Constitutional Law Flashcards
Lemon Test
A court will apply the elements of the Lemon Test when legislation or a government program is neutral on its face regarding religious freedoms —
(1) The statute must have a secular legislative purpose;
(2) The effect must neither advance nor inhibit religion; and
(3) The statute must not foster an excessive government entanglement with religion.
SEX = Secular purpose, Effect does not primarily advance nor inhibit religion, no Xcessive government entanglement.
Contract Clause
A private contract may only be modified by the legislature under its police power when necessary to serve an important and legitimate public interest, and the regulation is reasonable and narrowly tailored to promote that interest
In determining whether a contract may be modified, a court will consider the severity of the impairment and the importance of the public interest to be served.
Applies only to state legislation, not state judicial decisions or the federal government.
Comity Clause
Provides that the citizens of each state shall be entitled to all Privileges and Immunities of the citizens of other states.
One type of discrimination that has been upheld by courts includes a state statute requiring nonresidents to pay higher fees for recreational licenses than residents (not commercial).
Standing (Art. III)
Article III requires a person to show standing by demonstrating injury-in-fact, causation, and redressability.
Substantive Due Process
Substantive rights that are not specifically referenced in the Constitution but are protected because they are “implicit in the concept of ordered liberty” and are deeply rooted in our history and tradition.
Key terms — “implicit in the concepts of ordered liberty” and “deeply rooted in history and tradition.”
Content-Based Discrimination
In general, the government may not regulate speech based on its content. However, it may do so in rare cases when it is necessary to serve a compelling interest, AND is narrowly drawn to serve that interest.
Interstate Commerce
Congress has the power to regulate the channels and instrumentalities of interstate commerce, persons and things in interstate commerce, and/or anything that has a “substantial effect” on interstate commerce.
Basically, it can regulate anything economic or noneconomic that “substantially affects” interstate commerce, even if it is purely intrastate.
Anti-Comandeering Doctrine
Congress cannot “commandeer” states and force states to enact laws, even if the states is happy to comply. Congress will have to either regulate directly, if within their power, or regulate indirectly by threatening to take away funding if the state does not adopt a law, under their spending power.
Dormant/Negative Commerce Clause
States lack the power to discriminate against interstate commerce or unreasonably burden it.
Law discriminates on its face — invalid, unless the state can show that the law was necessary to serve a compelling state interests, and that there is no reasonable, nondiscriminatory alternative. (Strict scrutiny)
Nondiscriminatory on its face, but still burdens interstate commerce — valid, but only if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.
Subject to the Market-Participant Doctrine exception.
Market-Participant Doctrine Exception to the Dormant Commerce Clause
If the state is acting as a market participant or business, rather than a regulator, it is allowed to favor its own residents.
Strict Scrutiny for Equal Protection/Substantive Due Process
The government has the burden of establishing that a discriminatory law or program is narrowly tailored and necessary to achieve a compelling interest.
Applies to all fundamental rights (marriage, family, voting, travel, etc.), race/ethnicity/national origin discrimination, and alienage (suspect class).
Intermediate Scrutiny for Equal Protection
The government has the burden of proving that a classification if substantially related to an important government interest.
Applies to classification regarding gender and illegitimacy (quasi-suspect class).
Rational Basis
The plaintiff has the burden of proving that the law is not rationally related to a legitimate government interest.
Applies to every other classification (poverty, wealth, age, education, disability, sexual orientation, etc.)
First Amendment Application to the States
“The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.”
BEGIN ALL FIRST AMENDMENT ESSAYS WITH THIS SENTENCE.
Unprotected Speech
A law regulating unprotected speech needs to only pass rational basis scrutiny since speech is not protected by the First Amendment.
Unprotected speech include:
- Inciting immediate lawless/violent behavior (must be directed to produce imminent lawless action that is likely to actually occur);
- Fighting words;
- True threats or words as conduct;
- Obscene speech;
- Hostile audience speech;
- Defamatory speech.
