Constitution Flashcards
CONSTITUTION - 2-Powers of Congress - A-Commerce - 1-Interstate Commerce
1. What falls under the commerce clause?
2. What are the limits of the commerce clause?
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1. ALL ACTIVITY AEFFECTING 2 OR MORE STATES
- the commerce clause allows congress to regulate any activity that substantially aeffects interstate commerce, which includes essentially all activity that aeffects 2 or more states
2. LIMITS: MANDATE COMMERCE OR INFRINGE ON OTHER RIGHTS
- congress cannot: (1) force engagement in commerce; (2) infringe on other constitutional rights
CONSTITUTION - 10-State Action - A-Traditional Governmental Function - 1-Traditional Governmental Function
1. What does the constitution protect against?
2. What is the one exception to the state action requirement?
3. What types of acts are state functions?
1. CONSTITUTION PROTECTS FROM GOVERNMENT NOT PRIVATE PARTIES
- constitution protects against wrongful government actions, not private parties
2. STATE ACTION EXCEPTION: 13TH AMENDMENT
- 13th Am protects against slavery, discrimination by private parties
3. STATE ACTIONS: TRADITIONALLY GOVERNMENTAL FUNCTIONS
- when a private person performs acts that are traditionally carried out by the government, it is a state action; or they are so intertwined…
CONSTITUTION - 14-Privileges & Immunities Clauses - A-Article IV - 1-Prohibits State Discrimination Against Nonresidents
1. What is the privileges and immunites clause?
1. CAN’T DISCRIMINATE AGAINST CITIZENS OF ANOTHER STATE
- prohibits one state from discriminating against the citizens of another state
CONSTITUTION - 14-Privileges & Immunities Clause - A-Article IV - 2-Rights Protected
1. What rights are protected under the privileges and immunities clause?
1. EMPLOYMENT, PROPERTY, COURTS, COMMERCIAL, NOT RECREATIONAL
- can’t discriminate as to fundamental rights or essential activities, eg, employment, property, courts, commercial activity; doesn’t apply to recreational activities, eg, hunting
CONSTITUTION - 14-Privileges & Immunities Clauses - A-Article IV - 3-Exception – Substantial Justification
1. What must the state show to have an exception the the privileges and immunities clause?
👨⚕️🌹 DRS ROSe
1. SUBSTANTIAL REASON & RELATIONSHIP
a state can discriminate
if there is a substantial reason
that has a substantial relationship
with a state’s objective
Equal Protection
Equal Protection
The Equal Protection Clause in the 14th Amendment prohibits states from depriving any person of life, liberty, or property without due process and equal protection of the law.
1. Violate a Fundamental Right
• privacy, travel, …
» » » » » Strict Scrutiny « « « « «
2. Discriminate Against a Suspect Class
• race, nationality, alienage
» » » » » Strict Scrutiny « « « « «
• gender, nonmarital
» » » » » Intermediate Scrutiny « « « « «
3. All Other Rights & Classes
» » » » » Rational Basis « « « « «
4. Apply the Test
» » » » » Strict Scrutiny « « « « «
- necessary to achieve a compelling government interest
- there are no less restrictive or burdensome means of achieving its goal
» » » » » Intermediate Scrutiny « « « « «
- substantially related to an important government interest
» » » » » Rational Basis « « « « «
- rationally related to a legitimate government interest
The 14th Amendment prohibits states from depriving any person of life, liberty, or property without due process and equal protection of the law. The Equal Protection Clause provides that “no state shall make or enforce any law which shall deny to any person within its jurisdiction equal protection of the laws.” This imposes a general restraint on the governmental use of classifications, such as race, sex, alienage, and sexual orientation. It is an equal protection case when certain rights are being denied to some individuals, but not others.
The US Supreme Court employs one of three tests in reviewing laws under equal protection and due process, depending on the circumstances.
