Constitutional Law

Question 1

What is a public forum?

Answer 1

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

Question 2

What is a designated public forum?

Answer 2

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).

Question 3

What is a limited public forum?

Answer 3

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).

Question 4

What is a nonpublic forum?

Answer 4

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.

Question 5

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?

Answer 5

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

Question 6

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

Answer 6

viewpoint neutral and rationally related to a legitimate government purpose.

Question 7

What is the test for content regulation any forum?

Answer 7

Strict scrutiny

Question 8

Curriculum-based public high school activities are

Answer 8

not public forums

Question 9

The First Amendment Free Exercise Clause

Answer 9

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.

Question 10

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

Answer 10

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.

Question 11

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

Answer 11

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

Question 12

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

Answer 12

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

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

Question 13

Held to be Fundamental Rights

Answer 13

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

Question 14

International Travel

Answer 14

is NOT a fundamental right

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

Question 15

Strict Scrutiny test

Answer 15

necessary to achieve a compelling government interest

government usually loses

Question 16

What is the test for abortion regulations?

Answer 16

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

Question 17

What is the rule for regulating abortion after viability?

Answer 17

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

Question 18

One person, one vote—Rule for congressional districts

Answer 18

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

Question 19

One person, one vote—Rule for state government districts

Answer 19

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)

Question 20

Abstention

Answer 20

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.

Question 21

Challenging a proposed law is?

Answer 21

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

Question 22

Third-party standing

Answer 22

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

Question 23

Test for Congressional Delegation of Legislative Power

Answer 23

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.

Question 24

Test for Congress tax and spend power

Answer 24

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

Question 25

Congress attaches conditions when giving money to states/ state agencies

Answer 25

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

Question 26

Congress Police Powers

Answer 26

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

Question 27

Supremacy clause

Answer 27

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

Question 28

Contract clause applies to what types of law

Answer 28

State and local law only

Question 29

Protected property rights

Answer 29

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

Question 30

Contract clause- private parties

Answer 30

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

Question 31

Contract clause- government is a party

Answer 31

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

Question 32

Sovereign immunity

Answer 32

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

Question 33

Anti-commandeering principle

Answer 33

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

Question 34

Dormant commerce clause

Answer 34

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

Question 35

What is the test for regulating fundamental rights?

Answer 35

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

Question 36

Narrowly tailored

Answer 36

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

Question 37

Constitutions speech and debate clause

Answer 37

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

Question 38

Public officials - defamation

Answer 38

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

Question 39

Quasi-suspect classes

Answer 39

Gender (exceedingly persuasive justification for the discrimination) Children not born inside marriage Use intermediate scrutiny

Question 40

Intermediate scrutiny test

Answer 40

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

Question 41

State and local govt rule for alienage

Answer 41

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

Question 42

Federal government rule for alienage

Answer 42

rational basis review

Question 43

Privileges or Immunities Clause of the 14th A

Answer 43

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

Question 44

A business license is a

Answer 44

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

Question 45

Rational basis test

Answer 45

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

Question 46

Prior restraint

Answer 46

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

Question 47

Prior restraint criminal

Answer 47

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

Question 48

Content based laws

Answer 48

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

Question 49

Content neutral laws

Answer 49

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

Question 50

Commerce Clause

Answer 50

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.

Question 51

Takings clause

Answer 51

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

Question 52

what constitutes an undue burden on abortion

Answer 52

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

Question 53

what statutes to regulate abortion can a court adopt

Answer 53

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

Question 54

state actions that restrict political speech or political activity

Answer 54

strict scrutiny- rarely pass

Question 55

the federal property clause of article IV, section 3

Answer 55

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

Question 56

15th amendment voting

Answer 56

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

Question 57

Due Process Clause

Answer 57

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

Question 58

Is it property?

