Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Cal Bar > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

I. Procedural Issues

Standing

A

Plaint must demonstrate that he has suffered an:

  1. Injury in fact
  2. That was caused by the government; and
  3. A ruling by the court will redress that injury;
  4. Must have concrete stake in the outcome.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Association Standing

A

An organization has standing to bring suit on behalf of its members when its members would:

  1. Have standing to sue in their own right
  2. The interests it seeks to protect are related to the organization’s purpose; and
  3. Individual member participation is not required.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Third Party Standing

A

Generally barred but allowed when would be difficult for the third persons to assert their own rights or if a special relationship exists.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Ripeness

A

Plaintiff is trying to bring a suit before injury has occurred, Federal Court will not hear the case unless the plaintiff has been harmed or immediate threat of harm.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Mootness

A

A case where the dispute has ended or was resolved before the review is considered moot.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

State Action

A

Because the US Constitution only prohibits governmental infringement of constitutional rights, the litigant must show the action is attributable to the state, which includes government agencies and officials acting under the color of state law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

11th Amendment

A

Bars a citizen of one state from suing another state without its consent in Federal Court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Supremacy Clause

A

If the federal preempts state law, the state law will be invalid under the Supremacy Clause.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

II. Commerce Clause

1. Federal Commerce Clause - Article 1 Section 8

A

Article 1 Section 8 gives Congress the power to regulate commerce with foreign nations and several states, to assure the survival of a non-fragmented central government, and to prevent rivalries with the Indian tribes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Regulate Channels of Interest Commerce (Gibbons v. Oden)

A

Commerce was defined as a plenary, including all commercial intercourse involving more states than one regulating the channels of interstate commerce.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

National/Cumulative Economic Effect

A

Any national/cumulative economic effect on commerce is sufficient, whether direct or indirect, whether it involves manufacture or transportation, it may be completely intrastate, and it may occur before or after goods are shipped. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Regulate Activities Substantially Effect Interstate Commerce (Lopez Limitation)

A

The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce. However, if the regulated intrastate activity is noncommercial and noneconomic, it cannot be regulated unless Congress can factually show a substantial economic effect on interstate commerce (Lopez/Morrison).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Modernly - Broad Power

A

Have treated commerce clause almost like a “Federal Police Power”, permitting congress to prevent almost any interstate activity deemed adverse to public health and welfare.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Argue the facts of the hypothetical - Feds vs State

A

Feds will argue - Commerce power extends to any issue substantially affecting interstate commerce. The necessary and proper clause can be used as a means of effectuating their goals.
States will argue - A strict interpretation of the 10th Amendment to particularly the areas of health, safety, morals, welfare, and activity does not substantially affect IC.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Necessary and Proper Clause

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

State - 10th Amendment

A

The federal government may not compel the States to enforce or administer a federal regulatory program.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

New York v. U.S.

A

Under the 10th Amendment, Congress exceeded its constitutional power when it enacted a key law aimed at forcing states to dispose of low-level radioactive waste generated within their borders because it directed a state to regulate in a manner dictated by the federal government.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

III. Dormant Commerce Clause

A

A state may regulate an area of interstate commerce if Congress has not enacted laws so long as its statutes do not:

  1. Discriminate against out-of-state commerce, or
  2. Unduly Burden Interstate Commerce
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q
  1. Article 1 Sec/8 Concurrent Power/10th Amendment
A

Article 1 Sec 8 gives congress power but not exclusive power. States have concurrent power through the 10th Amendment to regulate in ways that affect interstate commerce. Thus, an objection to state authority rests entirely on the Dormant Commerce Clause.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Discriminate Against Out-of-State Commerce

A

A state law discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competition. If a statute is discriminatory, the state may be valid if:

  1. It furthers an important noneconomic state interest, and
  2. there are no reasonable, nondiscriminatory alternatives.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Important Noneconomic State Interest

A

The state has an important interest in protecting the health, safety, and welfare of State Citizens.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

a. Issue - Does state law violate the Constitution by infringing upon Congressional Commerce Power?
B. Principle - Federal Commerce Power, although unexercised by Congress, may by its force inhibit state regulatory power.

