Constitutional Law Flashcards
Takings Clause
the 5th amendment of the Constitution is applicable to the States through the Due Process Clause of the 14th amendment
the 5th amendment provides that the government may not take private property for public use without just compensation.
Analysis:
(1) whether the state action was a taking
(2) whether the taking was for a public purpose
(3) whether the owner is entitled to just compensation
Equal Protection Clause
prohibits states from unreasonable discrimination
Step 1: is there a suspect class? (race, national origin, alienage, gender (quasi))
Step 2: is there a fundamental right?
Step 3: is the law facially discriminatory or does it have discriminatory intent?
IF YES –> apply strict scrutiny (or intermediate scrutiny for gender)
If NO –> apply rational basis test
(economic is always rational, presumption of constitutionality)
Separation of Church and State
generally, a state is entitled to regulate conduct even if there is an incidental effect of religious practices
Free Exercise Clause
Government cannot punish conduct just because it is religious/displays a religious belief, and cannot punish someone based on their religious belief
Step 1: is there a sincerely held religious belief?
Step 2: is the belief burdened by regulations?
Step 3: if yes, state must show both:
(a) regulation is narrowly tailored to a compelling state interest (strict scrutiny), and
(b) fulfillment of the state’s goal would be substantially hindered without regulation
Establishment Clause
government must remain neutral in religious matters
government cannot directly/indirectly coerce individuals to exercise or refrain from exercising religious
government cannot have sect preference
government cannot discriminate for/against religious organizations when it comes to benefits/use of state property
Establishment Clause: Schools
school sponsored religious activities violate establishment clause
Establishment Clause: Test
1) is the regulation neutral as to religion/sect preference?
2) what was the founders’ understanding and does it accord with history?
Commerce Clause
congress is specifically authorized by the constitution to regulate interstate commerce
Dormant Commerce Clause
states can regulate any aspect not regulated by congress as long as it does not intend or cause discrimination against out of state competition to benefit local economic interests and is not unduly burdensome
DCC: Test
Darla Is Really Ugly
Discriminatory intent or effect? Facial/intentional discrimination automatically triggers heightened scrutiny (invalid unless it furthers important noneconomic state interest + no reasonable alternative is available)
Nondiscriminatory/no intent (invalid only if burden on interstate commerce outweighs the promotion of legitimate local interests)
(necessary for) Important state interest?
Reasonable alternatives?
Unduly burden interstate commerce? (purpose of law, substantial burden, does the burden outweigh a legitimate local interest?)
DCC: Market Participant Exception
state can favor its own citizens when acting as a market participant by buying/selling goods, hiring labor, giving subsidies
state can discriminate if traditional government function and likely motivated by legitimate objectives (ex: waste disposal)
Strict Scrutiny
narrowly tailored to a compelling state interest
Intermediate Scrutiny
substantially related to an important state interest
Rational Basis Test
rationally related to a legitimate government interest
Intermediate Scrutiny
substantially related to an important state interest
Rational Basis Test
rationally related to a legitimate government interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Privileges and Immunities Clause
prohibits states from intentionally discriminating against nonresidents in commercial activity without substantial justification
must be for a PROTECTIONIST purpose
Intermediate Scrutiny
substantially related to an important state interest
Rational Basis Test
rationally related to a legitimate government interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Privileges and Immunities Clause: Test
Step 1: is the party a citizen of another state? (corp is not, alien is not, does not apply to citizens of state that issued the reg)
Step 2: does the statute burden a fundamental right? (right to travel, right to conduct business/carry on a trade, own property)
Step 3: is the statute intentionally protectionist?
Step 4: is there substantial justification for the differential treatment? (nonresident caused or contributed to problem state is trying to solve; no less restrictive means; no legitimate state interests)
Rational Basis Test
rationally related to a legitimate government interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Intermediate Scrutiny
substantially related to an important state interest
Intermediate Scrutiny
substantially related to an important state interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Rational Basis Test
rationally related to a legitimate government interest
Substantive Due Process
due process clause of the 14th amendment prohibits states from depriving a person from life, liberty, or property without due process of law
laws must be reasonable and not arbitrary
determination of whether a law is reasonable depends on implication of a fundamental right
Substantive Due Process: Test
Step 1: does it implicate a suspect class or a fundamental right?
if yes –> strict scrutiny
if no –> rational basis (commercial activity/economic always rational basis)
Procedural Due Process
a person whose property interest is affected by state action is entitled to notice and an opportunity to be heard before a neutral decision-maker (before deprivation of stuff by state, notice and a meaningful opportunity to be heard must be given)
Procedural Due Process: Test
Step 1: was there a state actor?
