Constitutional Law

Question 2

Standing

Answer 2

A party has standing only if they can show a concrete stake in the outcome of the controversy. A plaintiff will be able to show a sufficient stake only if they can show an injury in ffact, caused by the ddefendant, that can be remedie by a decision in their favor.

Question 3

Organizational Standing

Answer 3

An organization can show staning to assert a claim on behalf of its members if 1) the organization exists to advance the interest of the memebers; 2) the members have standing; and 3) the claim does not require the presence of all the members.

Question 4

State Action

Answer 4

The US Constitution generally prohibits government infringement of constitutional rights. Litigants must show the action is attributable to the state, including private inividuals who 1) are performing exclusive public function, and 2) have significant state involvement in their activities.

Question 5

Ripeness

Answer 5

A federal court will not hear a case before it has fully developed, to do so would be premature and any potential injury speculative. (We need to have actual injury from the law or act. Can’t sue about re-zoning laws before you incur losses because of it, even if you bought the property before rezoning)

Question 6

Mootness

Answer 6

A case where the dispute has ended or was resolved before review is considered moot. However, such a case can be heeard when the wrong can be repeated, the defendant voluntarily ceased, but can restart the offending practice.

Question 7

Overbroad

Answer 7

A law is overbroad when it prohibits more speech than necessary

Question 8

Vague

Answer 8

A law will be held as vague if it gives no reasonable notice as to what speech is prohibited

Question 9

Unfettere Discretion

Answer 9

A regulation must provide define standards as to how to apply to law to prevent regulating officials from having unfettered discretion in their application of the law.

Question 10

Supremacy Clause

Answer 10

If a federal law preempts state law, state law will be invalid under the Supremacy Clause. A federal law impliedly preempts a state law if: 1) federal and state laws are mutually exclusive (following one law means you aren’t following the other); 2) State law impedes objectives of the federal law; or 3) Congress evidences a clear intent to preempt the field (think nuclear power, where you don’t want each state to come up with their own ways to dispose of radioactive material)

Question 11

1st Amendment

Answer 11

Congress shall make no law respecting an establishment of a religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of greivances.

Question 12

2nd Amendment

Answer 12

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be inffringed.

Question 13

DC v. Heller

Answer 13

Protects firearms for thos not in the militia, and for any lawful purpose, such as self-defence in a persons’ home.

Question 14

3rd Amendment

Answer 14

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. (This issue has never been litigated before the SCOTUS)

Question 15

4th Amendment

Answer 15

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Question 16

5th Amendment

Answer 16

No person shall be held to answer for a capital, or othewise infamous crime, unless on presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

Question 17

5th Amendment Applicability

Answer 17

The 5th Amendment only applies to individuals and is frequently used to protect persons from self-incrimination. It doesn’t apply to corporations and does not apply to the compelled production of documents. It is the home of the double jeopardy claus, the due process and takings clauses, and the right to a grand jury. It also has an implied equal protections provision

Question 18

6th Amendment

Answer 18

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted iwth the witnesses against him; to have compulsor process for obtaining witnesses in his favor, and to have the assistnace of counsel for his defense.

Question 19

6th Amendment Applicability

Answer 19

A lot of Crim Pro rules - public trial, speedy trial, right to counsel, right to an impartial jury, and confrontation clause

Question 20

7th Amendment

Answer 20

In suits at common law, where the value in controversy shall exceed dtwenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than accoring to the rules of the common law.

Question 21

7th Amendment Applicability

Answer 21

Federal Civil claim right to jury, not applicable to states hearing state law claims.

Question 22

8th Amendment

Answer 22

Excessive bail shall not be required, nor excessive fines imposed, nor cruel an unusual punishment inflicted

Question 23

8th Amendment Applicability

Answer 23

Usually at play in death penalty cases for minors, excessive fines and bail. New regulations exist in CA, which also covers forfeiture (drug raid issue). CA 3 strikes rule was challenged under 8th Amendment, but it still stands.

Question 24

9th Amendment

Answer 24

The enumeration in the Constitution of certain rights, shall not be construe to deny or disparage others retained by the people.

Question 25

9th Amendment Applicability

Answer 25

Modern day catch-all for rights. Simply says this BoR isn't a complete laundry list of rights

Question 26

10th Amendment

Answer 26

All powers not granted to the feeral government, nor prohibited to the states, are reserved to the states.

Question 27

10th Amendment Applicability

Answer 27

Foundation for anti-commandeering doctrine - Federal Government is limited in their ability to influence states to address specific issues or order state officials to enforce federal law.

Question 28

11th Amendment

Answer 28

A state is not subject to suit in federal courts by a private party without consent of the state. Suits agains states by other states or by the federal government are allowed. Suits against counties and municipalities are allowed, as are suits for injunctive relieff and against State Officers who must pay claims out of their own pocket.

Question 29

13th Amendment

Answer 29

Prohibition of all slavery, as well as all badges and incidents of slavery, as well as involuntary servitiude within the United States.