Strict Scrutiny
Strict scrutiny is used when a suspect classification or fundamental right is involved. Under strict scrutiny, a law will be upheld only if it is necessary to achieve a compelling government interest. The government must show there are no less restrictive or burdensome means of achieving its goal. Courts look at the actual reason the law was enacted. The government bears the burden of proof under strict scrutiny review. If a suspect classification or fundamental right is involved, the strict scrutiny standard will be applied and the action will be struck down unless the government proves it is necessary to achieve a compelling interest. Suspect classifications include race, national origin, and alienage.
Intermediate Scrutiny
Intermediate scrutiny is used when a quasi-suspect classification based on gender or legitimacy is involved. Under intermediate scrutiny, a law will only be upheld here if it is substantially related to an important government interest. The government’s goal must be important and courts will look at the actual reason the law was enacted. The &government bears the burden of proof_ under intermediate scrutiny. If a quasi-suspect classification is involved, the intermediate scrutiny standard will be applied. Quasi-suspect classifications include gender and nonmarital children.
For gender discrimination, P must show a discriminatory purpose behind the regulation, not merely a discriminatory effect, in order to trigger a heightened judicial review, . When a state law does intentionally discriminate on the basis of sex, it must satisfy intermediate scrutiny, which requires the government to prove that the action is substantially related to an important government interest.
Rational Basis
Rational basis scrutiny is used when the other two standards of review are not applicable. Under the rational basis standard, a law will be upheld if it is rationally related to a legitimate government interest. It is difficult to fail this test, so most governmental action under this standard is upheld unless it is arbitrary or irrational. Any conceivable legitimate purpose suffices, regardless of the actual purpose of the law. The challenger bears the burden of proof under rational basis review. Rational basis review invol@ves alienage and all other classifications.
Intent to Discriminate
The mere fact that legislation or governmental action has a discriminatory effect is not sufficient to trigger strict or intermediate scrutiny. There must be intent to discriminate on the part of the government. Intent can be shown by: (i) facial discrimination; (ii) discriminatory application; or (iii) discriminatory motive.
Facial discrimination is a law that is discriminatory on its face and language. This type of law makes an explicit distinction between classes of persons.
Discriminatory application means that although a law may appear to be neutral on its face, it will be applied in a different manner to different classes of persons.
Discriminatory purpose exists when action appears neutral on its face and in its application, but will have a disproportionate impact on a particular class of persons.
Examples
The school dress code does not trigger any sort of higher level of scrutiny because it does not attempt to regulate any suspect or quasi-suspect classifications. It does not specifically target women; it requires that all students wear shorts that reach their knees. Because it does not make any specific classifications, it will be reviewed under the rational basis standard and will be upheld unless it bears no rational relationship to any legitimate government interest.
Taking of Private Property
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Taking of Private Property
The 5th Amendment prohibits
- governmental taking
- of private property
- for public use
- without just compensation.
Application
- Applicable to states by incorporation through the 14th Amendment.
- Both state and federal governments have the right to take private property for public use so long as just compensation is paid.
Scope
- Any permanent physical occupation of private property by the government is a taking for which just compensation to the property owner is required.
- Encompasses not only physical appropriations of property, but also any governmental action that significantly damages property or impairs its use.
- Use restrictions will also constitute a taking if there is a denial of all economic value of land because such a regulation is equivalent to a physical appropriation.
- A government regulation that eliminates the investment-backed expectation and economic value of an individual’s property is a taking.
- If the regulation merely decreases the value of the property (eg, prohibits its most beneficial use), it will not necessarily result in a taking as long as an economically viable use for the property remains.
- When a state merely regulates property use in a manner consistent with the state’s designated powers, no compensation needs to be paid, even if the owner’s use of his property, or its value, has been substantially diminished.
- Often, regulations that result in unconstitutional takings occur in cases involving land-use, especially when there has been a denial of all economically viable use of the land.
The Court considers:
1. the social goals sought to be promoted;
2. the diminution in value to the owner; and
3. whether the regulation substantially interferes with distinct, investment-backed expectations of the owner.
