Constitutional Law

Question 1

Who regulates foreign commerce?

Answer 1

• Power to regulate foreign commerce lies exclusively with Congress.
• State laws that favor US products over foreign products may be outside the state’s scope of power

Question 2

obscenity

Answer 2

Obscenity is unprotected speech.

Speech is obscene if:

1. appeals to the prurient interest in sex (by community standards)
2. is patently offensive (by community standards)
3. and does not have serious literary, artistic, political, or scientific value (by national reasonable person standards).

Question 3

When can a judge close pretrial and trial proceedings from the public?

Answer 3

In crim cases, trials and pretrial proceedings can be closed only if closure is

(1)** necessary** to preserve an **overriding interest **

(2) and the closure order is narrowly tailored to serve the overriding interest.

Justices suggest that same standard applies to civil cases.

Question 4

Establishment Clause test

Answer 4

Establishment Clause prohibits gov. actions and law that favor one religion over another.

If the law is NOT neutral, strict scrutiny will apply. Gov. must show the law is narrowly tailored to serve a compelling state interest.

If the law is neutral then, it will only be upheld if it is also consistent with historical practices + understanding of the Framer’s.

Question 5

Which ammendment precluded the federal government from having jurisdiction over a suit by a private party to recover damages from a state?

Answer 5

ELEVENTH A

Question 6

DCC

Answer 6

A state or local gov. can adopt laws that affect interstate commerce if Congress has not enacted laws on the subject.

If the state law is not discriminatory, the burden it places on interstate commerce must be substantially outweighed by a LEGITIMATE local interest.

If the state law is discriminatory, it will only be upheld if it is (1) necessary to achieve a (2) important gov. interest (3) and there is no non-discriminatory alternative.

EXCEPTIONS:
1. The law may be valid if the MARKET PARTICIPANT exception applies– the state may prefer its own citizens in recieving gov. program benefits or in dealing with gov. owned businesses.

2. The law may be valid if Congress Approves it, even though it would otherwise violate the DCC; however, it cannot violate other constituional provison.

Question 7

Privleges AND Immunities Clause

Answer 7

P AND I clause prohibits dicrim by state against NONRESIDENTS of the state concerning COMMERCIAL activities and **FUNDAMENTAL RIGHTS. **

If a law does discriminate, then it will only be valid if it is NECESSARY to achieve and IMPORTANT** gov. purpose + there are no less restrictive means.

Corps and aliens not protected.

Question 8

11th A

Answer 8

11th precludes the federal government from having jurisdiction over a suit by a private party to recover damages from a state.

The state has immunity from suit UNLESS it

1. agrees to be sued
2. waives immunity
3. Congress removes immunity for claims arising from 14th A to prevent discrimination.

Question 9

Standing

DO THIS CARD WITH BARBRI ESSAYS LOOK AT THEM

Answer 9

To have standing, a P must show injury, causation, and redressability.

Question 10

What cases can SCOTUS never review?

Answer 10

SCOTUS cannot review cases where judgement based wholly on a state law ground, wholly indpendent of federal law.

Question 11

Can state courts hear cases based on federal law if a federal court has not yet interpreted the federal law?

Answer 11

Yes.

State courts may hear cases based on federal law always, unless Congress has placed a restriction.

Question 12

In a Procedural Due Process claim, who has the intial burden to show the P had a constitutionally protected property or entitlement?

Answer 12

Plaintiff

Question 13

zoning laws- adult entertainment

Answer 13

Although its not obscenity, the gov. can pass zoning laws that limit the location of adult entertainement/nude dancing to REDUCE SECONDARY EFFECTS (like property value dimunition, exposure to children, crime, etc).

Question 14

when is a state tax valid under the Commerce Clause?

Answer 14

A tax is valid under the Commerce Clause if:

1. the tax does not discriminate against interstate commerce;
2. there is a substantial nexus between the activity taxed and the taxing state;
3. the tax is fairly apportioned; and
4. the tax fairly relates to services or benefits provided by the state.

Question 15

13th A

Answer 15

13th A allows Congress to ban discrimination against AFRICAN AMERICANS in both gov. action AND PRIVATE COMMERCIAL actions