Constitutional Law

Question 1

Commerce Clause:

Answer 1

The Constitution gives Congress broad power to regulate interstate commerce. the Supreme Court has held that the Commerce Clause gives Congress the power to regulate (i) the channels of interstate commerce, (ii) the instrumentalities of interstate commerce, and (iii) activities that have a substantial effect on interstate commerce.

Question 2

two tests to determine the validity of a law under the third prong:

Answer 2

if the activity regulated is economic or commercial, it will be upheld if Congress could rationally conclude that the activity in aggregate, substantially affects interstate commerce. However, if the activity is intrastate and is noncommercial and not economic, it will be upheld under the Commerce clause only if Congress can make a factual showing that the activity actually has a substantial economic effect on interstate commerce

Question 3

• Exception to DCC

Answer 3

An exception to the Dormant Commerce Clause is the market-participant doctrine. Which occurs when the state is acting as a market participant or business rather than regulator. If the state is acting as a market participant, it is allowed to favor its own resident

Question 4

11th Amendment:

Answer 4

Generally, the 11th amendment prevents foreign or private citizens from bringing suit against the government for violations of law and for money damages. There are a number of exceptions in which an individual can bring suit in federal court. A citizen may sue a state official for injuctive relief to prevent him from enacting a state law that violates federal law or compel him to follow a state law if the state consents, congress authorizes or for individual damages.

Question 5

First Amendment:

Answer 5

The First Amendment of the United States Constitution guarantees the freedom of speech and assembly. The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment. Regulations on the content of speech are subject to strict scrutiny and therefore, are generally invalid.

However the government has a compelling interest in the following categories, which are deemed “unprotected” speech under the First Amendment: inciting imminent lawless action, fighting words, obscenity, defamatory speech, and commercial speech. A law regulating unprotected speech needs only to pass rational basis meaning that it must be rationally related to a legitimate government interest.

Question 6

Inciting imminent lawless action:

Answer 6

This is speech that creates a “clear and present danger.” Speech that is directed at inciting and likely to incite of imminent lawlessness. Mere advocacy of lawlessness is protected speech.

Question 7

• Fighting words:

Answer 7

Government may punish speech if it is likely to cause an immediate violent response against the speaker.

Question 8

True threats

Answer 8

are words of defamation, harassment, or other forms of “words as conduct” with the intent to cause fear of bodily harm. Such as burning a cross carried out with an intent to intimidate

Question 9

• Obscenity:

Answer 9

Government may regulate obscenity. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: (i) appeals to the prurient interest in sex using the community standard, (ii) is patently offensive under the community standard, and (iii) lacks serious value under literary, artistic, political, or scientific means using a national standard.

Question 10

• Defamatory speech:

Answer 10

Defamatory statements can be burdened. If the defamatory statement is about a public official or public figure or involves public concern, the First Amendment requires that the plaintiff prove that there was defamatory language “of or concerning” the plaintiff that was published to a third party plus falsity and some degree of fault. If the statements were concerning a public official/figure then actual malice is required. If the statements were concerning private figures, then negligence is required.

Question 11

• Commercial Speech:

Answer 11

Commercial speech is afforded First Amendment if it is truthful. However, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it: (i) serves a substantial government interest; (ii) directly advances that interest; (iii) is narrowly tailored to serve that interest meaning there just must be a reasonable fit between the goal and chosen means.

Question 12

Time, Place, Manner Restrictions

Answer 12

However, the government may regulate the conduct of speech a bit more with time, place, and manner regulations. The breadth of this power depends on whether the forum involved is a public forum, designated public forum, a limited public forum, or a nonpublic forum.

Question 13

Public Forums/Designated Public Forums

Answer 13

Public property that has historically been open to speech-related activities, such as streets, sidewalks, public parks, and the internet, are considered a public forum. Public property that has not historically been open to speech-related activities, but the government has thrown open for such activities on a permanent or limited basis by practice or policy, such as schoolrooms that are open for after-school use by social, civic, recreation groups, are considered a designated public forum.
• To avoid strict scrutiny, a government regulation on time, place, manner of speech in a public forum and designated public forums must (i) be content neutral; (ii) be narrowly tailored to serve a compelling government interest; and (iii) leave open alternative avenues of communication.