Step 2: is there a protected liberty interest or property interest? (must be “vested”)
Step 3: was there adequate notice? Was there a meaningful opportunity to be heard before a neutral decision-maker, tailored to the deprivation in question?
Step 4: how much process is due? (would procedure have reduced risk of deprivation, historical abuse of rights, what are common law safeguards)
Vagueness
under the Due Process Clause, laws must make clear what is prohibited, especially as applied to laws regulating speech
vague laws are in violation of the Due Process Clause
regulation is unconstitutional if it fails to provide:
reasonable notice of what is prohibited
minimal guidelines to discourage arbitrary and discriminatory enforcement
Takings Clause
Applies to states via 14th amendment and federal government via 10th amendment
Test:
1) private property taken or land use regulation?
physical occupation and denial of all/substantially all rights in land = taking
zoning ordinances usually not a taking
regulations that impair use of property if do not meet rational basis test
is adverse impact of regs roughly proportional to loss caused to property owner?
2) was the taking for a public purpose? (give deference to state, public purpose = rational basis test)
3) was there just compensation?
(paid from time use of property is denied)
Contracts Clause
states cannot pass laws that retroactively impair contractual rights
does NOT apply to federal (use substantive due process instead)
public v. private contracts
indirect consequences on private contracts does not matter, must “substantially impair”
public –> state cannot undo its own contracts
Contracts Clause
states cannot pass laws that retroactively impair contractual rights
does NOT apply to federal (use substantive due process instead)
public v. private contracts
indirect consequences on private contracts does not matter, must “substantially impair”
public –> state cannot undo its own contracts
Supremacy Clause
the constitution provides that federal law is supreme
state laws that are preempted by federal law are invalid
state laws may be preempted by federal law in two ways:
(1) express preemption
(2) implied preemption
(a) field preemption
(b) conflict preemption
THERE IS A PRESUMPTION AGAINST PREEMPTION
Field Preemption
scheme of federal regulation is so pervasive as to make reasonable that congress meant for there to be no reason for states to supplant it
Conflict Preemption
state policy may present a result inconsistent with the objective of the federal statute
Strict Scrutiny
narrowly tailored to a compelling state interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Strict Scrutiny
narrowly tailored to a compelling state interest
Intermediate Scrutiny
substantially related to an important state interest
Intermediate Scrutiny
substantially related to an important state interest
Intermediate Scrutiny
substantially related to an important state interest
Strict Scrutiny
narrowly tailored to a compelling state interest
use when facially discriminatory or discriminatory intent
Intermediate Scrutiny
substantially related to an important state interest
Rational Basis Test
rationally related to a legitimate state interest
presumption of constitutionality
use for economic regulations
Overbreadth
statute is unconstitutionally overbroad if it restricts protected speech as well as unprotected speech
first amendment
First Amendment: Free Speech
the first amendment is applicable to the states through the due process clause of the 14th amendment, which prohibits the government from abridging the freedom of speech
Free Speech: Test
1) does the regulation involve regulation of content or conduct of speech?
2) CONTENT: what kind of speech does the regulation involve? (commercial? gov’t employee? political? obscenity?)
3) CONDUCT: does the regulation involve symbolic speech, time/place manner, or a public forum?
4) is the regulation “prior restraint”?
What is “speech”?
speech is a broad concept that includes words, symbols (symbolic speech), and expressive conduct
must be expressing a message
What is “speech”?
speech is a broad concept that includes words, symbols (symbolic speech), and expressive conduct
must be expressing a message
Commercial Speech
protected by the first amendment so long as it is “truthful” and not deceptive
intermediate scrutiny for regs regulating commercial speech
Forum Rules
the extent to which government may regulate speech or expressive conduct on government property depends on whether the property involved is a public forum, a designated public form, a limited public forum, or a nonpublic forum
public forum: government property historically open for speech
Must be: content neutral AND strict scrutiny
limited public forum: government property used for other purposes, ex: football field
Must be: content neutral AND rational basis
nonpublic forum: private
Must be: content neutral AND rational basis
*SCHOOLS: may limit speech for a “legitimate pedagogical concern” (ex: social media distraction)
Political Speech
highest degree of protection under 1st amendment (PROTECTS FALSE POLITICAL SPEECH TOO)
government may not regulate political speech unless regulation meets strict scrutiny
Exception:
1) political speech advocating illegal or criminal acts, and
2) likely to incite or produce such action (how serious is conduct, influence of speaker, who is listening, where is speech occurring, aggravating circumstances)
think trump on jan 6
Political Speech
highest degree of protection under 1st amendment
government may not regulate political speech unless regulation meets strict scrutiny
Exception:
1) political speech advocating illegal or criminal acts, and
2) likely to incite or produce such action (how serious is conduct, influence of speaker, who is listening, where is speech occurring, aggravating circumstances)
think trump on jan 6
Speech by Public Employees
right of a public employee to speak must be balanced against the state’s interest in efficiently performing state functions
Test:
1) speech must relate to a matter of public concern (private speech is not protected in public workplace)
2) government must show that its interest in efficiently performing state functions outweighs the employee’s free speech rights
IF NOT –> 3
3) government can also justify by showing that a negative employment decision would have been reached anyone for reasons unrelated to speech (we would have fired them anyway!)
