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The Bar Exam > Constitutional Law > Flashcards

Constitutional Law Flashcards

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1
Q

What is a public forum?

A

Public property that historically has been open to speech-related activity. Examples include streets, sidewalks, public parks, and the internet

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2
Q

What is a designated public forum?

A

Public property that usually is not used for speech-related activity, but that the government has opened for such activity at particular times (e.g., a public school gym that can be reserved by the public for use when not being used by the school).

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3
Q

What is a limited public forum?

A

Public property that usually is not used for speech-related activity, but that the government has opened up for such activity for a particular purpose (e.g., a school gym that has been opened up to host a political debate).

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4
Q

What is a nonpublic forum?

A

Public property not open for speech-related activity. A county office building would be an example of a nonpublic forum except to the extent that it is specifically opened to the public for speech-related activities.

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5
Q

How does a governmental regulation of CONDUCT (time, place, manner restriction) associated with speech in a PUBLIC OR DESIGNATED PUBLIC forum avoid strict scrutiny and be upheld?

A

To avoid strict scrutiny and be upheld, a regulation must be content neutral and narrowly tailored to serve an important government interest, and it must leave open alternative methods of communication. Keep in mind, however, that even if these requirements are met, the regulation may be invalidated for other reasons, such as for being vague or overbroad

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6
Q

To be valid, a time, place, and manner regulation of a limited public forum or nonpublic forum must be

A

viewpoint neutral and rationally related to a legitimate government purpose.

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7
Q

What is the test for content regulation any forum?

A

Strict scrutiny

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8
Q

Curriculum-based public high school activities are

A

not public forums

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9
Q

The First Amendment Free Exercise Clause

A

prohibits government from punishing conduct just because it is religious but does not prohibit regulation of general conduct

For example, a law may not prohibit ritual slaughter of chickens while otherwise allowing the slaughter of chickens.

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10
Q

What is the test for the validity of government action under the Establishment Clause when no sect preference is involved?

A

The three-part Lemon test, applied in cases in which there is no preference for one religious group over another, is that:

  1. The action has a secular purpose,
  2. The action has a primary effect that neither advances nor inhibits religion, and
  3. The action does not produce excessive government entanglement with religion.
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11
Q

The Establishment Clause- of the 1st and 14th amendments

A

prohibits the government from taking action respecting the establishment of religion/ promoting religion

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12
Q

If government action is challenged under the Due Process or Equal Protection Clause, and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless

A

it is arbitrary or irrational. A rational basis standard applies.

The law is valid if it is rationally related to a legitimate government purpose.

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13
Q

Held to be Fundamental Rights

A

The right to interstate travel, the right to privacy (includes right to contraceptives), the right to vote, and the right of free speech and assembly

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14
Q

International Travel

A

is NOT a fundamental right

it is protected from arbitrary federal interference by the 5th amendment due process clause, rational basis applies

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15
Q

Strict Scrutiny test

A

necessary to achieve a compelling government interest

government usually loses

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16
Q

What is the test for abortion regulations?

A

the government may not impose an undue burden on a woman’s ability to obtain an abortion before viability

however, states are not required to pay for abortions or provide them at state public facilities

they may prohibit them at public facilities and may prohibit public staff from performing them

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17
Q

What is the rule for regulating abortion after viability?

A

After viability, the government may prohibit abortion unless the woman’s health is threatened

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18
Q

One person, one vote—Rule for congressional districts

A

almost exact mathematical equality between the congressional districts within a state is required

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19
Q

One person, one vote—Rule for state government districts

A

In state government districts, the variance from district to district may not be unjustifiably large. But this is a much more lenient standard than the almost exact mathematical equality standard.

a variance of even 16% has been found to be valid.

state must show that a deviation from mathematical equality is reasonable and tailored to promote a legitimate state interest

inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes)

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20
Q

Abstention

A

A federal court waits to interpret a state court statute until the state court has done so because the statute is unclear and the constitutionality depends on the meaning.

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21
Q

Challenging a proposed law is?

A

Dismissed for want of case or controversy since it is merely proposed

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22
Q

Third-party standing

A

A plaintiff can assert a claim not only on behalf of their self but on the behalf of tours as well. This requires three things:

  1. P has standing (injury, causation and redressibility)
  2. The non-plaintiff third parties have standing but are unable to sue or unlikely to sue for some reason
  3. The P can adequately represent the interests of the 3rd parties
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23
Q

Test for Congressional Delegation of Legislative Power

A

When Congress gives regulatory power to the executive branch, typically to the administrative agency but sometimes directly to the President, then the test is whether the delegation includes some “intelligible principle” that guides and limits the exercise of the delegated power.