Question 30

13th Amendment Applicability

Answer 30

Use 13th Amendment when looking at specific performance in service contracts, to see if granting specific performance would require servitude.

Question 31

14th Amendment

Answer 31

4 sections including, 1) home of the due process clause, which is used to incorporate 5th Amendment due process clause; 2) Equal protection clause; 3) Citizenship clause (anyone born or naturalized is US citizen, unless Native american, who changed under Indian Citizenship Act of 1924)

Question 32

15th Amendment

Answer 32

Prohibits states and federal government from denying any citizen the right to vote on account of race or color, or previous condition of servitude.

Question 33

Declaratory Judgement

Answer 33

A ruling that states the legal effect of a regulation or conduct of parties is permitted. No advisory opinions (violate standing requirements for case).

Question 34

Due Process

Answer 34

Two amendments, 5th and 14th: - 5th Amendment guarantees that the Federal Government shall not deprive any person of "life, liberty or property without due process of law". - 14th Amendment guarantees that no state shall "deprive any person off life, liberty or property, without due process of law". Substantive Due Process - Government interfering with fundamental rights Proceural Due Process - Notice and Hearing

Question 35

Substantive Due Process

Answer 35

Where a law limits the liberty of all persons to engage in some activity. If fundamental right is involved, use strict scrutiny, else, rational basis.

Question 36

Fundamental Rights Test

Answer 36

Include interstate travel, voting, the right to privacy (marry, procreate, use contraceptives, raise one's children, keep family together, custody, and the right to refuse medical treatment). Infringement must satisy Strict Scrutiy test.

Question 37

Non-Fundamental Rights Test

Answer 37

Infringement of non-fundamental rights must satisfy Rational Basis Test.

Question 38

Strict Scrutiny

Answer 38

Applicable when: 1) classification is based on suspect class (rrace, national origin, and alienage at times); or 2) law infringes fundamental rights. The government must show that the classification is the least restrictive means necessary to serve a compelling government interest.

Question 39

Intermediate Scrutiny

Answer 39

Applicable when classification is based on quasi-suspsect class (gender, non-marital chilren, etc.). The government must show that the classification is substantially related to an important government interest.

Question 40

Rational Basis

Answer 40

The plaintiff, not government, must show that the government action is not rationally related to any legitimate government interest.

Question 41

Procedural Due Process

Answer 41

14th Amendment for the states, 5th Amendment for the Federal Government, guarantees that no person shall be denied life, liberty or property without due process of the law. (Notice and hearing)

Question 42

Matthews Factors

Answer 42

To determine if process was sufficient, determine 1) what is the importance of interest to the individual; 2) the value of safeguards to that interest; and 3) what are the government interests.

Question 43

Equal Protection

Answer 43

14th Amendment (States) and 5th Amendment (Fed) Equal Protection Clauses ensure citizens equal protection under the laws. Equal Protection issues arise when the government treats similarly situated individuals differently based on classifications among individuals.

Question 44

Equal Protection Categories and Scrutiny Levels

Answer 44

Strict Scrutiny - Suspect classes (race, alienage or national origin) Intermediate Scrutiny - Quasi-suspect classes (gender and illegitimacy) Rational Basis - All else, including age, wealth, disability, education

Question 45

Discriminatory Class

Answer 45

To determine if a discriminatory class exists, see if either 1) law is discriminatory on its face; ) it is facially neutral but applied in a discriminatory manner; or 3) there was discriminatory motive for the law.

Question 46

Equal Protection Analysis

Answer 46

1) Evaluate discriminatory class 2) Apply appropriate level of scrutiny 3) Analyze level of review of each right infringed.

Question 47

Privileges & Immunities Clause

Answer 47

The Privileges & Immunities Clause prevents states from treating citizens of other states in a discriminatory manner. It only protects non-resients of the state when the discrimination concerns fundamental rights (rights relating to important commercial activities or civil liberties). Applies only if the discrimination is intentionally protectionist in nature, not applicable to aliens or corporations.

Question 48

Takings

Answer 48

The 5th Amendment, applied to the states through the 14th Amendment, prohibits the government from 1) taking; 2) private property; 3) for public use; 4) without just compensation, for any reasonable benefit. Just compensation is measured by FMV at the time of taking (relocating/moving costs not included)

Question 49

Possessory Taking

Answer 49

Happens when the government 1) actually appropriates; 2) destroys or permanently physically occupies the property; or 3) government permanently deprives the owner of all economic value, requiring land to be left substantially in its natural state. Mere zoning restrictions don't constitute total takings unless they deny the owner all economic benefit of the property.

Question 50

Regulatory Taking

Answer 50

Happens when the government rezones property and destroys all economic viability. A balancing between private and public interests will determine if such a taking happens (use Penn Central Factors).

Question 51

Penn Central Factors

Answer 51

Unviabiltiy is determine by evaluating: 1) the character of the regulation (degree of benefit to society an burden to the owner); 2) the economic impact on the landowner; and 3) the extent of interferene with investment-backed expectations.

