Constitutional Law Flashcards
MEE Key Principle #1: Commerce Clause
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.
Exception: state acting as a market participant (business) instead of a regulator.
MEE Key Principle #2: Congressional Powers
Congress’s powers are limited to those given to it by the Constitution. It has 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.
MEE Key Principle #3: State Action Requirement in 1A, 14A, and 15A suits
Generally, if a plaintiff is suing under the 1st, 14th, or 15th amendments (for free speech, due process, Equal Protection Clause issues, or voting rights), the plaintiff needs to show a government actor or action “fairly attributable to the government.”
What constitutes “state action” under the 1st, 14th and 15th Amendments?
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, or when private action is closely controlled by the state.
MEE Key Principle #4: Equal Protection
The Equal Protection Clause has three standards to apply: strict scrutiny, intermediate scrutiny, and rational basis scrutiny.
Strict Scrutiny
The government must prove that the law is narrowly tailored (necessary) to achieve a compelling government interest.
Triggered by government action or legislation that is enacted with discriminatory intent (shown by facial discrimination, discriminatory application, or discriminatory motive) with respect to fundamental rights (right to move, vote) or suspect classifications (race, national origin, alienage).
Intermediate Scrutiny
The government must prove that the law is substantially related to an important government interest.
Triggered by quasi-suspect classes (gender and illegitimacy).
Rational Basis Scrutiny
The plaintiff must prove that the law is NOT rationally related to a legitimate government interest. Applies to every class that is not suspect or quasi-suspect.
MEE Key Principle #7
The 11th Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state.
Note: there are exceptions (e.g., if a federal statute properly abrogates immunity).
MEE Key Principle #6: Eminent Domain
Neither the federal government nor the states can take private property for public use without just compensation. A “public use” is defined broadly and may include giving land to a private party for commercial development.
Note: comes from the Due Process Clause of the 5th Amendment, binding on states via 14th Amendment.
Physical Takings
A physical taking occurs when there is a permanent physical occupation, regardless of what public interests it may serve.
Regulatory Takings
When a regulation deprives an owner of all economically beneficial use of property or destroys all reasonable investment-backed expectations, it is a taking.
Exactions
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).
MEE Key Principle #5: Free Speech
Begin a free speech essay with “The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.” It applies to government regulation of private speech.
Content-based and Viewpoint-based Discrimination
Triggers strict scrutiny
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 government interest and is unrelated to the suppression of the speech.
Unprotected Speech
A law regulating unprotected speech (clear and present danger, fighting words, true threats or words as conduct, obscene speech) must pass rational basis scrutiny
Less Protected Speech
Commercial speech, sexual or indecent speech, time-place-manner restrictions
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 government interest, (3) the statute must directly advance that interest, and (4) the statute must be narrowly tailored
Rights of Corporations
Independent political expenditures by a for-profit corporation constitutes free speech protected by the First Amendment
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 is a matter of public concern.
Key Free Speech Principles
There is a presumption against prior restraint of speech. Laws that are overbroad (prohibit substantially more expression than necessary) or vague (a reasonable person could not tell what is prohibited by the law) are unconstitutional.
Public School Speech
Students have free speech rights, but speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical concerns.
Prohibitions on Sexual or Indecent Speech
The law must serve a substantial government interest and leave open reasonable alternative channels of communication
Time/Place/Manner Restrictions
A restriction in a public forum must be (1) content neutral, (2) narrowly tailored to serve an important government interest, and (3) leave open alternative channels of communication.
A restriction in a nonpublic forum must be (1) viewpoint neutral and (2) reasonably related to a legitimate government interest.