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24
Q

Test for Congress tax and spend power

A

Test= whether the discretionary spending power can be said to be rationally and reasonably (arguably) related to promoting the general welfare even if it may seem silly or wasteful to some.

Very broad power. No requirement that what is spent be related in any way to what is taxed.

Low hurdle- limited only by the other provisions of the Constitution

Basically rational basis test

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25
Q

Congress attaches conditions when giving money to states/ state agencies

A

Ok as long as the spending conditions (1) are clearly stated, (2) are reasonably related to the purpose of the spending and (3) are not unduly coercive (look for facts that suggest they have no real choice on whether to take the funds) and do not violate any other provisions of the constitution

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26
Q

Congress Police Powers

A

Congress has no general police power. They only have the police power to regulate federal lands including D.C.

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27
Q

Supremacy clause

A

Federal law is supreme over state and local laws

A state or locality may not regulate any part of the federal government or their activities

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28
Q

Contract clause applies to what types of law

A

State and local law only

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29
Q

Protected property rights

A

Rights to real and personal property and government jobs and benefits for which there is a reasonable expectation for continued receipt

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30
Q

Contract clause- private parties

A

State and local law may not substantially impair the existing contract rights between private parties unless
1. there is an important government interest and 2. the law is reasonably related to promoting that interest

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31
Q

Contract clause- government is a party

A

Heightened scrutiny - unclear how much higher than the standard for contracts between private parties- just a closer and more skeptical look

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32
Q

Sovereign immunity

A

Cannot sue the state but can still sue state actors to enforce your rights

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33
Q

Anti-commandeering principle

A

Federal government cannot commandeer state officials to administer federal laws or federal programs

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34
Q

Dormant commerce clause

A

In the absence of federal regulations on the subject, states cannot pass regulations on local aspects of interstate commerce if the regulation (1) does not discriminate against out-of-state competition to benefit local economic interests and (2) is not unduly burdensome.

State cannot adopt protectionist law that favors in-state commerce over out of state commerce unless the state is acting as a market participant or the state is acting to protect an important state interest not related to protectionism

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35
Q

What is the test for regulating fundamental rights?

A

Strict scrutiny- burden is on state to show that the law has a compelling interest and the law is narrowly tailored

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36
Q

Narrowly tailored

A

does not have to be the least restrictive means, just means that there must be a reasonable fit between the goal and the means chosen

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37
Q

Constitutions speech and debate clause

A

Federal representatives and senators enjoy immunity for any speech or debate made in the House or the Senate chambers

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38
Q

Public officials - defamation

A

must show the statement was made with actual malice- knowledge of falsehood or reckless disregard of the truth

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39
Q

Quasi-suspect classes

A

Gender (exceedingly persuasive justification for the discrimination)

Children not born inside marriage

Use intermediate scrutiny

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40
Q

Intermediate scrutiny test

A

Burden on state to show the law is substantially related to an important government objective/ interest

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41
Q

State and local govt rule for alienage

A

Strict scrutiny

Exception: state and local governments may reasonably require citizenship for positions and activities that are integral to maintaining democratic self governance which has thus far been held to include state troopers, public school teachers, jurors, and deputy probation officer.s

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42
Q

Federal government rule for alienage

A

rational basis review

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43
Q

Privileges or Immunities Clause of the 14th A

A

Limited - only applies to state and local governments and only protects individuals NOT corporations
Protects out of state citizens fundamental rights and right to earn a living
Protects interstate travel
Ports and waterways

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44
Q

A business license is a

A

Due Process Clause protected property interest and cannot be revoked without due process of law (Fair hearing)

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45
Q

Rational basis test

A

test used for discrimination based on non-suspect classes… government usually always wins because they can come up with some rational basis for their regulation

includes age, disability, and wealth classifications

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46
Q

Prior restraint

A

Highly disfavored by 1A
Preventing speech before it occurs such as by an injunction barring publication

government must show some special societal harm will result if the prior restraint is not granted

also

1) the standards must be narrowly drawn, reasonable, and definite
2) injunction must be promptly sought
3) there must be prompt and final determination of the validity of the restraint

government must prove the speech is not protected

ex of valid: prohibiting publishing of troop movements in times of war, enforcing contractural prepublication review of CIA agent’s writings