A
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

If State Law discriminates against out-of-state competition, it is invalid unless:

A
  1. The law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives.
  2. The state is market participant; or
  3. The government action involve is typically performance of a traditional government function.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Exceptions: Market Participant Exception

A

Nothing in the Commerce Clause forbids a state from participating in the market and exercising the right to favor its own citizens over others.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Maine v. Taylor

A

A. Need reason to treat instate articles of commerce different from out of state articles other than their origin.
B. Purpose could not be served by available lesser discriminatory means.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q
  1. Congressional Approval of Discrimination
A

If a state regulation does not discriminate intentionally against interstate commerce, it is given great deference by the court.

a. If a state regulates even handedly (neutrally with respect to interstate commerce).
b. To effectuate a legitimate local public interest and
c. The effects on commerce are only incidental, it will be upheld
d. Unless the burden on interstate commerce is excessive in relation to the putative local benefits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Factors to Consider

A

State Interest

  1. Health, Safety, Morals, and Welfare
  2. Natural Resources
  3. Local Concern
  4. Rational/Legitimate Interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Effect on Interstate Commerce - Extent

A
  1. Discriminatory in nature
  2. Economic Considerations - Undue Burden?
  3. National uniformity (older approach)
  4. Effect on Commerce - Balance extent of burden on IC against state’s interest in regulation.
  5. Alternative means.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

The Doctrine of Alternative Means

A

If state has a strong interest which can be accomplished by alternative means with less burden on commerce, the law will be held invalid.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Preemption Doctrine

Federal Power

A

Article VI states the Constitution and the laws made in pursuance of it are to be the supreme law of the land and superior to any state law or constitutional provision in conflict with them.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Preemption

Expressed Preemption

A

Means that federal rule or order contains a clause or provision expressly removing power from the states to deal with a particular subject, if so supremacy controls.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Implied Preemption

A

Means that there is no express language describing preemption and its limits, but the court must imply preemption from the intentions of congress, or the executive based on the nature and characteristics of the federal regulation. Three types:

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Conflict Preemption

A

Occurs when it is impossible to comply with both a state and federal regulation.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Occupy Field Preemption

A

Occurs when Federal Law or regulation is so pervasive in an area that the comprehensive nature of Federal regulation admits of no alternative or supplemental state regulation - even those that do not conflict.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Factors to Consider - argue both sides (intent of Congress-key)

A

a. Pervasiveness of Federal Plan of regulation - degree overlap
b. Local interest/national uniformity
c. Similarity of federal/state interest
d. historical classification of subject matter
e. dominance of federal interest
f. importance of state interest

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Effect

A
  1. If a good argument can be advanced that intent was to preempt field, then state law is invalid.
  2. If intent was that the state could supplement, then the state law must be validated under the 10th Amendment.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Feds - Minimum Standard/States Higher Standard

A

Federal rules may set standards (minimum). However, that does not prevent a state from setting higher standards.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Due Process

Substantive Due Process

A

Where 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.

39
Q

a. Life/Liberty/Property Interest

A

The due process clause of the 5th Amendment provides that the federal government shall not deprive any person of life, liberty, or property without due process of law.

40
Q

b. Economic/Social Regulation

A

Any rational interest by state will justify economic regulation. Individual economic right is given less protection than individual liberties. State law must be reasonable and fair not arbitrary and capricious. Balance individual loss of liberty against state interest in enacting legislation.

41
Q

Rational Basis

A

The plaintiff, not the government, must show classification is not rationally related to any legitimate government interest.

42
Q

Fundamental Right

A

Infringement of a fundamental right must satisfy strict scrutiny (the government must show law is necessary to serve a compelling government interest).
Such as: right to vote, interstate travel, the right of privacy (marriage, procreate, etc.)

43
Q

Procedural Due Process

A

14th for the states, 5th for the federal government, guarantees that no person shall be denied life, liberty, or property without due process of the law.

44
Q

Substantive
a. Life/Liberty/Property Interest
Liberty

A

Includes more than freedom from physical restrains e.g., right to contract, to engage in gainful employment, to be free of defamation by government, and the right to develop certain parental interests.

45
Q

Property

A

Includes ownership and entitlements granted by state or federal law i.e., a legitimate claim to certain benefits such as public education, continued welfare benefits, and, under certain circumstances, public employment.

