CONSTITUTIONAL LAW Flashcards
Rational Basis Review
P NRR LGP
Rational basis review requires the plaintiff to establish that the regulation is (1) not rationally related to a (2) legitimate government purpose. The burden of proof is on the (3) plaintiff.
Not Rationally Related: The regulation must lack a rational connection to its purpose.
Legitimate Government Purpose: The government must have a valid reason for the regulation, which can be any conceivable legitimate purpose.
Plaintiff: The individual challenging the regulation must prove the lack of rational relation and legitimate purpose.
Intermediate Scrutiny
G SR IGI
Intermediate scrutiny requires that the regulation be (1) substantially related to an (2) important government interest. The burden of proof is on the (3) government.
Substantially Related: The regulation must have a strong connection to its purpose.
Important Government Interest: The government must have a significant reason for the regulation, one that is more than just legitimate.
Government: The government must prove that the regulation meets these criteria.
Strict Scrutiny
G N2A CGI NT NLRM
Strict scrutiny requires that the regulation be (1) necessary to achieve a (2) compelling government interest and (3) narrowly tailored such that there are (4) no less restrictive means available. The burden of proof is on the (5) government.
Necessary: The regulation must be essential, not just helpful.
Compelling Government Interest: The government must have an exceptionally strong reason for the regulation.
Narrowly Tailored: The regulation must be specifically and precisely designed to address the compelling interest.
No Less Restrictive Means Available: There must be no other way to achieve the interest that would be less restrictive.
Government: The government must prove that the regulation meets these criteria.
Equal Protection
CGD LSA LMRLS
Under equal protection, the court will consider (1) the classification the government is drawing, (2) the level of scrutiny that applies based on that classification, and (3) whether the law meets the required level of scrutiny.
Classification: The group or category the law affects.
Government: The entity enacting or enforcing the classification.
Drawing: How the classification is defined or applied.
Level of Scrutiny: The standard of review (strict, intermediate, or rational basis).
Law: The specific regulation or statute in question.
Required Level of Scrutiny: The appropriate standard the law must meet to be upheld.
Suspect Classification
SS PFL FN DI DI
When dealing with a suspect classification, the court will apply strict scrutiny. A suspect classification exists if the classification is present on the face of the law, or if the law is facially neutral, by demonstrating both discriminatory impact and discriminatory intent.
Strict Scrutiny: The highest level of judicial review.
Present: The classification must be evident.
Face: The explicit wording of the law.
Law: The specific regulation or statute in question.
Facially Neutral: The law does not explicitly discriminate but has discriminatory effects.
Discriminatory Impact: The law disproportionately affects a particular group.
Discriminatory Intent: The law was created with the intention to discriminate.
Quasi-Suspect Classification
IS FL FN DI DI
When dealing with a quasi-suspect classification, the court will apply intermediate scrutiny. A quasi-suspect classification exists if the classification is present on the face of the law, or if the law is facially neutral, by demonstrating both discriminatory impact and discriminatory intent.
Intermediate Scrutiny: The mid-level standard of judicial review.
Present: The classification must be evident.
Face: The explicit wording of the law.
Law: The specific regulation or statute in question.
Facially Neutral: The law does not explicitly discriminate but has discriminatory effects.
Discriminatory Impact: The law disproportionately affects a particular group.
Discriminatory Intent: The law was created with the intention to discriminate.
Takings
5 GTPP 4PU JCP
Under the takings clause of the 5th Amendment, the government may take private property for public use if just compensation is paid.
5th Amendment: The constitutional provision involved.
Take Private Property: The act of seizing property.
Public Use: The purpose for which the property is taken.
Just Compensation: The requirement that the owner is fairly compensated.
Types of Takings:
Possessory Taking: A government confiscation of property.
Regulatory Taking: Occurs when a regulation leaves no reasonable economically viable use for the property.
Standing
ICR
Standing requires (1) injury in fact, (2) causation, and (3) redressability.
Injury in Fact: A concrete and particularized harm suffered by the plaintiff.
Causation: A direct link between the injury and the defendant’s conduct.
Redressability: A likelihood that the court can provide relief for the injury.
Common Ways This is Tested:
Hypothetical Injuries: Exams often present scenarios where the injury is speculative or hypothetical. Ensure the injury is concrete and specific.
Indirect Causation: Be wary of fact patterns where the link between the injury and the defendant’s action is tenuous. The causation must be direct.
Lack of Redressability: Sometimes, the exam will include scenarios where the court cannot provide a meaningful remedy. Ensure the court can redress the injury.