Question 14

Limited and Nonpublic Forums

Answer 14

Limited public forums are classified as government property not historically linked with speech but open for specific speech activity such as a school gym opened to host a debate on a particular community issue. Nonpublic forums are classified as government property not historically linked with speech and not held open for speech activities such as military bases, schools while classes are in session, government workplaces, airports, and prisons.
• In such locations, regulations are invalid if they are: (i) viewpoint neutral; and (ii) reasonably related to a legitimate government purpose.

Question 15

Overbreadth:

Answer 15

A law is overbroad if it regulates substantially more speech than the Constitution allows. An overbroad law restricts unprotected speech, but in doing so also restricts protected speech

Question 16

Due Process:

Answer 16

The Due Process Clause protects the rights of persons. Both federal and state governments are subject to due process constraints. Fifth Amendment Due Process Clause applies to federal government and Fourteenth Amendment Due Process Clause applies to the states.

Question 17

• Procedural Due Process:

Answer 17

Individuals have rights to a fair process when government acts to deprive of life, liberty, or property. Due process arises only if the government acts to deprive an individual, not when the government acts generally.

Question 18

• Substantive Due Process

Answer 18

Substantive due process involves the determination of whether government has adequate reasons for depriving life, liberty, or property. This encompasses both fundamental rights and non-fundamental rights.

Question 19

• 14th Amendment – Equal Protection:

Answer 19

The Equal Protection Clause of the Fourteenth Amendment prevents states from unfairly treating similarly situated persons differently.

Question 20

Freedom of Religion

Answer 20

Religion is protected under the Free Exercise Clause and the Establishment Clause under the First Amendment. Courts may inquire into the sincerity of the religious beliefs, but not their truth.

Question 21

• Free Exercise Clause:

Answer 21

The Free Exercise Clause prohibits the government from punishing someone solely on the basis of that person’s religious beliefs or conduct. Discriminatory laws are subject to strict scrutiny.
o This clause only applies if the purpose of the government action is to limit or interfere with religious practice of beliefs.
o Neutral laws of general applicability are not subject to Free Exercise clause.

Question 22

• Establishment Clause

Answer 22

The Establishment Clause prohibits government acts that establish or sponsor religion or give preference to one religion over another. Government action concerning religion is valid if:
* whether the state action is neutral and/or coercive with regard to religion,
* whether it is consistent with historical practice,
* and whether the Founders would have considered it acceptable.

Question 23

Fifth Amendment – Takings Clause:

Answer 23

The Fifth Amendment prohibits governmental taking of private property for public use without just compensation. This arises from the Fifth Amendment but is made applicable to the state through the Fourteenth Amendment. A public use is defined broadly and may include giving land to a private party for commercial development. A taking can be physical or regulatory.

Question 24

physical appropriation

Answer 24

A taking will almost always be found if there is an actual physical appropriation or destruction of a person’s property

Question 25

Regulatory Taking

Answer 25

While the government must fairly compensate an owner when her property is taken for public use, it need not pay compensation for mere regulation of property. A taking will almost always be found if there is an actual physical appropriation or destruction of a person’s property. A restriction on how real property is used may constitute a taking. Although cities may generally regulate the use of real property, a regulation will constitute a taking if it (i) amounts to a physical appropriation, (ii) denies an owner of all economic use, or (iii) unreasonably interferes with distinct investment-back expectations of the owner.

Question 26

Forced conveyances

Answer 26

Generally, a city may not force landowners to convey interests in their land to the city in exchange for permission to build improvements on the property. These forced conveyances usually violate the Takings Clause of the Fifth Amendment. However, a city can impose such a requirement if (i) a close nexus exists (the government can show that the condition relates to a legitimate government interest), and (ii) proportionality exists (the adverse impact of the proposed building/development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights)

Question 27

Enabling Clause

Answer 27

The federal government may exercise only those powers specifically enumerated by the Constitution. The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by that amendment. However, this clause does not grant Congress the authority to expand those rights or create new ones. In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.