Separation of Powers – Congress’s Power Over Supreme Court Appellate Jurisdiction
Separation of Powers – Congress’s Power Over Supreme Court Appellate Jurisdiction
In all cases arising under FED law, SC shall have appellate JX, as to law and fact, with such exceptions and regulations as CG shall make. Å3§2
- CG has general power to decide what types of cases SC may hear, but can’t expand JX beyond CT
- CG has full power to regulate and limit the SC’s appellate JX, but not unlimited
- Guidelines have been suggested:
- CG may eliminate SC review of specific areas, but can’t eliminate all areas
- CG may eliminate SC review of certain cases, but must permit JX in some lower FED court
- if CG denied all SC review of a CT right violation, or hearing before a FED judge, it would violate DP
Habeas Corpus
- A habeas corpus petition is a collateral civil challenge to a criminal conviction
- Writs of habeas corpus may be granted by SC, district courts, and circuit judges within their JX. 28USC§2241
Eg: A statute that creates an exception to SC’s appellate JX, limiting its ability to review final judgments in criminal matters by state supreme courts, falls within CG’s power to remove specific areas of relief without eliminating all areas.
Congress’s Condition of Grants
Congress’s Condition of Grants
CG can condition
the grant of FED funds to public bodies
on compliance with
measures related to the public welfare
as long as the public body
is free to accept or reject the grants.
Congress’s Taxing & Spending Power
Congress’s Taxing & Spending Power
- CNST: CG may collect taxes to pay debts & provide for gen welfare
- CG may tax & spend for gen welfare – but may not regulate for gen welfare
- CG’s power to tax and spend are very broad
- JUD defer to CG taxing & spending that reasonably further gen welfare
- What is spent & what is taxed need not be related
Taxing
- CG may collect taxes
- Taxes must be geographically uniform throughout US
Spending
- CG’s spending power is plenary
- CG can choose how it spends if reasonably serves gen welfare & doesn’t violate CNST
★ MBE Tip: Absent a specific restriction, be very hesitant to rule against a tax measure on the MBE. A tax measure will be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity.
Necessary and Proper Clause
Necessary and Proper Clause
Article I, Section 8, grants Congress auxiliary power under the Necessary and Proper Clause, which gives Congress the power to make all laws necessary and proper (ie, appropriate) for carrying into execution any power granted to any branch of the federal government. So long as the means is rationally related to a constitutionally-specified object, the means is also constitutional.
1st Amendment & Public Employees
A public employee
- has a First Amendment right to speak on a matter of public concern
- may not be discharged for that speech
- unless the employee’s actions interfere with the functions of the government.
Govt often requires persons who accept government jobs to
- submit to loyalty oaths
- refrain from certain conduct, eg, campaigning.
Such regulations may impact the freedom of speech and association, however.
Loyalty oaths will not be upheld if they are
- overbroad, including prohibiting constitutionally-protected activities
- so vague that they have a chilling effect on 1st Amendment activities.
Speech that is
- not made pursuant to an employee’s official duties
- which is a matter of public concern
- such as regarding policies of elected officials
- requires courts to balance
- the employee’s rights as a citizen to comment
- against the govt’s interest as an employer in the efficient performance of public service.
SC has held that the govt may not fire an employee because of the employee’s political views or affiliations
- unless certain political views or affiliations are required for the effective performance of the employee’s job.
State Compliance with Federal Law
A state is treated as a person for purposes of federal law and must comply with validly enacted federal laws.
Eg: This law is validly enacted because tires, which are bought and sold, are part of the stream of commerce.
State Tax on Federal Government
State Tax on Federal Government
A state tax levied directly against the FED govt without the consent of CG is invalid.
Indirect and non-discriminatory state taxes on the FED govt or its property are permissible unless they unreasonably burden the FED govt.
A tax on the federal government or its property is permissible if:
- it is not a tax directly imposing a burden on the federal government; and
- it does not discriminate against the government or its employees
For example, state income taxes on the salaries of federal employees are valid unless taxes imposed are higher on federal employees than on state or local employees.