Answer 58

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

Question 59

The Constitution prohibits race discrimination

Answer 59

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

Question 60

Intrastate commerce

Answer 60

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

Question 61

13th amendment

Answer 61

banned slavery and the badges and incidents of slavery

Question 62

Express preemption

Answer 62

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

Question 63

Field preemption

Answer 63

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

Question 64

Premption through implication

Answer 64

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

Question 65

standing

Answer 65

injury in fact, causation, redressibility

Question 66

zoning ordinances

Answer 66

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

Question 67

Bill of attainder

Answer 67

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

Question 68

power to preserve the federal monopoly over foreign affairs

Answer 68

is an enumerated power of Congress

Question 69

full faith and credit clause

Answer 69

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

Question 70

selective prosecution of a statute

Answer 70

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

Question 71

presidential powers

Answer 71

power to grant pardons except in the cases of impeachment

Question 72

establishment clause amendment #s

Answer 72

First amendment, applicable to states via 14th A

Question 73

right to contraceptives

Answer 73

fundamental right protected by 14th amendment

Question 74

state durational residency requirements

Answer 74

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

Question 75

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

Answer 75

narrowly tailored to achieve an important government interest

Question 76

highways

Answer 76

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

Question 77

decision to prosecute

Answer 77

is an executive function entirely

Question 78

congress power to delegate

Answer 78

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

Question 79

demonstrated support cases

Answer 79

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

Question 80

USSC original jurisdiction

Answer 80

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

Question 81

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

Answer 81

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

Question 82

necessary and proper clause

Answer 82

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

Question 83

Advisory opinion rule

Answer 83

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

Question 84

ripeness

Answer 84

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

Question 85

mootness

Answer 85

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

Question 86

mootness exception

Answer 86

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

Question 87

injury in fact

Answer 87

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

Question 88

redressibility

Answer 88

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

Question 89

congressional conferral of standing

Answer 89

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

Question 90

standing to enforce government statutes

Answer 90

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

Question 91

standing of organizations

Answer 91

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

Question 92

taxpayer standing

Answer 92

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)

Question 93

state law grounds

Answer 93

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

Question 94

Suspect classes

Answer 94

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

Question 95

alienage (federal)

Answer 95

valid as long as not arbitrary and unreasonable

Question 96

fundamental rights denied to everyone

Answer 96

substantive due process problem, strict scrutiny

Question 97

fundamental rights denied to some but not others

Answer 97

equal protection problem, strict scrutiny

Question 98

strict scrutiny std abbreviated

Answer 98

necessary, compelling

Question 99

protected privacy rights

Answer 99

``` marriage use of contraceptives procreation abortion childrearing ```

Question 100

voting - residency requirements

Answer 100

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

Question 101

voting- ID

Answer 101

requiring government issued voter id is ok

Question 102

voting- own property

Answer 102

usually invalid unless special purpose election like water storage district

Question 103

government speech and government funding of speech

Answer 103

upheld if rationally related to a legitimate state interest

Question 104

rational basis test abbreviated

Answer 104

rational, legitimate

Question 105

content-neutral speech regulations

Answer 105

intermediate scrutiny

Question 106

intermediate scrutiny abbreviated

Answer 106

important, narrowly tailored

Question 107

over broad regulations

Answer 107

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

Question 108

void for vagueness

Answer 108

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

Question 109

unbridled discretion rule

Answer 109

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

Question 110

Injunction against speech in a public forum

Answer 110

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)

Question 111

incitement

Answer 111

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

Question 112

fighting words

Answer 112

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

Question 113

obscenity

Answer 113

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

Question 114

defamatory speech involving public official or public figure or public concern

Answer 114

1A requires P to prove actual malice actual malice = statement made with knowledge of its falsity or with reckless disregard of its truth

Question 115

commercial speech

Answer 115

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

Question 116

standard for freedom of association and belief

Answer 116

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

Question 117

attending criminal trials

Answer 117

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

Question 118

laws regulating elections

Answer 118

if restriction on 1A activity is severe- SS | if restriction is reasonable and nondiscriminatory it generally will be upheld

Question 119

limits on contributions to elections

Answer 119

intermediate scrutiny | sufficiently important interest

Question 120

government employer punishing public employee's speech

Answer 120

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

Question 121

using free exercise clause to challenge government regulation

Answer 121

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

Question 122

ministers

Answer 122

must be granted an exception for employment discrimination

Question 123

quit job for religious reasons

Answer 123

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

Question 124

amish

Answer 124

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

Question 125

government funding being used to attend a religiously affiliated school

Answer 125

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

Question 126

aid to colleges and hospitals w/ a religious affiliation

Answer 126

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

Question 127

aid to religious grade school and high schools

Answer 127

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)

Question 128

school sponsored religious activity

Answer 128

invalid

Question 129

school accommodation of religion

Answer 129

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

Question 130

Tresspas

Answer 130

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

Question 131

Invasion of privacy

Answer 131

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.

Question 132

limits on contributions to oppose ballot referenda

Answer 132

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