Common Tricks on the Exam:
Generalized Grievances: Questions might involve plaintiffs asserting a broad, generalized grievance rather than a specific injury. Remember, the injury must be concrete and particularized.
Third-Party Standing: Fact patterns might involve a plaintiff trying to assert the rights of a third party. Generally, plaintiffs must assert their own rights.
Multiple Causal Links: Some scenarios might introduce multiple potential causes for the injury, diluting the direct causation requirement. Focus on a clear, direct link.
Future Injuries: Be cautious of injuries that are expected to occur in the future but have not yet happened. The injury must be actual or imminent.
Third Party Standing
SRPI IPCAOR
A plaintiff may not assert the claims of third parties not before the court unless (1) there is a special relationship between the plaintiff and the injured party, or (2) the injured party cannot or is unlikely to assert his own rights.
Claims: Legal rights or interests at issue.
Third Parties: Individuals not directly involved in the case.
Before the Court: Not present or participating in the litigation.
Special Relationship: A close connection between the plaintiff and the injured party.
Plaintiff: The person bringing the lawsuit.
Injured Party: The person who has suffered harm.
Assert: To make a legal claim or defend rights.
Own Rights: The personal legal interests of the injured party.
Common Ways This is Tested:
Lack of Special Relationship: Exam scenarios often lack a clear, special relationship between the plaintiff and the injured party. Ensure the relationship is sufficiently strong to justify third-party standing.
Ability to Assert Own Rights: Fact patterns may include an injured party who can clearly assert their own rights. Confirm the injured party genuinely cannot or is unlikely to assert their own rights.
Common Tricks on the Exam:
General Representation: Questions might present a scenario where the plaintiff is trying to represent a broad group of third parties without a special relationship. Ensure there is a specific, close connection.
Present Third Party: Some scenarios might imply that the third party is actually before the court but still involves the plaintiff asserting their rights. Verify that the third party is genuinely absent or unable to assert their own rights.
Adequate Representation: Sometimes, the exam will include details that suggest the third party has alternative means of adequately representing their own interests. Double-check that no such means are available.
Associational Standing
IMS IGOP NCNR PIM
An organization can sue on behalf of its members if (1) the individual members themselves would have standing on their own, (2) the interests are germane to the organization’s purpose, and (3) neither the claim nor relief requires the participation of individual members.
Sue on Behalf of Its Members: The organization takes legal action for its members.
Individual Members Themselves: Members who have suffered harm.
Standing on Their Own: Members must meet the requirements for standing individually.
Interests Are Germane: The lawsuit’s issues must align with the organization’s goals.
Organization’s Purpose: The objectives and mission of the organization.
Claim: The legal issue being brought to court.
Relief: The remedy sought from the court.
Participation: Direct involvement in the lawsuit.
Individual Members: The actual people affected who belong to the organization.
Common Ways This is Tested:
Direct Standing of Members: Exam scenarios often question whether individual members themselves have standing. Verify that members would have standing on their own.
Alignment with Purpose: Fact patterns may challenge whether the interests are germane to the organization’s purpose. Ensure the lawsuit’s issues align with the organization’s goals.
Necessity of Member Participation: Some scenarios test whether the claim or relief requires direct involvement from individual members. Confirm that neither requires individual members’ participation.
Common Tricks on the Exam:
Non-Germane Interests: Questions might present scenarios where the lawsuit’s issues are not aligned with the organization’s goals. Ensure the interests are truly germane to the organization’s purpose.
Individual Member Participation: Some fact patterns suggest the need for individual members to participate actively in the lawsuit. Verify that the claim and relief do not require their direct involvement.
Inadequate Standing: Scenarios may imply that individual members do not have standing on their own. Confirm that members meet all standing requirements individually.
Substantive Due Process
WGDFR SSA INF RBA
When the government deprives a fundamental right, the court will apply strict scrutiny. If the deprivation is of a right which is not fundamental, the court will apply rational basis review.
Fundamental Right: Rights that are deeply rooted in the nation’s history and tradition.
Strict Scrutiny: The highest level of judicial review requiring the government to prove that the law is necessary to achieve a compelling state interest.
Right Which is Not Fundamental: Rights that do not have the same historical significance or protection.
Rational Basis Review: The lowest level of judicial review requiring the law to be rationally related to a legitimate government interest.
Common Ways This is Tested:
Identifying Fundamental Rights: Exams often test whether a specific right is considered fundamental. Make sure you know which rights are fundamental (e.g., right to privacy, travel, vote, and free speech).
Applying the Correct Standard: Fact patterns may present scenarios where you must apply the correct level of scrutiny. Be clear about when to use strict scrutiny versus rational basis review.
Common Tricks on the Exam:
Misleading Labels: Questions might label a right as fundamental when it is not. Verify the historical significance and protection level of the right in question.
Blurred Lines Between Scrutiny Levels: Some scenarios might confuse the standards of review. Remember that strict scrutiny requires necessity and a compelling interest, while rational basis only requires a rational connection to a legitimate interest.
Mixing Procedural and Substantive Due Process: Be cautious of questions that mix procedural due process (fair procedures) with substantive due process (protection of rights). Focus on the substantive aspect regarding the rights being deprived.
Procedural Due Process: Government Steps
GMTPS B4DI LLP
The government must take procedural steps before depriving an individual of life, liberty, or property.
Take Procedural Steps: The government must follow fair procedures.
Depriving an Individual: The act of taking away rights or property.
Life, Liberty, Property: The protected interests of individuals.
Procedural Due Process: Balancing Test
II APS FF GIAE
The court will apply a three-part balancing test, which includes: (1) the importance of the interest to the individual, (2) the ability of additional procedural safeguards to increase the accuracy of fact-finding, and (3) the government’s interest in administrative efficiency.
Importance: The significance of the interest affected.
Interest: The specific right or property at stake.
Individual: The person affected by the deprivation.
Ability: The capability of additional procedures.
Additional Procedural Safeguards: Extra steps to ensure fairness.
Increase: To enhance or improve.
Accuracy: The correctness of the decision-making process.
Fact-Finding: The process of determining the facts of a case.
Government’s Interest: The reasons or goals of the government.
Administrative Efficiency: The effectiveness and cost of government procedures.
Common Ways This is Tested:
Importance of the Interest: Exam scenarios may question the significance of the individual’s interest. Ensure you can distinguish between fundamental and non-fundamental interests.
Effectiveness of Additional Safeguards: Fact patterns may test the potential impact of extra procedural steps. Be prepared to evaluate how additional safeguards could improve accuracy.
Government’s Efficiency: Scenarios might present the government’s interest in a streamlined process. Balance this against the need for fair procedures.
Common Tricks on the Exam:
Overlooking Procedural Steps: Questions might imply the government can skip procedural steps. Remember that due process requires fairness before deprivation.
Misjudging Importance: Some scenarios may downplay the importance of the individual’s interest. Focus on the significance of life, liberty, or property interests.
Ignoring Government’s Efficiency: Fact patterns might ignore the government’s need for administrative efficiency. Balance the need for fair procedures with the practicalities of government operation.
First Amendment Protections: Freedom of Religion – Establishment Clause
PEORBG
The Establishment Clause prohibits the establishment of religion by the government. Laws which contain a sect preference must be narrowly tailored to promote a compelling government interest.
Laws which do not contain a sect preference are to be interpreted in light of historical practices and original meaning, and must not be coercive.
Establishment of Religion: The government cannot officially endorse or support any religion.
Government: The entity prohibited from establishing religion.
Contain: To include or have elements of.
Sect Preference: Favoring one religious group over others.
Narrowly Tailored: Specifically designed to achieve the intended goal without overreaching.
Promote: To advance or encourage.
Compelling Government Interest: A vital or essential objective of the government.
Historical Practices: Traditions and customs from the past.
Original Meaning: The intent and understanding at the time the Constitution was written.
Coercive: Forcing someone to act in a certain way, especially regarding religious beliefs.
Common Ways This is Tested:
Identifying Sect Preference: Exam scenarios often require distinguishing whether a law favors a particular religion. Verify if the law contains sect preference.
Applying Strict Scrutiny: For laws with sect preference, ensure the law is narrowly tailored to promote a compelling government interest.
Interpreting Non-Sect Preference Laws: Fact patterns may require interpretation based on historical practices and original meaning. Ensure the law is not coercive.
Common Tricks on the Exam:
Overlooking Sect Preference: Questions might present subtle sect preferences. Be attentive to any elements favoring one religion.
Misapplying Scrutiny Levels: Some scenarios might confuse the required level of scrutiny. Remember strict scrutiny for sect preference laws and historical practices for non-sect preference laws.
Ignoring Coercion: Fact patterns may imply non-coercive laws are permissible. Ensure the law does not force religious conformity or participation.
First Amendment Protections: Freedom of Religion – Free Exercise Clause
SSA
The Free Exercise Clause cannot be used to challenge a law of general applicability unless motivated by a desire to interfere with religion. If the law is shown to target religion, strict scrutiny applies.
Challenge: To contest or question the validity of a law.
Law: The regulation or statute in question.
General Applicability: A law that applies to everyone equally without targeting a specific group.
Motivated: Driven by a specific intent or purpose.
Desire: The aim or goal behind the law.
Interfere with Religion: To obstruct or hinder religious practices.
Strict Scrutiny: The highest level of judicial review, requiring a compelling government interest and the least restrictive means.
Common Ways This is Tested:
Determining General Applicability: Exam scenarios often require identifying whether a law applies generally or targets a specific group. Confirm the law is of general applicability.
Assessing Motive: Fact patterns may test whether the law is motivated by a desire to interfere with religion. Look for evidence of discriminatory intent.
Applying Strict Scrutiny: For laws targeting religion, ensure strict scrutiny is applied correctly, demanding a compelling government interest and the least restrictive means.
Common Tricks on the Exam:
Disguised Intent: Questions might present laws that seem neutral but have hidden motives to target religion. Look for subtle indicators of intent.
Misapplication of Standards: Some scenarios might incorrectly apply rational basis review instead of strict scrutiny for laws interfering with religion. Remember that strict scrutiny is required when a law targets religion.
Overlooking General Applicability: Fact patterns may imply a law is generally applicable without examining its true impact on religious practices. Ensure the law does not indirectly target religion.
First Amendment Protections: Freedom of Speech – Content-Based vs. Content-Neutral
CB CSN
A content-based speech restriction will receive strict scrutiny.
A content-neutral speech restriction will receive intermediate scrutiny.
A prior restraint prevents speech before it occurs and will receive strict scrutiny.
A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
A regulation is overly broad and unconstitutional if it regulates substantially more speech than the constitution allows.
The government can regulate symbolic speech, or conduct that communicates, if (1) it has an important interest unrelated to the suppression of the message, and (2) the impact on communication is no greater than necessary to achieve the government’s purpose.
Speech which incites illegal activity is less protected. The court looks to whether (1) the illegality is imminent, and (2) the speech was directed at causing illegality.
Obscene speech is not protected. The test for determining obscenity requires that the material must: (1) appeal to the prurient interest, (2) be patently offensive, and (3) lack artistic, literary, political, or scientific value.
Common Ways This is Tested:
Distinguishing Content-Based vs. Content-Neutral: Exam scenarios often require identifying whether a restriction is content-based or content-neutral. Apply strict scrutiny for content-based and intermediate scrutiny for content-neutral.
Prior Restraints: Questions may involve prior restraints. Ensure strict scrutiny is applied to these severe restrictions.
Vagueness and Overbreadth: Fact patterns might test understanding of vague and overly broad laws. Ensure the law is clear and does not regulate more speech than necessary.
Symbolic Speech: Scenarios may present symbolic speech. Confirm the regulation serves an important interest without suppressing the message.
Incitement and Obscenity: Be prepared to evaluate speech inciting illegal activity and obscene speech using the appropriate tests.
Common Tricks on the Exam:
Mislabeling Restrictions: Questions might mislabel content-based restrictions as content-neutral. Verify the basis of the restriction.
Confusing Scrutiny Levels: Some scenarios might confuse strict and intermediate scrutiny. Apply strict scrutiny for content-based and prior restraints, and intermediate for content-neutral.
Overlooking Vagueness and Overbreadth: Fact patterns may ignore the implications of vague or overly broad laws. Ensure the law is specific and not excessively restrictive.
Symbolic Speech Overregulation: Scenarios may present overregulation of symbolic speech. Check that the regulation is narrowly tailored.
Neglecting Tests for Incitement and Obscenity: Questions might skip necessary tests for speech inciting illegal activity or obscenity. Apply the correct legal standards.
First Amendment - Content-Neutral Restrictions
First Amendment - Content-Neutral Restrictions
Rule Statement:
Content-neutral restrictions on speech are evaluated under intermediate scrutiny, which requires that the regulation is narrowly tailored to further an important government interest and leaves open ample alternative channels of communication.
Acrostic and Mnemonic
Acrostic Sentence:
Nifty Tailored Alternatives.
Narrowly tailored
To further an important government interest
And leaves open alternative channels of communication
Mnemonic Visualization:
Visualize a Tailor:
Imagine a skilled tailor (narrowly tailored) carefully working on a suit in a courtroom. The suit represents the city’s historic district ordinance. The tailor is explaining to a judge that the suit (the ordinance) fits perfectly because it’s designed to further the city’s interest in maintaining the historic character (important government interest) while still allowing people to wear other kinds of clothes (alternative channels of communication).
Case Scenario
Question:
Residents of a city complained that brightly colored signs detracted from the character of the city’s historic district and distracted motorists trying to navigate its narrow streets. In response, the city council enacted an ordinance requiring any “sign or visual display” visible on the streets of the historic district to be black and white and to be no more than four feet long or wide.
A political party wanted to hang a six-foot-long red, white, and blue political banner in front of a building in the historic district. The party filed suit to challenge the constitutionality of the sign ordinance as applied to the display of its banner.
Which of the following would be the most useful argument for the political party?
The ordinance is not the least restrictive means of promoting a compelling government interest.
The ordinance is not narrowly tailored to further an important government interest, nor does it leave open alternative channels of communication.
The ordinance imposes a prior restraint on political expression.
The ordinance effectively favors some categories of speech over others.
Correct Answer:
The ordinance is not narrowly tailored to further an important government interest, nor does it leave open alternative channels of communication.
Explanation:
The city’s ordinance is a content-neutral restriction because it restricts signs regardless of their content. Thus, it triggers intermediate scrutiny, not strict scrutiny. Under intermediate scrutiny, the ordinance must be narrowly tailored to further an important government interest and leave open alternative channels of communication. The best argument for the political party is that the ordinance fails this test.
Expanded Details for Better Memorization
Content-Neutral Restrictions:
These are regulations that apply to all speech, regardless of the message conveyed. They are subject to intermediate scrutiny.
Intermediate Scrutiny:
To pass intermediate scrutiny, the regulation must:
Narrowly Tailored: Be specifically and narrowly designed to achieve the goal without being overly broad.
Important Government Interest: Serve a significant or substantial government objective.
Alternative Channels: Allow for sufficient alternative avenues for communication.
Common Ways Tested:
Fact patterns may involve local ordinances affecting signs, public demonstrations, or other forms of expression.
Scenarios often test whether the regulation is narrowly tailored and if there are adequate alternative channels for communication.
Common Tricks:
Questions might present regulations that appear content-neutral but have hidden content-based implications.
Scenarios may include minor details suggesting that alternative communication channels are insufficient.
Additional Memorization Techniques:
Spaced Repetition: Review the acrostic and visualization at regular intervals.
Focus on Key Terms: Remember “Narrowly tailored,” “Important government interest,” and “Alternative channels.”
Immersion: Discuss these concepts with peers or use flashcards.
Visualization: Picture the skilled tailor in the courtroom, representing the ordinance.
Memory Palace: Imagine different rooms in a house where each room represents a different element of the rule.
Storylining: Create a story where a political party challenges an ordinance in court, using the elements of intermediate scrutiny as the plot points.
Handwriting: Write out the rule statement, acrostic, and visualization to reinforce memory through physical activity.
Justiciability
Justiciability
State Sovereign Immunity (11th Amendment):
General Rule: Party can’t sue a state or state agency in federal court.
Exceptions:
Consent
Injunction against a state official
Can sue state officials directly
Congress may sue to enforce rights created by the 14th Amendment.
Standing:
Individual Standing:
Injury-in-Fact: Concrete & particularized.
Causation: Defendant caused the injury.
Redressability: Injury is redressable by court order.
Organizational and Third-Party Standing: Allowed under specific conditions.
Taxpayer Standing: Generally not allowed except for specific types of challenges.
Advisory Opinion: Court cannot issue advisory or hypothetical opinions.
Ripeness: Requires actual harm or immediate threat of harm.
Mootness:
General Rule: Court cannot hear a case that has ended or been resolved prior to review.
Exceptions:
Capable of repetition and evading review.
Defendant could resume offending practice.
Class action where one member has an ongoing injury.
State Sovereign Immunity (11th Amendment):
State Sovereign Immunity (11th Amendment):
General Rule: Party can’t sue a state or state agency in federal court.
Exceptions:
Consent
Injunction against a state official
Can sue state officials directly
Congress may sue to enforce rights created by the 14th Amendment.
Standing
Standing:
Individual Standing:
Injury-in-Fact: Concrete & particularized.
Causation: Defendant caused the injury.
Redressability: Injury is redressable by court order.
Organizational and Third-Party Standing: Allowed under specific conditions.
Taxpayer Standing: Generally not allowed except for specific types of challenges.
Advisory Opinion
Advisory Opinion: Court cannot issue advisory or hypothetical opinions.
Ripeness
Ripeness: Requires actual harm or immediate threat of harm.