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47
Q

Prior restraint criminal

A

Only justified in rarest of cases - when no other way to preserve a fair trial

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48
Q

Content based laws

A

laws that suppress speech based on the message or the harms caused by the message

strict scrutiny

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49
Q

Content neutral laws

A

restrict speech on some basis other than the message or the idea

intermediate scrutiny

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50
Q

Commerce Clause

A

grants Congress the power to regulate commerce among the states, including (1) channels of interstate commerce, (2) instrumentalities of interstate commerce and persons and things in interstate commerce, (3) articles moving in interstate commerce, or (4) activities that have a substantial effect on interstate commerce.

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51
Q

Takings clause

A

prohibits the government from taking an individual’s property without paying just compensation.

when a state merely regulates property use in a manner consistent with the state’s designated powers, not compensation needs to be paid even if the owner’s use of his property or its value has been substantially diminished

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52
Q

what constitutes an undue burden on abortion

A

if the statute has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus

does not pose undue burden simply because it makes it more difficult or more expensive to obtain one

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53
Q

what statutes to regulate abortion can a court adopt

A

those that are designed to persuade a woman to choose childbirth over abortion as long as the statute is reasonably related to that purpose

54
Q

state actions that restrict political speech or political activity

A

strict scrutiny- rarely pass

55
Q

the federal property clause of article IV, section 3

A

congress has plenary power to control the territory and property of the United States

56
Q

15th amendment voting

A

race cannot be the predominant factor in drawing the boundaries of a voting district unless the district plan can pass muster under strict scrutiny

57
Q

Due Process Clause

A

14th amendment- Protects substantive rights to a fair trial

Also requires that the state act with adequate and fair procedures when it deprives a person of life, liberty, or property

58
Q

Is it property?

A

Property includes more than personal belongings and realty, chattels, or money, but an abstract need or desire for (or unilateral expectation of) the benefit is not enough. There must be a legitimate claim or “entitlement” to the benefit under state or federal law.

Ex: 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 but if the employee holds his position only at the will of the employer then there is no property interest in continued employment

59
Q

The Constitution prohibits race discrimination

A

in public settings/ by public actors and when there is significant state involvement in a state action

60
Q

Intrastate commerce

A

can be regulated via the commerce clause if the activity 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

or if it is noneconomic or noncommercial activity, if it has a direct substantial economic effect on interstate commerce

61
Q

13th amendment

A

banned slavery and the badges and incidents of slavery

62
Q

Express preemption

A

when a state law is directly preempted by a superseding federal law that specifies states may not pass laws in that area

63
Q

Field preemption

A

when a state law is preempted because Congress has legislated so significantly in that area of law

64
Q

Premption through implication

A

when state laws conflict directly with federal law or state laws interfere too significantly with federal goals

65
Q

standing

A

injury in fact, causation, redressibility

66
Q

zoning ordinances

A

cities may limit the time, place, and manner of adult businesses as long as the restrictions allow enough avenues of expression and protect against the secondary effects caused by such businesses

67
Q

Bill of attainder

A

a legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct. past conduct serves to define who those particular persons are. both the federal and state governments are prohibited from passing bills of attainder

68
Q

power to preserve the federal monopoly over foreign affairs

A

is an enumerated power of Congress

69
Q

full faith and credit clause

A

requires states to honor any rulings, decisions, and public records from other states

70
Q

selective prosecution of a statute

A

requires (1) discriminatory effect and (2) discriminatory purpose

very difficult to establish an equal protection claim especially if there have been some recorded prosecutions under the statute

71
Q

presidential powers

A

power to grant pardons except in the cases of impeachment

72
Q

establishment clause amendment #s

A

First amendment, applicable to states via 14th A

73
Q

right to contraceptives

A

fundamental right protected by 14th amendment

74
Q

state durational residency requirements

A

privilieges and immunities clause

citizens have a fundamental right to travel

any requirements that a person has to have lived in a state for a certain number of years to get a license must meet strict scrutiny

75
Q

To be valid, a time, place, and manner regulation of a public forum must be

A

narrowly tailored to achieve an important government interest

76
Q

highways

A

are a channel of interstate commerce even if they are entirely intrastate

77
Q

decision to prosecute

A

is an executive function entirely

78
Q

congress power to delegate

A

congress can appoint its own officers to carry own internal legislative tasks (to advise Congress and make rules)… cannot prosecute