Eg: The state may collect taxes on the personal use of automobiles given to federal employees by the federal government because it does not affect federal employees’ use of the automobiles for work purposes, only personal use, which means it does not impact government operations. The tax on personal use is essentially like an income tax on wages or benefits, which is permissible if it is non-discriminatory.
Dormant Commerce Clause
Dormant Commerce Clause
Commerce Clause
The Commerce Clause grants Congress the power to regulate commerce among the states, and that power also creates a limitation on each state’s ability to pass laws that affect interstate commerce. That limit is called the Dormant Commerce Clause.
Dormant Commerce Clause
Under the Dormant Commerce Clause, states cannot pass regulations of local aspects of interstate commerce unless they do not discriminate against out-of-staters to benefit local economic interests and are not unduly burdensome.
When a state regulation does not discriminate, but merely burdens interstate commerce, it may be upheld based on a case-by-case balancing of the legitimate state interest versus the burden on interstate commerce.
- eg, state law controlling weight and width of trucks on its highways was not UNCNST under DCC
When a non-discriminatory state regulation affects interstate commerce (and is not otherwise authorized by a federal law), it must satisfy each of these three elements to avoid violating the Dormant Commerce Clause:
- the regulation must pursue a legitimate state end
- the regulation must be rationally related to that legitimate state end
- the regulatory burden imposed by the state on interstate commerce must be outweighed by the state’s interest in enforcing its regulation
Courts especially frown on intentional discrimination against out-of-staters. A discriminatory state or local law may be valid, however, if it: (i) furthers an important, non-economic state interest (e.g., health or safety); and (ii) there are no reasonable alternatives available.
The power of state governments is sometimes called “inherent” because a state government, as far as the U.S. Constitution is concerned, holds a general “police power,” i.e., the power to protect the health, safety, or general welfare of state residents. An action by a state government is valid under federal law unless it violates any specific limitation imposed by the U.S. Constitution.
The Supreme Court has held that a state may affect interstate commerce if it is an incidental consequence of its exercise of “police powers.”
C is correct. The state’s poultry fee does not discriminate against out-of-state commerce because it applies only to in-state farming and processing operations, which means the court will first determine whether it burdens interstate commerce at all. The facts do not indicate such a burden because the poultry fee applies only to intrastate commerce and does not regulate activities that occur outside its borders. Even if the fee did burden interstate commerce, however, the court would apply a balancing test measuring the legitimate state interest versus the burden on interstate commerce. There is no indication that the fee would fail that balancing test because the burden, if any, does not outweigh the significant state interests of protecting its citizens (and their food supply) from a potentially fatal cross-species virus. Thus, the fee is permissible under the Dormant Commerce Clause.
C is correct. The statute requires in-state insurance companies to charge a uniform rate for burglary insurance for county residents in that state, which may be dictated by the market value. There is no basis for concluding that the state statute is unconstitutional under the federal Constitution. For example, it does not discriminate against out-of-state entities or unduly burden interstate commerce, it does not conflict with specified federal legislation or otherwise trigger preemption, and it is not taking property without due process.
Commerce Clause
Commerce Clause
The Commerce Clause empowers Congress to regulate economic or commercial activity that, in the aggregate, has a substantial effect on interstate commerce.
The Commerce Clause grants Congress the power to regulate commerce among the states, including: (i) channels of interstate commerce; (ii) instrumentalities of interstate commerce and persons and things in interstate commerce; (iii) articles moving in interstate commerce; or (iv) activities that have a substantial effect on interstate commerce.
Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Commerce is defined as “every species of commercial intercourse . . . which concerns more states than one” and including virtually every form of activity involving or affecting two or more states. Gibbons v. Ogden, 22 U.S. 1 (1824). To be within Congress’s power under the Commerce Clause, a federal law must regulate under one of four categories: (i) channels of interstate commerce; (ii) instrumentalities of interstate commerce and persons and things in interstate commerce; (iii) articles moving in interstate commerce; or (iv) activities that have a substantial effect on interstate commerce. Regarding activities that have a substantial effect on interstate commerce, when those activities are intrastate, the Court will uphold the regulation if it is of economic or commercial activity and if it can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. Gonzales v. Raich, 545 U.S. 1 (2005).