Obscenity
NOT protected by 1st amendment
Test:
1) average person applying contemporary community standards would find that, taken as a whole, it appeals to the prurient interest, and
2) work depicts in a patently offensive way, sexual conduct as specifically defined by state law
3) the work as a whole lacks serious artistic value
Prior Restraint
General Rule: government must wait until speech occurs before acting
heavy presumption AGAINST validity, need extreme circumstances (think spies in the newspaper)
Content Regulation
regulations forbidding communication of specific ideas are presumptively unconstitutional
Conduct Regulation
a court will uphold conduct regulation if it is:
1) within constitutional power of government
2) furthers important government interest
3) interest is unrelated to speech
4) regulation has an incidental burden on speech and no more than necessary
Symbolic Speech
conduct to communicate an idea enjoys some first amendment protections
must promote an important government interest
indirect impact on symbolic speech is permitted
Time/Place/Manner Restrictions
cannot be a thinly veiled content restriction
no unbridled discretion to disallow permits based on conduct (is the permit a pretense for content regulation?)
no greater than necessary to achieve stated government purpose
Vagueness
a statute is unconstitutionally vague if it restricts 1st amendment protection but fails to provide an ascertainable standard of acceptable conduct
Freedom of Association
1st amendment protects the right of people to freely assemble and petition the government for a redress of grievances
freedom of association does NOT apply to non-political association that lack a sufficient degree of privacy/intimacy (ex: right of teenagers to associate in a nightclub)
Free Exercise Clause
prohibits
Establishment Clause
is it coercive? if yes –> only permitted if strict scrutiny
if sect preference –> only permitted if strict scrutiny
if not coercive/sect pref –> is it religiously neutral?
if neutral –> valid
if not neutral –> history/founders’ understanding of establishment clause?
Anti-Commandeering; Federalism
10th amendment prohibits congress from adopting a statute that commandeers state officials by requiring that states regulate their own citizens
however - congress can regulate by prohibiting that states take certain acts (ex: prohibiting states from requiring sensitive information for drivers’ license applications)
“Adequate and Independent” State Grounds; Justiciability
Supreme Court will only hear a case from state court if the state court judgment turned on federal ground s
SCOTUS will refuse jurisdiction (not justiciable) if the case was decided on “adequate and independent” state grounds
Adequate = fully dispositive of case (ie: even if federal law was applied by state court, it wouldn’t change the outcome based on state law)
Independent = interpretation of state law by state court was not based on federal law
Standing/Mootness/Live Case or Controversy
standing and mootness must be met all stages of the “controversy”
live controversy must exist at all stages of review (exception: capable of repetition but evading review)
Standing
1) injury in fact
2) caused by defendant’s conduct
3) redressable by relief sought
Standing: Corporations/Organizations
standing to sue on behalf of members:
1) injury in fact to one or more members
2) injury is related to the organization’s purpose
3) neither the nature of the claim nor the relief requested requires participation of individual members
11th Amendment
federal courts are prohibited from hearing private parties’ and foreign governments’ claims against state governments
Exceptions:
1) suits against state officials
2) state has consented (waiver of 11th amendment immunity)
3) plaintiff is United States or another state
4) congres
Displays of Religious Symbols on Public Property
longstanding monuments are presumed constitutional because they likely have historical significance and their original purpose may be unclear
establishment clause
State Action
“state” includes government agencies and officials acting under color of state law
can also include private individuals/organizations that:
1) perform exclusive public functions (running a town/running for election are the only two); or
2) have significant state involvement in their activities
significant involvement = state AFFIRMATIVELY facilities, encourages, or authorizes acts of discrimination
Fundamental Rights
PRIVACY:
Marriage
procreation
use of contraceptives
obscene reading material
rights of parents
right to education
keeping extended family together
intimate sexual conduct
collection and distribution of personal data
VOTE
TRAVEL
BEAR ARMS (self defense)
Campaign Contributions
can contribute as much as you want on your own campaign
can spend as much as you want on someone else’s campaign provided you don’t coordinate with them