Test for Obscene Speech
Examines whether the speech
1. Appeals to a prurient interest (applying local contemporary community standards),
2. Depicts or describes sexual conduct in a patently offensive way, and
3. Lacks serious literary, artistic, political, or scientific value (applying a national reasonable person standard).
Regulations of Commercial Speech
Commercial speech is protected by the First Amendment as long as it is lawful and not misleading. Government regulation of commercial speech must meet the Central Hudson Test, which states that:
- The speech must be lawful and not misleading;
- The statute must serve a substantial governmental interest,
- The statutes must directly advance that interest, and
- The statute must be narrowly tailored.
Regulations of Sexual or Indecent Speech
Sexual or indecent speech is protected by the First Amendment, however it can be regulated on the basis of its secondary effects.
The law/regulation must serve a substantial government interest and leave open reasonable alternative channels of communication.
Time-Place-or-Manner Restrictions in Public Forums
A restriction in a public forum, i.e., one historically associated with free speech rights (streets, sidewalks, parks), or a designated public forum (public schools, etc.) must be content-neutral, narrowly tailored, serve an important governmental interest, and leave open alternative channels of communication.
CAIN —
(C)ontent-neutral, (A)lternative channels of communication, (I)mportant government interest served, and (N)arrowly tailored to serve that interest.
Time-Place-or-Manner Restrictions in Nonpublic Forums
Restrictions in nonpublic forums (airports, government workplaces, etc.) must be viewpoint neutral and reasonably related to a legitimate government interest.
Think — Kind of like rational basis.
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.
Eminent Domain/Takings
Neither the federal government nor the state may take private property for public use without just compensation.
Arises from the 5th Amendment and is applied to the states through the 14th Amendment.
“Public Use” is defined broadly and may include giving land to a private party for commercial development.
“Taking” For Eminent Domain Purposes
A taking by the government may be physical or regulatory.
A physical taking occurs when there is a permanent physical occupation. When a regulation deprives an owner of all economically beneficial use of their property it is a taking.
An exaction/regulatory taking 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”.
11th Amendment
The 11th Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover money damages from a state (aka, provides sovereign immunity).
Exceptions include if a federal statute abrogated immunity for enforcement of the 13th, 14th, or 15th Amendments, suits for an injunction, or state consent or waiver.
Establishment Clause
“The Establishment Clause looks to maintain the separation of church and state and prevents state actions that have the effect of advancing religion or favoring one religion over the other.”
Uses the Lemon Test.
Pardons
The president can only pardon federal crimes (state crimes must get clemency from the governor).
Pardons cannot undo an impeachment, because impeachment is not a crime.
Entanglement/”Significant State Involvement Theory”
When a private party’s action is closely encouraged and supported by the state, the private party’s action can be considered a government action.
Public-Function Exception
Some jobs/activities may be withheld from resident aliens without being discriminatory when they are performing some public functions, such as —
1. Police officers;
2. Government officials; and
3. Public school teachers.
Congress may place a condition on the receipt of federal funds by a state if:
- The spending serves the general welfare;
- The condition is unambiguous and related to the program;
- The state is not required to undertake unconstitutional action; and
- The amount is not so much that the state is “coerced” into accepting the funds.
Source of Congress’s Power to Legislate
(“PEN”)
Enumerated Powers (Controlling war and money);
Enabling clauses of the 13th, 14th, and 15th, Amendments;
Necessary and Proper Clause (empowering Congress to legislate in regards to their enumerated powers only).
Overbreadth
When a state haw the power to regulate an area dealing with free speech, it must do so in a way that is narrow and specific, and must not be overbroad as to have a “chilling effect” on protected speech.
Delegation of Legislative Power
Congress can create an executive agency (i.e., the FDA) and give that agency some legislative power that will prevail over inconsistent state law.
However, there must be some “intelligible principle” that guides the agency.
