CONSTITUTIONAL LAW Flashcards
STANDING
A party has standing only if they can show a concrete stake in the outcome of the controversy. A plaintiff will be able to show a sufficient stake in the controversy only if they can show an injury in fact, caused by the defendant, that can be remedied by a decision in their favor.
ORGANIZATIONAL STANDING
An organization can show standing to assert a claim on behalf of its members if
- The organization exists to advance the interests of its members;
- The members have standing; AND
- The claim does not require the presence of all the members.
STATE ACTION
The U.S. Constitution generally prohibits government infringement of constitutional rights. Litigants must show the action is attributable to the state, including private individuals who:
- Are performing exclusive public functions, AND
- Have significant state involvement in their activities.
RIPENESS
A federal court will not hear a case before it has fully developed, to do so would be premature and any potential injury is speculative.
TIP: Look for the problem where a new law infringes a right, however the Plaintiff has not yet engaged in the prohibited action, so has not yet suffered an injury.
MOOTNESS
A case where the dispute has ended or was resolved before review is considered moot. However, such a case can be heard when the wrong can be repeated (EX: Woman is denied an abortion and gives birth to the child. Technically, the dispute regarding her abortion rights has ended, but individuals may be denied abortions in the future, so the claim involves wrong that can be repeated), the defendant voluntarily ceased but can restart the offending practice, or in class action suits.
SUPREMACY CLAUSE
If federal law preempts state law, a state law will be invalid under the Supremacy Clause. A federal law impliedly preempts a statute if:
- Federal and state laws are mutually exclusive (following one law means you are not following the other, such as Fed law requires party hats to be worn by clowns, but State law mandates clowns cannot wear party hats)
- State law impedes the objectives of federal law, OR
- Congress evidences a clear intent to occupy / preempt the field (think nuclear power, where you don’t want each state to come up with their own way of disposing of radioactive material).
1ST AMENDMENT
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
4TH AMENDMENT
The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.
FIFTH AMENDMENT
NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS CRIME, UNLESS ON A PRESENTMENT OR INDICTMENT OF A GRAND JURY, EXCEPT IN CASES ARISING IN THE LAND OR NAVAL FORCES, OR IN THE MILITIA, WHEN IN ACTUAL SERVICE IN TIME OF WAR OR PUBLIC DANGER; NOR SHALL ANY PERSON BE SUBJECT FOR THE SAME OFFENSE TO BE TWICE PUT IN JEOPARDY OF LIFE OR LIMB; NOR SHALL BE COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF NOR BE DEPRIVED OF LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE PROPERTY BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION
5TH AMENDMENT APPLICABILITY
The 5th Amendment only applies to individuals and is frequently used to protect persons from self-incrimination. It does not apply to corporations and does not apply to the compelled production of documents. It’s the home of the double jeopardy clause, the due process and takings clauses, and the right to a grand jury. Also contains an implied equal protections provision.
MBE TIP: Age retirement mandate for military members uses this as authority.
6TH AMENDMENT
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Comes up under public trial, speedy trial, right to an attorney, right to an impartial jury, and the confrontation clause.
7TH AMENDMENT
In suits at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the U.S. than according to the rules of the common law.
NOTE ⇢ Federal, civil claim right to a jury is not applicable to states hearing state law claims.
7TH AMENDMENT
In suits at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the U.S. than according to the rules of the common law.
NOTE ⇢ Federal, civil claim right to a jury is not applicable to states hearing state law claims.
8TH AMENDMENT
Excessive bail shall not be required, not excessive fines imposed, nor cruel and unusual punishments inflicted.
10TH AMENDMENT
All powers not granted to the federal government, nor prohibited by it to the states, are reserved to the states.
11TH AMENDMENT
A state is not subject to suit in federal courts by a private party without the consent of the state. However, actions can be brought against state officers to enjoin future conduct that violates the US Constitution or federal law.
Suits against states by other states are allowed.
Suits against counties and municipalities are allowed, as are suits for injunctive relief against State Officers who must pay claims out of their own pockets.
13TH AMENDMENT
Prohibits all slavery, as well as badges and incidents of slavery, as well as involuntary servitude within the U.S.
14TH AMENDMENT
Home of the due process clause, which is used to incorporate the 5th Amendment due process clause.
Also home to the equal protection clause, and the citizenship clause (anyone born or naturalized in the US is a citizen of the US)
15TH AMENDMENT
Prohibits states AND the federal government from denying any citizen the right to vote on account of race or color, or previous condition of servitude.
DECLARATORY JUDGMENT
A ruling that states the legal effect of a regulation or conduct of parties is permitted. Advisory opinions are not permitted - these violate standing requirements.
DUE PROCESS CLAUSE
The due process clause comes from both the 5th and 14th Amendments:
The 5th Amendment guarantees that no person shall be deprived of life, liberty, or property without due process of law by the federal government.
The 14th Amendment guarantees that no state shall deprive any person of life, liberty, or property, without due process of law.
TIP: Think about due process two ways, Substantive due process involves the government interfering with a fundamental right, whereas Procedural due process is concerned with Notice & Hearing.