The sale of controlled substances is a commercial activity.
The most credible basis for congressional authority to enact a statute prohibiting discrimination in the sale or rental of housing on the basis of sexual orientation, both public and private, is the Commerce Clause. The congressional commerce power is plenary and includes even purely intrastate activities, both public and private, that have an aggregate substantial effect on interstate commerce. The sale and rental of nearly all housing nationwide would likely be found to have a substantial effect on interstate commerce in the aggregate.
Mandating State Laws
Mandating State Laws
Congress may not force state or local governments to create or enforce laws.
In other words, the federal government may not force or coerce state legislatures into passing specific statutes.
The Supreme Court held that the concept of federalism embedded in the Tenth Amendment prevents Congress from requiring states to enact laws or to administer federal law.
Congress may encourage state legislatures to pass certain laws by, for example, conditioning receipt of federal funding on passing laws, via Congress’s spending power under Article I, Section 8.
But even then, if a spending act imposes limitations on a state, or attaches “strings,” the limitations must be: (i) merely an incentive and not a compulsion; (ii) clearly stated; and (iii) related to the act’s purpose (also phrased as having a “nexus” between the purpose and the limitations).
Although Congress has the power to appropriate money to serve the general welfare of the United States, there is no provision of the Constitution that gives Congress power generally to regulate for the general welfare.
Supremacy Clause
The Supremacy Clause invalidates any state action that is contrary to validly-enacted federal law. This Clause ensures that the U.S. Constitution, and federal laws made pursuant to it, remain the supreme law of the land.
13th Amendment – Racial Discrimination
The Thirteenth Amendment provides that neither slavery nor involuntary servitude shall exist in the United States. It was passed to eradicate slavery of Black people and may be invoked to combat the badges incident to slavery that exists still today. Congress has the power to enforce the Thirteenth Amendment by appropriate legislation, which is not explicitly limited to governmental action. This means that this Amendment can be a useful source of congressional power to reach certain private conduct. Under Jones v. Mayer, 392 U.S. 409 (1968), Congress can pass “all laws necessary and proper for abolishing all badges and incidents of slavery in the United States” (quoting other civil rights cases). The discrimination that is banned, however, must be on grounds of race, ancestry, or ethnic background.
Privileges OR Immunities Clause
Privileges or Immunities Clause
The Privileges or Immunities Clause of the 14th Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship.
The primary example is the right to travel between the states, though others include the right to vote in national elections and to petition Congress concerning grievances.
Ex Post Facto Laws
Ex Post Facto Laws
Article I, Section 10 of the Constitution prohibits states from passing ex post facto laws.
An ex post facto law is legislation that retroactively alters the criminal law (not civil regulation) in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.
Procedural Due Process
Procedural process requires a legitimate claim or “entitlement” to a benefit under state or federal law. Board of Regents v. Roth, 408 U.S. 564 (1972). Examples of protected property interests include: (i) public education when school attendance is required, meaning that a significant suspension (e.g., 10 days) requires procedural due process, Goss v. Lopez, 419 U.S. 565 (1975); (ii) welfare benefits if one has previously been determined to meet the statutory criteria, Goldberg v. Kelly, 397 U.S. 254 (1970); and (iii) continued public employment when there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for “cause,” then there is a property interest, Arnett v. Kennedy, 416 U.S. 134 (1974), but if the employee holds his position only at the “will” of the employer, there is no property interest in continued employment. Bishop v. Wood, 426 U.S. 341 (1976).
The Due Process Clause protects not only “substantive” rights, but it also requires that the state act with adequate or fair procedures when it deprives a person of life, liberty or property. For a proper procedural due process claim, the government must first take a person’s life, liberty or property. There is no general interest in having the government behave with fair procedures.