46
Q

Procedural Due Process

b. Notice/Opportunity to be Heard

A

a. The importance of the interest
b. The value specific procedural safeguards to that interest; and
c. The government interest in fiscal and administrative efficiency
C. Balance Factors

47
Q

VI. Eminent Domain

A

The 5th Amendment applied to the states via the 14th Amendment, nor shall private property be taken for public use without just compensation.

48
Q
  1. Taking - Total v. Partial
A

The 5th Amendment as applied to the states via the 14th Amendment prohibits the government from:
1. Taking
2. Private Property;
3. For Public Use
4. Without just compensation.
Just compensation is measured by the fair market value of the property at the time of the taking (relocation/moving costs not included).

49
Q

Possessory Taking

A

Occurs when the government

  1. Appropriates
  2. Destroys or permanently physically occupies the property; or
  3. Government permanently deprives the owner of all economic value, requiring the land be left substantially in its natural state.
50
Q

Regulatory Taking

A

Occurs when the government renders property economically unviable due to a regulation (i.e., zoning ordinance). Courts will determine whether a regulatory taking occurred by the balancing private and community interests. Here courts will consider Penn Central Factors:

  1. The character of the regulation (degree of benefit to society vs burden on owner).
  2. The economic impact of the landowner, and
  3. The extent of interference with investment backed expectations.
    * Just compensation - fair market value to owner.
51
Q

VII. Equal Protection

1. IRAC EP

A

The equal protection clause of the 14th amendment (applicable to the states) and the 5th amendment (applicable to the federal government) prohibits the government form denying citizens equal protection under the laws. Equal protection issues arise when the government treats similarly situated individuals differently based on classifications among individuals.

52
Q
  1. State Action

Public Function Test

A

Look to performance of a state function, i.e., where a private person engages in activities or functions traditionally associated with sovereign governments which are almost exclusively governmental operations.

53
Q

Significant state involvement (nexus test)

A

Sufficient nexus between state-owned parking facility and private business (symbiotic relationship).

54
Q

De Jure/ De Facto - Discrimination Intentional/Unintentional

A

Generally, applies to race/national origin and gender classification Question - Which standard of review applies?

55
Q
  1. De Jure (by law)
A

A. Purpose was to discriminate
B. As applied
C. By Terms/On its face
D. State must justify through strict scrutiny for face and national origin and intermediate scrutiny for gender.

56
Q
  1. De Facto (Facially Neutral) Washington v. Davis
A

A. Racially neutral by its terms-discriminatory in effect
B. State may justify through rational basis
C. Mere disproportionate impact not sufficient to show intentional discrimination.
D. If legislative motive was to intentionally discriminate against minorities, then de jure (strict scrutiny).

57
Q

Classify Discrimination

a. Non Suspect/Non-Fundamental - Rational Basis - Test:

A

Is governmental law/regulation rationally related to a legitimate or permissible governmental objective? Burden: On individual challenging. Include age, wealth, handicap, elderly, nonresidents, non-fundamental rights.

58
Q

b. Quasi-Suspect - Intermediate Scrutiny - Test:

A

Governmental law/regulation must be substantially related to an important governmental objective? Burden: Arguably on government. Include illegitimacy, gender, illegal aliens

59
Q

C. Suspect/Fundamental Right - Strict Scrutiny - Test:

A

Suspect classification/burden on fundamental rights must be necessary to promote a compelling state interest when there is no less burdensome, alternative means to accomplish the state interest? The burden on the government. Include race, alienage, and national origin.
5. Irrebuttable Presumptions (right to hearing/Procedural due process)

60
Q

Speech/Association

1. IRAC 1st Amendment - State Action

A

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances.

The first amendment applies to states via the 14th Amendment (State Action).

61
Q
  1. Unprotected Speech
A
  1. Advocacy of imminent unlawful action likely to produce such action.
  2. Fighting words
  3. Obscenity
  4. Defamation
  5. Untruthful or misleading advertising
62
Q

Freedom of Association

A

The government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups. The right is not absolute. Infringements of the right must be justified by a compelling state interest, unrelated to the suppression of ideas, and must be the least restrictive means of protecting the government interest involved.

