Constitutional Law

Question 1

Takings Clause

Answer 1

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

Question 2

Equal Protection Clause

Answer 2

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)

Question 3

Separation of Church and State

Answer 3

generally, a state is entitled to regulate conduct even if there is an incidental effect of religious practices

Question 4

Free Exercise Clause

Answer 4

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

Question 5

Establishment Clause

Answer 5

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

Question 6

Establishment Clause: Schools

Answer 6

school sponsored religious activities violate establishment clause

Question 7

Establishment Clause: Test

Answer 7

1) is the regulation neutral as to religion/sect preference?

2) what was the founders’ understanding and does it accord with history?

Question 8

Commerce Clause

Answer 8

congress is specifically authorized by the constitution to regulate interstate commerce

Question 9

Dormant Commerce Clause

Answer 9

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

Question 10

DCC: Test

Answer 10

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?)

Question 11

DCC: Market Participant Exception

Answer 11

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)

Question 12

Strict Scrutiny

Answer 12

narrowly tailored to a compelling state interest

Question 13

Intermediate Scrutiny

Answer 13

substantially related to an important state interest

Question 14

Rational Basis Test

Answer 14

rationally related to a legitimate government interest

Question 15

Intermediate Scrutiny

Answer 15

substantially related to an important state interest

Question 15

Rational Basis Test

Answer 15

rationally related to a legitimate government interest

Question 15

Strict Scrutiny

Answer 15

narrowly tailored to a compelling state interest

Question 16

Privileges and Immunities Clause

Answer 16

prohibits states from intentionally discriminating against nonresidents in commercial activity without substantial justification

must be for a PROTECTIONIST purpose

Question 17

Intermediate Scrutiny

Answer 17

substantially related to an important state interest

Question 17

Rational Basis Test

Answer 17

rationally related to a legitimate government interest

Question 17

Strict Scrutiny

Answer 17

narrowly tailored to a compelling state interest

Question 18

Privileges and Immunities Clause: Test

Answer 18

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)

Question 19

Rational Basis Test

Answer 19

rationally related to a legitimate government interest

Question 19

Strict Scrutiny

Answer 19

narrowly tailored to a compelling state interest

Question 19

Intermediate Scrutiny

Answer 19

substantially related to an important state interest

Question 20

Intermediate Scrutiny

Answer 20

substantially related to an important state interest

Question 20

Strict Scrutiny

Answer 20

narrowly tailored to a compelling state interest

Question 20

Rational Basis Test

Answer 20

rationally related to a legitimate government interest

Question 21

Substantive Due Process

Answer 21

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

Question 22

Substantive Due Process: Test

Answer 22

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)

Question 23

Procedural Due Process

Answer 23

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)

Question 24

Procedural Due Process: Test

Answer 24

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)

Question 27

Vagueness

Answer 27

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

Question 28

Takings Clause

Answer 28

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)

Question 30

Contracts Clause

Answer 30

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

Question 31

Contracts Clause

Answer 31

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

Question 32

Supremacy Clause

Answer 32

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*

Question 33

Field Preemption

Answer 33

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

Question 35

Conflict Preemption

Answer 35

state policy may present a result inconsistent with the objective of the federal statute

Question 37

Strict Scrutiny

Answer 37

narrowly tailored to a compelling state interest

Question 38

Strict Scrutiny

Answer 38

narrowly tailored to a compelling state interest

Question 39

Strict Scrutiny

Answer 39

narrowly tailored to a compelling state interest

Question 40

Strict Scrutiny

Answer 40

narrowly tailored to a compelling state interest

Question 41

Intermediate Scrutiny

Answer 41

substantially related to an important state interest

Question 42

Intermediate Scrutiny

Answer 42

substantially related to an important state interest

Question 43

Intermediate Scrutiny

Answer 43

substantially related to an important state interest

Question 47

Strict Scrutiny

Answer 47

narrowly tailored to a compelling state interest use when facially discriminatory or discriminatory intent

Question 48

Intermediate Scrutiny

Answer 48

substantially related to an important state interest

Question 49

Rational Basis Test

Answer 49

rationally related to a legitimate state interest presumption of constitutionality use for economic regulations

Question 50

Overbreadth

Answer 50

statute is unconstitutionally overbroad if it restricts protected speech as well as unprotected speech first amendment

Question 51

First Amendment: Free Speech

Answer 51

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

Question 52

Free Speech: Test

Answer 52

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"?

Question 53

What is "speech"?

Answer 53

speech is a broad concept that includes words, symbols (symbolic speech), and expressive conduct must be expressing a message

Question 54

What is "speech"?

Answer 54

speech is a broad concept that includes words, symbols (symbolic speech), and expressive conduct must be expressing a message

Question 55

Commercial Speech

Answer 55

protected by the first amendment so long as it is "truthful" and not deceptive intermediate scrutiny for regs regulating commercial speech

Question 56

Forum Rules

Answer 56

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)

Question 57

Political Speech

Answer 57

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

Question 58

Political Speech

Answer 58

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

Question 59

Speech by Public Employees

Answer 59

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!)

Question 60

Obscenity

Answer 60

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

Question 61

Prior Restraint

Answer 61

General Rule: government must wait until speech occurs before acting heavy presumption AGAINST validity, need extreme circumstances (think spies in the newspaper)

Question 62

Content Regulation

Answer 62

regulations forbidding communication of specific ideas are presumptively unconstitutional

Question 63

Conduct Regulation

Answer 63

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

Question 64

Symbolic Speech

Answer 64

conduct to communicate an idea enjoys some first amendment protections must promote an important government interest indirect impact on symbolic speech is permitted

Question 65

Time/Place/Manner Restrictions

Answer 65

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

Question 66

Vagueness

Answer 66

a statute is unconstitutionally vague if it restricts 1st amendment protection but fails to provide an ascertainable standard of acceptable conduct

Question 67

Freedom of Association

Answer 67

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)

Question 68

Free Exercise Clause

Answer 68

prohibits

Question 69

Establishment Clause

Answer 69

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?

Question 70

Anti-Commandeering; Federalism

Answer 70

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)

Question 71

"Adequate and Independent" State Grounds; Justiciability

Answer 71

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

Question 72

Standing/Mootness/Live Case or Controversy

Answer 72

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)

Question 73

Standing

Answer 73

1) injury in fact 2) caused by defendant's conduct 3) redressable by relief sought

Question 74

Standing: Corporations/Organizations

Answer 74

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

Question 75

11th Amendment

Answer 75

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

Question 76

Displays of Religious Symbols on Public Property

Answer 76

longstanding monuments are presumed constitutional because they likely have historical significance and their original purpose may be unclear establishment clause

Question 77

State Action

Answer 77

"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

Question 78

Fundamental Rights

Answer 78

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)

Question 79

Campaign Contributions

Answer 79

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