SUBSTANTIVE DUE PROCESS
Where a law limits the liberty of all persons to engage in some activity, it is a substantive due process issue.
If a fundamental right is involved, strict scrutiny applies. Otherwise, rational basis applies.
FUNDAMENTAL RIGHTS TEST
Infringement of a fundamental right must satisfy strict scrutiny - meaning the government must show the law is necessary to serve/achieve a compelling government interest.
Fundamental rights include voting, interstate travel, the right to privacy (marry, procreate, use contraceptives, raise one’s children, keep family together, custody, and the right to refuse medical treatment)
NON-FUNDAMENTAL RIGHTS TEST
Infringement of a non-fundamental right must satisfy the rational basis test, where the plaintiff must show the law is not rationally related to a legitimate government interest.
STRICT SCRUTINY
Strict scrutiny is applicable when: (a) Classification is based on a suspect class [NORA - Race, National Origin, or Alienage] OR (b) when the law infringes on a fundamental right for a class of people [I.e., vote, exercise of religion, have access to the courts, and interstate travel].
Under strict scrutiny, the government must show that the classification is the least restrictive means necessary to serve a compelling government interest.
INTERMEDIATE SCRUTINY
Intermediate Scrutiny is applied When a classification is based on a quasi-suspect class [gender, non-marital children], the government must show that the classification is substantially related to an important government interest.
RATIONAL BASIS
If rational basis is applied, the plaintiff, not the government, must show the classification is not rationally related to any legitimate government interest.
EQUAL PROTECTION
The Equal Protection Clause of the 14th Amendment (applicable to the States) and the 5th Amendment (applicable to the government through due process clause) prohibits the government from denying citizens equal protection under the laws.
Equal Protection issues arise when the government treats similarly situated individuals differently based on classifications among individuals.
DISCRIMINATORY CLASS
To determine if a discriminatory class exists, it must be shown that EITHER:
- The law is discriminatory on its face, OR
- The law is facially neutral but applied in a discriminatory manner, OR
- There was a discriminatory motive for the law
PRIVILEGES AND IMMUNITIES CLAUSE
The privileges AND immunities clause prevents a STATE from treating citizens of other states in a discriminatory manner.
It only protects non-residents of the state when the discrimination concerns a fundamental rights; I.e., rights relating to important commercial activities or civil liberties.
The clause only applies if the discrimination is intentionally protectionist in nature and is not applicable to aliens or corporations.
COMMERCE CLAUSE
Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian Nations.
This includes the power to regulate the CIA ⇢ Channels and Instrumentalities of interstate commerce, persons or things in interstate commerce, and economic activities that have a substantial effect on interstate commerce.
ESTABLISHMENT CLAUSE
The government is prohibited from establishing or endorsing / supporting religion.
Laws that discriminate against a religion must satisfy strict scrutiny ⇢ Government must show the law is narrowly tailored to achieve a compelling government interest and the least restrictive means is employed to do so.
TIP: If a law is subject to strict scrutiny, it will almost always be deemed void. In that case, your next step would be to determine whether the law passes the LEMON Test.
LEMON TEST
Government action that benefits religion does not violate the Establishment Clause if: PEEE
- It has a secular Purpose (no religious basis ⇒ for example, a Cross does not have a secular purpose - it is based in religion)
- Its primary Effect does not advance or inhibit religion (incidental effects are allowed), AND
- It does not _E_xcessively _E_ntangle the government with religion.
FREE SPEECH
The government is limited in how it may regulate speech.
Regulation of speech MUST not be:
(1) A prior Restraint
(2) Overbroad
(3) Vague, AND
(4) Unfettered Discretion
CONTENT-NEUTRAL RESTRICTIONS
The government may regulate the time, place, and manner of content-neutral speech if the regulation satisfies intermediate scrutiny.
Under intermediate scrutiny ⇒ The government must show that the regulation is narrowly tailored to achieve a significant government interest and leaves open alternative channels of communication. This regulation is not required to be the least restrictive means of achieving this government objective.
PUBLIC FORUM
A public forum is an area traditionally open to the public where free speech is permitted (public parks, sidewalks)
Content-based government regulation of speech in a public forum must meet strict scrutiny.
Content-neutral government regulation of speech in a public forum must meet intermediate scrutiny.
DESIGNATED PUBLIC FORUM
A designated public forum is one which is not historically open for public speech but can be opened at the government’s discretion.
Content-based Regulations/Restrictions ⇒ Strict Scrutiny
Content-Neutral Regulations/Restrictions ⇒ Intermediate Scrutiny
TIP: Think about a public school (non-public forum) that the government has “thrown open” on Sundays for youth bible study.
SPEECH THAT INCITES ILLEGAL ACTIVITY
A state cannot forbid advocating for the use of force or of law violations UNLESS it is directed at producing or inciting imminent lawless action AND is likely to produce such action.
Further, “fighting words” that are “true threats” are not protected when they are statements communicating intent to place an individual in fear of bodily harm.