63
Q
  1. Content - Neutral Regulation - The issue is whether the regulation is unrelated to the message being conveyed?
A

Content - Neutral speech regulations are subject to intermediate scrutiny; they will be upheld if the government can show that:

  1. The regulation furthers an important or substantial governmental interest unrelated to the suppression of speech, and
  2. The regulation does not burden substantially more speech than necessary to further those interests.
64
Q

Symbolic Conduct - Is conduct undertaken to communicate an idea?
Test:

A

a. Government regulation is sufficiently justified if it is within the constitutional power of the government.
b. If it furthers an important or substantial governmental interest.
c. If the governmental interest is unrelated to the suppression of free expression; and
d. If the incidental restriction on the alleged First Amendment is no greater than is essential to the furtherance of that interest.

65
Q
  1. Content-Based Regulation

a. Unprotected Speech?

A

It is presumptively unconstitutional for the government to place burdens on speech because of its content. To justify such differential treatment of speech, the government must show that the regulation is necessary to serve compelling state interests and is narrowly drawn to achieve that end.

66
Q

Criminal Advocacy

A

The issue is whether speech advocates imminent illegal action including a breach of the peace and is likely to cause illegal activity.

67
Q

Group Association

A

Look for a group engaged in subversive activity.

68
Q

Fighting Words

A

Words that by their utterance inflict injury or tend to incite an immediate breach of the peace to whom individually they are addressed.

69
Q

Commercial Speech

A

Protected as long as not false/illegal as the state has a substantial interest in regulation.

70
Q

Obscenity - unprotected speech if constitutionally obscene.

A

a. Material must appeal to an average community member to prurient interest (dominant theme shameful/morbid).
b. Material must be patently offensive by applying contemporary community standards; and
1. Beware of overbreadth
c. The Material must lack serious literary, artistic, political, and scientific value.

71
Q
  1. Speech/Association Public Places
A

a. Public forum - streets, sidewalks, and parks.
b. Limited/Designated Public Forum - public property not traditionally or by government designation opened to the general public.
Designated Public Forums - public property opened to the public.

72
Q

Tests: Traditional and Designated Forums - Time, Place, and Manner regulations.

A

Limited public forums may be reasonably regulated, but the regulation must be viewpoint neutral and not intended to suppress expression. The regulation may draw distinctions based on the type of subject or the speaker’s status as long as the distinction is reasonable in light of the property’s purpose.

73
Q

Non-Public Forum

A

Public property is not open to the public for free expression. Test: regulation must be viewpoint neutral and be reasonably related to a legitimate governmental purpose.

74
Q

Time/Place/Manner Restrictions

A

The state has a legitimate interest in regulating time/place/manner as long as standards are specifically (health, safety, morals) and unrelated to the content of expression. Issue: whether state law furthers important interests unrelated to the message being conveyed.
a. Is regulation content-neutral
b. Is regulation narrowly tailored
c. Serves a significant government interest? And
d. Leaves open ample alternative forums of the channel of communication for protected expression.
Private Property - no free speech protections.

75
Q
  1. Issues That Effect Speech/Association

Prior Restraint

A

Any government order which prohibits speech before its publication (injunction).

  1. Rarely upheld as it is a drastic restriction on free speech.
  2. Government will have to carry a heavy burden to uphold prior restraint. Order must be narrowly tailored and further significant governmental interests.
76
Q

Overbreadth

A

A regulation of speech is unconstitutionally overbroad if it regulates a substantial amount of constitutionally protected expression.

*Overbreadth/Vagueness extremely testable areas on examination statute can be vague without being overbroad and vice versa.

77
Q

Vagueness

A

Law is facially invalid if persons of “common intelligence must necessarily guess at its meaning and differ as to its application.”

*Overbreadth/Vagueness extremely testable areas on examination statute can be vague without being overbroad and vice versa.

78
Q

Unfettered Discretion by Local Official

A

Administrators may not exercise “unfettered discretion” to permit or restrict speech.

This rule aims to ensure that governments will not covertly amplify their preferred viewpoints while silencing opinions that meet with official disapproval.

79
Q

First Amendment Establishment Clause - PEE - Religion

A

The government will neither aid nor formally establish religion Constitution requires a wall of separation between church/state.

