state citizens, the state must satisfy strict scrutiny (necessary to serve a compelling state interest & no reasonable non-discriminatory alternative).
If a law is non-discriminatory but still has an indirect effect on interstate commerce, the statute will be upheld if it serves an important state interest, and does not impose an unreasonable burden on interstate commerce. A balancing test is used that weighs effects of law on interstate commerce against state’s interest served by the law
2A Right to bear arms
Under 2A, there is a right of people to keep and bear arms. In heller the court conferred individual right to keep and bear arms unconnected w/ militia service and to use for purposes such as self defense in the home.
Michigan constitution plainly confers individual right to keep and bear arms for self-defense, but legislature can regulate the carrying and use of fire arms.
8A Prohibition against cruel and unusual punishment
Unconstitutional under 8A’s prohibition against cruel and unusual punishment, made binding to states under 14A:
1) if a state gives life w/o parole for a non-homicide crime committed when D was a minor
2) if death penalty is given to someone who committed a crime as a minor
3) if a state law mandates life w/o parole to anyone who commits murder (as mitigating circumstances such as age are not considered)
Procedural due process - law void for vagueness
A constitutional challenge of an ordinance or an enactment based on vagueness is “brought under the Due Process Clause of the 14th Amendment of the United States Constitution.
Vague if:
1) does not provide fair notice of the prohibited conduct
2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed OR
3) its coverage is overbroad and impinges on 1A freedoms.
Procedural DP
due process guaranteed by 5A, and applies to states through 14A. Refers to the constitutional requirement that when the government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard.
Employment is a property interest, with the exception of at will employment, so person must be given pre-termination hearing.
Equal Protection
Under the 14th Amendment, no state shall deny to any person…the equal protection of the law.
race/ethnicity/alienage (ONLY IF STATE GOV). & fundamental rights ( right to vote, interstate travel, 1A rights, right to refuse medical treatment, marriage/divorce, contraception, sexual conduct, obscenity in home, family relations, abortion) subject to strict scrutiny. Gov. must show that the classification was narrowly tailored to achieve a compelling government interest
gender/ illegitimacy/mental capacity: intermediate scrutiny test. Gov. must show that the classification is substantially related to an important gove. interest
everything else INCLUDING DISCRIMINATION BY FEDS ON BASIS OF ALIENAGE: rational basis test. The plaintiff must show that the government provision is not rationally related to a legitimate government interest, in order for the provision to be struck down.
Right to fair trial
The right to a fair trial is a fundamental liberty secured by the 14th Amendment to the United States Constitution. An integral component in that fair trial is that the accused is presumed to be innocent. Right to a fair trial also triggers equal protection clause
Free Speech [most heavily tested, & tested in Feb 2021]
The first amendment states that Congress shall make no law abridging the freedom of speech. The first amendment is applicable to the states through the 14th amendment.
Content based discrim - strict scrutiny
- symbolic speech: regulates conduct but incidental burden on speech must be N to I and unrelated to suppression of speech
- unprotected speech = rational basis (speech inciting immediate lawlessness, fighting words, true threats, obscene speech)
Viewpoint based - strict scrutiny
Content - neutral = intermediate scrutiny
Sexual or Indecent speech: Reg. must serve s. gov. int. & leave open reasonable alternative channels of communication
Commercial Speech [Feb 2021]
The first amendment states that Congress shall make no law abridging the freedom of speech. The first amendment is applicable to the states through the 14th amendment.
Speech that proposes a commercial transaction is deemed commercial speech.” Regulations on commercial speech are constitutional if it meets the 4 part Central Hudson test. Commercial speech is protected under an intermediate scrutiny analysis. The speech must be lawful and not misleading; the regulation must serve a substantial government interest; the statute must directly advance that interest; and the statute must be narrowly tailored. Misleading or false speech is not protected. The state has the burden of establishing the validity of its commercial speech regulation.
School Speech - Feb 2017
The first amendment states that Congress shall make no law abridging the freedom of speech. The first amendment is made applicable to the states under the 14th amendment. For a free speech violation to occur, there must be government regulation of private speech.
Students have free speech rights, but school speech can be regulated if: it is viewpoint neutral, and the regulation must be rationally related to a legitimate educational concern. This applies during school hours and school functions.
Time, Place, Manner - Feb 2016
A government can place a reasonable regulation on the time, place or manner of speech.
Public forum: statute must be content neutral, narrowly tailored to imp. gov. interest, and leave open alternative channels of communication
