Constitutional Law Flashcards
Key principle #1: Congress has the power to regulate interstate commerce.
When states regulate interstate commerce in the absence of congressional regulation, one of two tests is used to determine if the state law is constitutional.
If the law is “discriminatory, it is usually unconstitutional under a strict scrutiny standard.”
If it is merely a “burden” on interstate commerce, it is more likely to be constitutional.
Congress can regulate the channels and instrumentalities of interstate commerce, persons and things in
interstate commerce, or anything that has a “substantial effect” on interstate commerce—meaning, it can
regulate anything economic or anything noneconomic that “substantially affects” interstate commerce
(even if it is purely “intrastate”—i.e., within a state).
- Congress cannot, however, “commandeer” states and force states to enforce federal laws.
Congress will either have to regulate directly (if within its commerce power) or regulate indirectly by threatening to
take away funding if the state does not adopt a law (under Congress’s spending power).
Dormant commerce clause :
States lack the power to discriminate against interstate commerce or unreasonably burden it. (This is
known as the Dormant Commerce Clause or negative Commerce Clause.)
If a law discriminates against interstate commerce, it is invalid unless the state can show that the law was necessary to serve a compelling state interest and there is no reasonable nondiscriminatory alternative (strict scrutiny).
***A state law that discriminates against interstate commerce is usually unconstitutional.
If a state law is nondiscriminatory on its face (i.e., it imposes the same burden on those in-state and out-of-state) but it still burdens interstate commerce, it is valid only if it serves an important
state interest and does not impose an unreasonable burden on interstate commerce.
***A state
law that merely burdens interstate commerce is more likely to be constitutional.
Exception to the dormant commerce clause :
Market participant doctrine :
A tested exception to the Dormant Commerce Clause is the market-participant doctrine (i.e., 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 residents.
Key principle #2: Congress’s powers are limited to those given to it by the Constitution. It has the power to
enforce constitutional rights under its enforcement power found in the Thirteenth, Fourteenth, and Fifteenth
Amendments, but it does not have the power to expand rights.
Key principle #3: state action is required in order to sue under the First, Fourteenth, or Fifteenth Amendment.
General rule: If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech,
due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government
actor or action “fairly attributable to the government.” (One cannot sue a business or a private individual
for, say, violating one’s free speech rights under the First Amendment.)
- State action: state action is present when a state passes a law, when a state permits its officials to take
action, when a private actor is performing a traditional and exclusive government function (e.g.,
conducting elections, or running a company town—this is pretty narrow), or when private action is
closely controlled by the state.
Key principle #4: the Equal Protection Clause has three standards to be aware of.
Strict scrutiny: The government must prove that the law is narrowly tailored (necessary) to achieve a
compelling interest. (The government usually loses under a strict scrutiny analysis.) Strict scrutiny applies
to fundamental rights, racial or ethnic discrimination, and alienage when the classification is made by the
state (though there are exceptions for alienage where strict scrutiny does not apply—e.g., if the public-
function doctrine applies or if the law regulates illegal aliens).
- Intermediate scrutiny: The government must prove the classification is substantially related to an
important government interest. This applies to classifications regarding gender and illegitimacy. (July
2011) - Rational basis: The plaintiff must prove that the law is not rationally related to a legitimate government
interest. (The plaintiff usually loses.) This applies to every other classification—poverty, wealth, age,
education, etc.
Key principle #5: Freedom of speech is heavily tested in Constitutional Law MEE questions! A few times,
freedom of speech has been tested in the context of a trespass or a criminal claim.
Start your essay as follows: “The First Amendment applies to the states through the Due Process Clause
of the Fourteenth Amendment.” Remember, there must be a government regulation of private speech.
Test :
Strict scrutiny means that the government must show that the regulation is necessary to serve a
compelling state interest and is narrowly tailored to that end. The government faces strict scrutiny if it
engages in content-based discrimination (forbidding communication about certain ideas) or viewpoint- based discrimination (forbidding communication about a certain viewpoint).
Symbolic speech: a law which regulates conduct and places an incidental burden on speech is
constitutional if the regulation is narrowly tailored to an important governmental interest and is
unrelated to the suppression of the speech.
Unprotected speech: A law regulating unprotected speech needs to pass rational basis scrutiny.
The following categories of speech are not protected under the First Amendment:
* Speech inciting immediate lawless or violent behavior (“clear and present danger”):
speech that is directed at inciting and likely to incite imminent lawlessness. (July 2009)
- Fighting words: words likely to incite an immediate violent reaction. (July 2009)
- True threats or words as conduct: defamation, harassment, and other forms of “words
as conduct.” (July 2009) - Obscene speech: The test for obscenity examines whether the speech appeals to a
prurient interest in sex, whether it depicts or describes sexual conduct in a patently
offensive way, and whether it lacks serious literary, artistic, political, or scientific value.
Obscene speech is not usually tested.
Less protected speech :
Some classes of speech are protected—just a little less:
Commercial speech: the law must meet the Central Hudson test, which states that (1) the
speech must be lawful and not misleading, (2) the statute must serve a substantial governmental
interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly
tailored.
Sexual or indecent speech: the law must serve a substantial governmental interest and leave
open reasonable alternative channels of communication.
Time-place-or-manner restriction: A restriction in a public forum—i.e., one historically
associated with free speech rights (e.g., streets, sidewalks, parks), or a designated public forum
(e.g., a school that opens its doors to after-school activities) must be content neutral, narrowly
tailored to serve an important governmental interest, and leave open alternative channels of
communication. A restriction in a nonpublic forum (e.g., airports, government workplaces, etc.)
must be viewpoint neutral and reasonably related to a legitimate governmental interest.
Speech :
Speech in public schools: students have free speech rights; however, speech in schools may be regulated
so long as the regulations are reasonably related to legitimate pedagogical (educational) concerns. (Feb
2013)
- Principles to keep in mind: There is a presumption against a prior restraint (stopping speech before it
happens). If a law is overbroad (prohibits substantially more expression than necessary) or vague (a
reasonable person could not tell what is prohibited by the law), it is unconstitutional. (July 2009) - Rights of the press: The press has no greater free speech rights than anyone else. The press may publish
information that is lawfully obtained and that is a matter of public concern.
Key principle #6: Eminent domain. Neither the federal government nor the state may take private property for
public use without just compensation. This arises from the Fifth Amendment and is applied to the states through
the Fourteenth Amendment.
A taking can be physical or regulatory (e.g., an exaction). An exaction exists when the government enacts
a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop
the land. These are takings unless the government can show a legitimate government interest and “rough
proportionality” (i.e., the adverse impact of the proposed development is roughly proportional to the loss
suffered by the property owner).
Key principle #7: The Eleventh Amendment precludes a federal court from exercising jurisdiction over a suit by a
private party seeking to recover damages from the state. There are exceptions to this (e.g., if a federal statute
properly abrogates immunity).
