Constitutional Law

Question 1

Crossover Topics

Answer 1

• Real Property (eminent domain/takings/due process)

Question 2

A prerequisite for triggering Consitutional Protections that must ALWAYS be discussed on Essay

Answer 2

State Action
1. Traditional
2. Significant State Involvement

Question 3

Standing - Individual

Answer 3

1) Injury in fact;
2) Causation; and
3) Redressability

Question 4

Organizational Standing

Answer 4

1) Individual members have standing;
Exam Tip: In addressing organizational standing, you must first analyze individual standing to meet the first requirement.

2) Claim is related to the purpose of the organization; and

3) The individual members are not necessary to adjudicate the claim

Question 5

Commerce Clause vs. Dormant Commerce Clause

Answer 5

o The Commerce Clause enables Congress to regulate interstate commerce.

o The Dormant Commerce Clause limits the states’ ability to regulate interstate commerce, an area that Congress already regulates.

-States may not discriminate or unreasonably burden interstate commerce.

Question 6

Discriminatory or Nondiscriminatory

Answer 6

▪ If the state law is discriminatory against out-of-state commerce, the state must show (SS):

a) It has an important state interest; and

b) There is no other non-discriminatory means available to achieve that interest

▪ Market Participant EXCEPTION
Editorial Note 1: In addition to the Market Participant Exception, there are three additional exceptions to consider:

(1) the traditional government function exception,
(2) the subsidy exception, and (3) the congressionally permitted discrimination exception.

Question 7

Undue Burden on Interstate Commerce

Answer 7

▪ Eeven if a statute is not discriminatory (see prior card), the law may still be invalid if it causes an “undue burden” on interstate commerce.

▪A court will balance the “important state interest” of the statute against the burden on interstate commerce and whether there are less restrictive alternatives.

Question 8

5th Amendment

Answer 8

Takings Clause - The government may not take private property for public use without just compensation.

Question 9

Due Process Types

Answer 9

1. Substantive
2. Procedural

Question 10

Procedural Due Process

Answer 10

o The Due Process Clause provides certain protections (i.e., procedures) before the government can take a person’s life, liberty, or property.

• Court balances
  (i) the private interest affected;
  (ii) the risk of erroneous deprivation using current procedures and the probable value of additional/substitute safeguards; and
  (iii) the government’s interest
• Generally entitled to notice of government’s action and an opportunity to be heard

Question 11

Examples of procedures:

Answer 11

notice, hearings, appeals, neutral decision maker

Question 12

Strict scrutiny

Answer 12

if government action infringes upon a fundamental right

• Law must be least restrictive means to achieve compelling government interest
• The burden of proof is on the government

Question 13

Rational Basis

Answer 13

If the interest infringed upon is not fundamental

• Law must be rationally related to a legitimate state interest (minimal scrutiny)
• In practice, applied to laws related to lifestyle, taxation, zoning, and punitive damages
• The burden of proof is on the challenger

Question 14

Intermediate Scrutiny

Answer 14

• Only comes up in equal protection analysis. Gender / Illegitimacy.

o Substantially related to an important governmental interest

o Burden appears generally to be on the government

Question 15

Fundamental Rights

Answer 15

Due Process

1. Travel
   * From state to state
   * Reasonable residency requirements or waiting periods may be imposed on the receipt of some government benefits
   * Once a person qualifies as a resident, she must be treated equally
2. Voting and ballot access
   * Right to vote
   o Applies to all federal, state, and local elections, including primary elections
   o Despite being a fundamental right, strict scrutiny does not apply to all laws that restrict this right
   o The more significant the government restriction, the greater the degree of scrutiny

• Public office and ballot access—EXCEPTION: no fundamental right to hold office through election or appointment, but all persons do have a constitutional right to be considered for office without the burden of invidious discrimination

3. Privacy—includes marriage, contraception, intimate sexual behavior, parental rights, family relations, obscene material, right to refuse medical treatment, and right to avoid disclosure of personal medical information :(
4. Second Amendment—guarantees an individual’s right to possess a firearm, subject to lawful regulations

Question 16

Constitutional bases for equal protection

Answer 16

14th Amendment Equal Protection Clause for states and 5th Amendment Due Process Clause for federal government

Question 17

Suspect Classifications

Answer 17

Race
Ethnicity
National Origin
Citizenship (fed - prob ok unless arbitrary and unreasonable; state probably subject to SS)

Question 18

Establishment

Answer 18

when a governmental program shows preference to one religion over another, or to religion over nonreligion, strict scrutiny applies

• to determine if a particular program violates the Establishment Clause, “historical practices and understandings” are considered

Question 19

Free Excercise

Answer 19

includes the freedom to believe and the freedom to act

• State laws that intentionally target religious conduct are subject to strict scrutiny
• Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test
• Under the Religious Freedom Restoration Act, neutral laws of general applicability are subject to strict scrutiny if they substantially burden free exercise of religion