79
Q

demonstrated support cases

A

where a state requires a candidate to win the primary before running in the general election

strict scrutiny- is the restriction narrowly tailored to further a compelling government interest

80
Q

USSC original jurisdiction

A

cases involving ambassadors, ministers and consuls, and in cases in which a state is a party

Congress may place certain limits on the Supreme Court’s appellate jurisdiction and on the jurisdiction of the lower federal courts

Congress cannot frustrate a body of supreme and uniform federal law by limiting USSC appellate jurisdiction ex: saying they cannot hear abortion cases anymore

81
Q

Gov seeks to punish a gov employee for speech or speech-related activities

A

If speech is not made pursuant to an employee’s official duties and the speech is a matter of public concern, courts must balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of a public service

public employees have the right under the 1A to express their views on issues of public concern

82
Q

necessary and proper clause

A

congress has the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government

thus, so long as the means are rationally related to a constitutionally-specified object, the means are also constitutional

83
Q

Advisory opinion rule

A

there must be specific present harm or threat of specific future harm … P must show that they have engaged in or wish to engage in specific conduct and that the challenged action poses a real and immediate danger to their interests

84
Q

ripeness

A

courts wait until policies have formalized and can be felt in concrete ways

two main factors are considered

1) fitness for judicial decision- an issue is not fit for judicial decision if it relies on uncertain or contingent future events that may not occur as anticipated
2) hardship to parties- an action is ripe for review if a party would have to risk substantial hardship to provoke enforcement of law

85
Q

mootness

A

a real controversy must exist at all stages of review. if matter has been resolved, it will be dismissed as moot

86
Q

mootness exception

A

controversies capable of repetition but evading review are not moot

ex: short duration, like abortion or defendant who voluntarily stops but could resume at any point

87
Q

injury in fact

A

a particularized (effects the P in a personal and individual way) and concrete (exists in fact) injury

88
Q

redressibility

A

a decision in the litigant’s favor must be capable of eliminating her grievance

89
Q

congressional conferral of standing

A

congress cannot grant standing to someone with no injury, but can create new interests

90
Q

standing to enforce government statutes

A

P may have standing to enforce a federal statute if she is within the zone of interests Congress meant to protect

91
Q

standing of organizations

A

an organization has standing if

1) there is an injury in fact to members that gives them the right to sue on their won behalf
2) the injury is related to the organization’s purpose AND
3) the individual member participation in the lawsuit is not required

92
Q

taxpayer standing

A

taxpayer does not have standing to challenge government expenditures except they can challenge congressional spending on first amendment establishment grounds (congressionally approved federal expenditures to aid christian schools)

93
Q

state law grounds

A

USSC will not decide a case that has been decided in state court on adequate and independent state law grounds even if federal issues are involved. state law is adequate if it is fully dispositive of the case and independent if it is not based on federal case interpretations of identical federal provisions

94
Q

Suspect classes

A

race, national origin, and sometimes alienage (state and local level only other than self-government)

95
Q

alienage (federal)

A

valid as long as not arbitrary and unreasonable

96
Q

fundamental rights denied to everyone

A

substantive due process problem, strict scrutiny

97
Q

fundamental rights denied to some but not others

A

equal protection problem, strict scrutiny

98
Q

strict scrutiny std abbreviated

A

necessary, compelling

99
Q

protected privacy rights

A 
marriage
use of contraceptives
procreation
abortion
childrearing
100
Q

voting - residency requirements

A

reasonable time periods for residency are ok (ex: 30 days)

101
Q

voting- ID

A

requiring government issued voter id is ok

102
Q

voting- own property

A

usually invalid unless special purpose election like water storage district

103
Q

government speech and government funding of speech

A

upheld if rationally related to a legitimate state interest

104
Q

rational basis test abbreviated

A

rational, legitimate

105
Q

content-neutral speech regulations

A

intermediate scrutiny

106
Q

intermediate scrutiny abbreviated

A

important, narrowly tailored

107
Q

over broad regulations

A

if a regulation of speech of speech-related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep the regulation is facially invalid and may not be enforced against anyone, even those that are not constitutionally protected

108
Q

void for vagueness

A

if a criminal law or regulation fails to give reasonable notice of what is prohibited it may violate the due process clause…. this principle is applied strictly when 1A activity is involved