Under the Lemon test, governmental action that benefits religion does not violate the establishment clause if:

  1. Purpose Secular and
  2. Effect neutral - neither advances nor inhibits religion (neutral)
  3. Excessive entanglement with religion.
80
Q

Free Exercise Clause

  1. Belief or
  2. Conduct
A

Religious Belief - the freedom to believe in any religion or none is protected and cannot be restricted by law. The government may not deny benefits or impose burdens based on religious beliefs.

81
Q

Religious Conduct

A

Religious conduct is not protected. Generally, laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that impact religious conduct are subject to the rational basis test.

82
Q

Targeted Interference with Practice or Belief

A

When the government purposely targets conduct because it is religiously motivated or displays religious beliefs, it is valid under strict scrutiny if necessary and the least restrictive means to achieve a compelling government interest.

83
Q

Neutral Interference with Practice

A

Neutral laws of general applicability that have the incidental effect of interfering with one’s ability to engage in religious practices are subject to the rational basis test in that the law must be rationally related to a legitimate government interest.

84
Q

Unintentional Interference

A

Free exercise rights do not include the ability to require the Government itself to behave and conduct its business in ways that the individual believes will further his or her spiritual development or that of his or her family.

85
Q

Procedure

A
  1. Case/Controversies
  2. Judicial Restraint
    * Standing
    * Mootness
    * Ripeness
86
Q

Commerce Clause

A
  1. Article 1 Sec/8
  2. Regulate Channels of IC
  3. National/Cumulative EE (Reg I & PT IC)
  4. Regulate Activities Substantially Effect IC (AE) Lopez Limitation
  5. Modernly Broad Power
  6. Argue Facts
  7. Fed - N/P Clause
  8. State - 10th Amendment
  9. New York v. U.S.
87
Q

Dormant Commerce Clause

A
  1. Article 1 Sec/8 Concurrent Power/10th Amendment
  2. Facial Discrimination
    a. Exceptions?
  3. Balance Burden on IC
  4. Alternative Means?
88
Q

Preemption Doctrine

A
  1. Federal Power
  2. Preemption
    a.Expressed
    b. Implied
  3. Conflict Preemption
  4. Occupy Field
  5. State Law Impedes Federal Objective
  6. Effect
  7. Feds - Minimum
    Standard/States Higher Standard
89
Q

Due Process

A
  1. Substantive
    a. Life/Liberty/Property Interest
    b. Economic/Social Regulation
    c. Rational Basis
    d. Fundamental Right
    e. Compelling Interest
  2. Procedural
    a. Life/Liberty/Property Interest
    b. Notice/Opportunity to be Heard
    c. Balance Factors
90
Q

Eminent Domain

A
  1. Taking - Total v. Partial
  2. Regulation? Zoning?
  3. Just compensation
    Zoning
  4. 10th Amendment
  5. Cumulative/Non-Cumulative Ordinance
  6. Comp Plan/Spot Zoning
  7. Variance
  8. Constitutional Attacks
  9. Modernly - Assume Risk
91
Q

Equal Protection

A
  1. IRAC EP
  2. State Action
  3. De Jure/De Facto
  4. Classify Discrimination
    a. Non-Suspect/Non-Fundamental-RB
    b. Quasi-Suspect-SRIGO
    c. Suspect/Fundamental Right- SS-CSI
  5. Irrebuttable Presumptions
    * Over/Under-Inclusive
92
Q

Speech/Association

A
  1. IRAC 1st Amendment-State Action
  2. Content-Neutral Regulation
  3. Content - Based Regulation
    a. Unprotected Speech?
  4. Speech/Association Public Places
    a. Public Forum
    b. Limited/Designated Public Forum
    c. Non-Public Forum
    d. Private Property
  5. Issues That Effect Speech/Association
    * Prior Restraint
    * Overbreadth
    * Vagueness
    * Unfettered Discretion by Local Official
93
Q

Religion

Establishment Clause - PEE

A
  1. Purpose Secular
  2. Effect Neutral
  3. Excessive Entanglement
94
Q

Free Exercise Clause

A
  1. Targeted Interference with Practice or Belief - CSI - SS
  2. Neutral Interference with Practice - Look for Government Coercion
    a. Conduct - No Exemption
  3. Exceptions:
    a. unemployment compensation
    b. hybrid cases - the right of amish to educate children
  4. Unintentional interference

Cal Bar (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions