Constitutional Law Flashcards
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State Action
Generally, the Constitution protects against wrongful conduct by the government, not private parties (there is an exception for the prohibition of slavery, which applies to the government and private parties). Thus, state action is required to trigger an individual’s constitutional protections.
State action may exist in cases of private parties when:
- A private person carries on activities that are traditionally performed exclusively by the state; OR
- There are sufficient mutual contacts between the conduct of a private party and the government (this is a question of the degree of state involvement).
State Sovereignty
The 11th Amendment is a jurisdictional bar that prohibits:
- The citizens of one state or a foreign country from suing another state in federal court for money damages or equitable relief; AND
- Suits in federal court against state officials for violating state law.
The following are exceptions to the application of the 11th Amendment:
Consent. A state may consent to a suit by waiving its protection.
Injunctive Relief. When a state official, rather than the state itself, is named as the defendant in an action brought in federal court, the state official may be enjoined from enforcing a state law that violates federal law or may be compelled to act in accord with federal law despite state law to the contrary.
Individual Damages. An action for damages against a state official is not prohibited so long as the official himself will have to pay.
Congressional Authorization. Congress may abrogate state immunity from liability it is clearly and expressly acting to enforce rights created by the 14th Amendment.
DCC
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not:
- Discriminate against out-of-state commerce;
- Unduly burden interstate commerce; OR
- Regulate wholly out-of-state activity.
Legislation that violates any of the above requirements is generally deemed unconstitutional unless:
- The state is acting as a market participant rather than a market regulator;
- The legislation favors state or local government entities that are performing a traditional government function; OR
- Congress explicitly permits the legislation.
Commerce Clause
Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:
- Channels of interstate commerce;
- Instrumentalities of interstate commerce and persons and things in interstate commerce; OR
- Activities that have a substantial effect on interstate commerce.
When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:
- The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
- The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
14th Amendment EP Clause
When the government makes laws that classify people into groups, the constitutionality of the law will be evaluated according to the type of classification made:
- If a suspect classification is involved, the strict scrutiny standard applies. Classifications are suspect if they are based on race, ethnicity, national origin, or alienage (alienage is only suspect if the classification is made by state law).
- If a quasi-suspect classification is involved, the intermediate scrutiny standard applies. Classifications are quasi-suspect if they are based on gender or legitimacy (non-marital children).
- For all other classifications (e.g., age, disability, and wealth classifications), the rational basis standard applies.
1st Amendment Free Speech
Conduct Based Speech Restrictions in Public Forums
The government has power to regulate the conduct associated with speech (time, place, and manner), although the breadth of this power depends on whether the forum involved is a public or nonpublic forum.
Public property that has historically been open to speech-related activity is called a public forum (e.g., streets, sidewalks, and public parks). Public property that has not historically been open to speech-related activities, but which the government has made open for such activities on a permanent or limited basis, by practice or policy is called a designated public forum (e.g., schoolrooms that are open for after-school use by social, civic, or recreation groups). The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:
Are content-neutral (i.e., are subject matter and viewpoint neutral)
Are narrowly tailored to serve an important government interest; AND
Leave open alternative channels of communication.
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CONDUCT-BASED SPEECH REGULATIONS IN NONPUBLIC FORUMS
Government property that has not historically been linked with speech and assembly but has been opened for specific speech activity is called a limited public forum (e.g., school gym opened to host a debate on a particular community issue).
Government property that has not historically been linked with speech and assembly and has not been opened for specific speech activity is called a nonpublic forum (e.g., military bases, schools while classes are in session, government workplaces, etc.).
The government may regulate speech in limited public forums and nonpublic forums if the regulations are:
Viewpoint neutral; AND
Reasonably related to a legitimate government purpose
Categories of Unprotected Speech
To be valid, restrictions on the content of speech must be necessary to achieve a compelling government interest. The government has a compelling interest in the following categories of speech, which are deemed “unprotected speech” under the 1st Amendment:
Inciting imminent lawless action;
Fighting words;
Obscenity;
Defamatory speech; AND
Some commercial speech
Inciting Imminent Lawless Action
Speech can be restricted if it creates a clear and present danger of imminent lawless action. It must be shown that that:
- Imminent illegal conduct is likely; AND
- The speaker intended to cause it.
Fighting Words
Speech can be limited if it constitutes fighting words.
Fighting words are personally abusive words that are likely to incite immediate physical retaliation in an average person.
The Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., prohibiting only fighting words that insult on the basis of race, religion, or gender).
Obscenity
Obscene speech is not protected. Speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
- Appeals to the prurient interest in sex, using a community standard;
- Is patently offensive; AND
- Lacks serious literary, artistic, political, or scientific value, using a national reasonable person standard.
Commercial Speech
Generally, commercial speech (e.g., advertising) is afforded 1st Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is false, misleading, or fraudulent may be restricted as unprotected speech. Any other regulation of commercial speech will be upheld only if it:
Serves a substantial government interest;
Directly advances that interest; AND
Is narrowly tailored to serve that interest.
Takings Clause
The power of the government to take private property for public purposes is known as “eminent domain.” The Takings Clause of the 5th Amendment acts as a check on this power. It provides that:
Private property may be taken;
For public use;
With just compensation (fair market value)
Regulatory Takings
Generally, a governmental regulation that adversely affects a person’s property interest is not a taking; however, it is possible for a regulation to rise to level of a taking (requiring just compensation). In determining whether a regulation constitutes a taking, the following factors are considered:
- The economic impact of the regulation on the property owner;
- The extent to which the regulation interferes with the owner’s reasonable investment-backed expectations regarding the use of the property; AND
- The character of the regulation (including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership).