109
Q

unbridled discretion rule

A

if a regulation gives licensing officials broad discretion over speech issues it is valid

this is determined by whether there are defined standards for applying the law

ie: you can get a permit if you do x, y, and z

110
Q

Injunction against speech in a public forum

A

content based: necessary to a compelling interest (SS)

content neutral: bust burden no more speech than is necessary to achieve an important government interest (IMS)

111
Q

incitement

A

can be regulated if the speech creates a clear and present danger of imminent lawless action. must be shown that imminent illegal conduct is likely and that the speaker intended to cause it

112
Q

fighting words

A

true threats are not protected by 1A … ex: cross burning to intimidate

personally abusive words that are likely to incite immediate physical retaliation in an average person are considered fighting words and are also not protected \

statutes that prohibit only certain fighting words (race, religion, gender) are invalid and will not be upheld

113
Q

obscenity

A

obscene speech is not protected

obscene speech is

1) appeals to prurient interest in sex, using a community standard
2) is patently offensive and an affront to the contemporary community standards; and
3) lacks serious value (literary, artistic, political, or scientific) using a national reasonable standard

114
Q

defamatory speech involving public official or public figure or public concern

A

1A requires P to prove actual malice

actual malice = statement made with knowledge of its falsity or with reckless disregard of its truth

115
Q

commercial speech

A

protected unless proposes unlawful activity or is misleading or fraudulent

regulation of anything other than commercial speech involving the above will only be upheld if:

1) serves a substantial government interest
2) directly advances that interest
3) is narrowly tailored to serve that interest

116
Q

standard for freedom of association and belief

A

least restrictive means necessary to further a compelling state interest unrelated to the suppression of ideas

117
Q

attending criminal trials

A

the right of the press to attend a criminal trial may be outweighed by an overriding interest stated in the trial judge’s findings… closure must be narrowly tailored to preserve a higher value

118
Q

laws regulating elections

A

if restriction on 1A activity is severe- SS

if restriction is reasonable and nondiscriminatory it generally will be upheld

119
Q

limits on contributions to elections

A

intermediate scrutiny

sufficiently important interest

120
Q

government employer punishing public employee’s speech

A

acceptable when the speech is made on the job and pursuant to the employee’s official duties, even if the matter touches on a matter of public concern

tests for not pursuant to official duties

1) not a matter of public concern: government employer has wide deference and ok to punish if the speech was disruptive of the work environment
2) a matter of public concern is involved: courts must balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service

121
Q

using free exercise clause to challenge government regulation

A

only acceptable if the regulation was specifically designed to interfere with religion

122
Q

ministers

A

must be granted an exception for employment discrimination

123
Q

quit job for religious reasons

A

state cannot refuse to grant unemployment benefits as long as religious belief is sincere

124
Q

amish

A

must be granted an exception from law requiring compulsory school attendance based on free exercise clause and the fundamental right to educate one’s children

125
Q

government funding being used to attend a religiously affiliated school

A

establishment clause question

government may give aid as long as the class is defined without reference to religion or religious criteria. program will be valid

126
Q

aid to colleges and hospitals w/ a religious affiliation

A

establishment clause question

ok as long the government program specifies the aid must be used for nonreligious purposes and the recipient agrees

127
Q

aid to religious grade school and high schools

A

establishment clause question
usually found to have a secular purpose but may fail other parts of lemon test (ex: if the program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be stricken for excessive government entanglement)

128
Q

school sponsored religious activity

A

invalid

129
Q

school accommodation of religion

A

valid

if a school allows public and private orgs to use school property when not in session, it cannot deny access to a religious organization merely because religious topics will be discussed

130
Q

Tresspas

A

1A does not afford the press with any special right to trespass while investigating a story on a matter of public concern even if the trespass was done to investigate a story about a public figure or matter of public concern

131
Q

Invasion of privacy

A

It is a tort to publish private information about a person if a reasonable person would object to having the information made public. Truth is not a defense.

If the matter is one of legitimate public interest, its publication is privileged if it is made without actual malice, especially if the information was obtained legitimately, such as a picture taken in public.

132
Q

limits on contributions to oppose ballot referenda

A

While the government may limit the amount of contributions that an individual can contribute to a candidate’s campaign (to avoid corruption or the appearance of corruption), the government may not limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association.

Regulations that attempt to limit this are subject to IMS and fail

The Bar Exam (7 decks)

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