Most procedural due process problems involve the issue of whether the thing being taken constitutes “property.” Property includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for (or a unilateral expectation of) the benefit is not enough. There must be a legitimate claim or “entitlement” to the benefit under state or federal law. Board of Regents v. Roth, 408 U.S. 564 (1972). An example of a property interest includes continued public employment when there is a state statute or ordinance that creates a public employment contract, or there is some clear practice or mutual understanding that an employee can be terminated only for “cause,” then there is a property interest, Arnett v. Kennedy, 416 U.S. 134 (1974), but if the employee holds his position only at the “will” of the employer, there is no property interest in continued employment. Bishop v. Wood, 426 U.S. 341 (1976).
C is correct. When challenging the deprivation of a constitutionally-protected right without due process of law, a plaintiff first must demonstrate that she has a constitutionally-protected right. Here, the secretary must first demonstrate that state law created a constitutionally-protected interest either in her job or in the procedures for termination. Only this preliminary showing will trigger the procedural due process protections afforded to property interests in public employment.
Independent and Adequate State Ground
Practice Questions
03:28
Question #591
Constitutional Law / Judicial Review
You answered A. The correct answer is B.
Brief Explanation
B is correct. The U.S. Supreme Court may exercise jurisdiction over the state supreme court’s interpretation of the federal Constitution because it raises an important federal question. When a state court interprets the state constitution and the Constitution co-extensively, as it did here, the Court may find that independent and adequate state grounds did not exist, which allows the Court to review it as to the federal issues. The state court maintains the right to interpret the law under its own constitution. Therefore, the Court should reverse as to the federal question and remand to allow for further adjudication by the state court.
A is incorrect. The state maintains the authority to interpret the statute under its own constitution, and is not required to construe the statute in a manner congruent with the U.S. Constitution. The Court’s review of the state court judgment is limited to questions of federal law.
C is incorrect. The state court found that the statute was unconstitutional based on a co-extensive interpretation of the state and U.S. constitutional provisions, and therefore, there were no independent and adequate state law grounds. Given that the Court found the federal constitutional application to be incorrect, it may properly adjudicate the federal question. However, it must then remand the case for the state court to review the statute’s legality under the state constitution.
D is incorrect. The state government, like any other party, may seek review of a decision in the Court if it has jurisdiction.
Extended Explanation
The U.S. Supreme Court has complete discretion to hear cases that come to it by writ of certiorari. The cases that may be heard by certiorari include: (i) cases from the highest state courts where the constitutionality of a federal statute, federal treaty, or state statute is called into question or a state statute allegedly violates federal law, 28 U.S.C. § 1257; and (ii) all cases from federal courts of appeals. 28 U.S.C. § 1254.
The Court may determine whether a state court has reached a decision that is not in conformity with the U.S. Constitution, but it may not review state court decisions that merely adjudicate questions of state law; the Court’s review of state court judgments is limited to questions of federal law.
Even if there is a federal question in the state court case, the Court may not review it if there is an “independent and adequate” state ground for the state court’s decision. That is, if the same result would be reached even had the state court made a different decision on the federal question, the Court may not decide the case. This is because its opinion would in effect be an “advisory” one.
The state court may hold that a state statute violates both the state and federal constitutions. Such a holding may be achieved in one of two ways: (i) the state court may have independently interpreted the state constitutional provision, without relying directly on federal cases construing the federal constitutional provision; or (ii) the state court may have interpreted the state constitutional provision as being co-extensive with the comparable federal constitutional provision, and then attempted to follow the relevant federal case law. In that context, the Court may find that an independent and adequate state ground did not exist, allowing the Court to review it. However, the mere fact that a federal question is involved in a case is not sufficient to entitle the Court to review it. And, even if the Court is entitled to review a case, it will generally adjudicate only the federal issues.
Unprotected Speech
When an individual makes a threat intended to intimidate the recipient, such speech is not protected free speech under the First Amendment. Because this type of threat is not constitutionally protected, states may outlaw them regardless of whether the speaker acts on the threat.
It is irrelevant whether the speaker commenced any overt action against the threatened person because the threat alone may be outlawed as unprotected speech.
