Constitutional Law Flashcards
State Soverign Immunity (11th Amendment)
Priority: High
Under the 11th Amendment, States are immune from suit from citizens unless:
1. they consent to the suit,
2. the suit pertains to laws adopted under section 5 of the 14th Amendment; OR
3. suit seeks injunctive or monetary relief from a state official
- Only applies to states, not local towns/cities/counties.
Negative Commerce Clause
Priority: High
A state or local government may regulate interstate commerce as long as Congress has not enacted laws on the subject matter, unless:
1. State is discriminating against out-of-state commerce
2. State is placing an undue burden on interstate commerce
A law is considered discriminatory if discriminates on its face, or has the impact of factoring in-state commerce over out-of-state commerce. All discriminatory laws are unconsitutional unless they are narrowly tailored to achieve a legitimate, non-protectionist state objective or the state is a market participant.
A law is considered unduly burdensome when the burden is clearly excessive to the benefits.
- States can discriminate to buy only products made in their own state.
Government Action
Priority: High
Consitutional violations only apply to government action:
1. action is a traditional public function using powers traditionally and excusively reserved for the government; OR
2. where significant government involvement exists to authorize, encourage, or facilitiate private conduct that is unconsititional
- Private schools have been deemed to be private action, even when funded substantially with government funds.
Equal Protection Analysis
5th and 14th Amendments
The government is prohibited from denying its citizens equal protection of the laws. A law can be discriminatory in one of three ways:
1. on its face
2. in its application
3. because of its motive creating a disperate impact
Suspect Class (Strict Scrutiny) = race, national origin, or alienage)
Fundamental Right (Strict Scrutiny) = vote, religion, access to courts, travel, etc.
Quasi-Suspect Class (Intermediate) = gender/sex, non-marital children, sexual orientation)
Other Classes (Rational Basis) = age, disability, wealth, undocumented aliens
Strict Scrutiny
Priority: High
The strict scrutiny test requires the government to prove that a law/classification is necessary to serve a compelling government interest.
Intermediate Review
Priority: High
The intermediate review test requires the government to prove that law/classification is substantially related to an important government interest.
Rational Basis Review
Priority: High
The plaintiff must show that the law/classification is not rationally related to any legitimate government interest.
Takings
Priority: High
The government may take private property for public use if it provides just compensation (fair market value at the time of the taking). A public use is any use rationally related to a concievable public purpose, even if that purpose is to provide the land to private developers for economic rehabilitation. A taking can take two forms:
1. Possessory takings = the government physically takes or permanently occupies any portion of your property.
2. Regulatory takings = when the government regulation deprives the owner of all economically viable use or eliminates a reasonable investment backed expectaiton.
Freedom of Speech: Public Forums
Priority: High
Citizens have the right to freedom of speech and expressive activities that constitute speech while in a public forum. A public forum is any place that has traditionally been avalaible to the public for speech (i.e. sidewalks, parks, and streets). Governments may regulate the content of this speech if they satisfy strict scrutiny. Governments may regulate the time, place, and manner of this speech by satisfying intermediate review.
- If the government has designated a non-traditional forum as a public forum, then they can withdraw that designation at any time.
Freedom of Speech: Non-public Forums
Priority: High
Citizens have the right to freedom of speech and expressive activities that constitute speech while in a non-public forum. A non-public forum is one that has traditionally been limited (schools, jails, military bases, inside courthouses, airports). However, the government may create viewpoint neutral speech in non-public forums so long as the regulation is neutral.
- Limited public forums are those designated to only be open to certian groups or topics.
- A person does not have the right to enter private property to deliver speech