Question 52

Takings Analysis

Answer 52

1) Analyze standing, State Action and 5th Amendment or 14th Amenment Takings clause rule 2) Proceed through constitutionality of the question (due process). Standard of review is rational basis for zoning variance.

Question 53

Zoning

Answer 53

States may enact statues to control land use uner the 10th Amendment.

Question 54

Commerce Clause

Answer 54

Congress has the power to regulate commerce with foreign nations, among the several states, and with the Indian Nations. This includes the power to regulate channels and instrumentalities of commerce, persons or things in interstate commerce, and economic activities that have a subsstantial effect on interstate commerce.

Question 55

Dormant Commerce Clause

Answer 55

The state cannot regulate interstate commerce if it is discriminatory or unduly burdensome. If a state law discriminates against out-of-state competition, it is invalid unless 1) the law furthers an important, non-economic state interest and there are no reasonable nondiscriminatory alternatives; 2) the state is a market participant; or 3) the government action involved is typically performance of a traditional government function.

Question 56

Delegation of Legislative Powers

Answer 56

Congress may delegate some legislative authority to the executive branch as long as Congress specifies an intelligible principle to guide the delegate.

Question 57

Establishment Clause

Answer 57

The government is prohibited from establishing or endorsing/supporting religion. Laws that discriminate againsst religion must satisfy Strict Scrutiny.

Question 58

Free Exercise Clause

Answer 58

Congress shall make no law abridging the free exercise of religion. Laws designed to interfere with religion must meet Strict Scrutiny. Laws of general applicability that cause unintentional burdens on religion are constitutional (General applicability, such as smoking peyote for religious reasons - no dice, it's a law, smoking peyote is still illegal)

Question 59

Determining Establishment/Free Exercise Clause

Answer 59

Free Exercise and Free Speech Clauses of 1st Amendment protect an indiviual engagin in personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression

Question 60

Free Speech

Answer 60

The government is limited in how it may regulate speech. Regulation must not be: 1) a prior restraint; 2) overbroad; 3) vague; or 4) determined by unfettered discretion.

Question 61

Prior Restraint

Answer 61

A prior restraint on free speech restricts speech before it occurs. Prior restraints are presumed unconstitutional except when: 1) a particular harm can be avoided; and 2) there are narrowly drawn, reasonable standards.

Question 62

Symbolic Speech

Answer 62

Non-verbal and non-written forms of communication that are protected under the 1st Amendment. These communications inculde the burning of the flag, wearing of particular clothes, etc., and are protected unless they cause a legitimate, direct threat to a person, group of people, or public good order and discipline.

Question 63

Content Based Restrictions

Answer 63

Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy Strict Scrutiny

Question 64

Content Neutral Restrictions

Answer 64

Government may regulate the time, place and manner of content neutral speech. Must satisfy Intermediate Scrutiny.

Question 65

Time, Place and Manner

Answer 65

The goernment's ability to regulate time, place an manner of speech varies wit hthe forum in which the speech takes place.

Question 66

Public Forum

Answer 66

An area that has traditionally been held open to the public where free speech is permitted (ex, public sidewalks). Government regulation of speech that is content-based must meet Strict Scrutiny, if content-neutral, Intermediate Scrutiny.

Question 67

Designate Public Forum

Answer 67

A designated public forum is one which is not historically open for public speech but can be opened at the government's discretion (ex. Public library meeting room where you need to reserve during business hours). Scrutiny requirements are same as Public Forum

Question 68

Non-Public/Limited-Public Forum

Answer 68

The government can limit free speech in non-public forums or limited-public forums as long as the regulation is viewpoint neutral and reasonable.

Question 69

Incitement of Illegal Activity Exception

Answer 69

A state cannot forbid advocating the use of force or of law violation unless it is directe at producing or inciting imminent lawless action and is likely to incite such action. Also, "fighting words" that are "true threats" are not protected when they are statements communicating intent to place an individual in fear of bodily harm.

Question 70

Content Regulation of Speech Exceptions

Answer 70

The government may limit language that incites illegal activity, obscenity, commercial speech, and defamation

Question 71

Obscenity

Answer 71

Obscenity is not protected speech. It is a description or depiction of sexual conduct that, taken as a whole by the average person, applying contemporary community standars 1) appeals to the prurient interest of sex; 2) portrays sex in a patently offensive way; andd 3) oes not have serious literary, artisitic, political, or scientific value using a national, reasonable person standard.

Question 72

Commercial Speech Exception

Answer 72

False advertising is not protected speech. Commercial speech in general is protected speech; however, may be restricted if the government passes legislation that: 1) is not misleaing or fraudulent; 2) serves a substantial government interest; and 3) is narrowly tailore to serve the substantial interest which is looked at by determining if there is a reasonable fit between the legislation's endd and the means chosen.

Question 73

Freedom of Association

Answer 73

The government may not prohibit or punish group memebership unless the law meets Strict Scrutiny.

Question 74

Taxing and Spending Clause

Answer 74

Congress has the power to tax and spend for the general welfare, are to condition states' receipt of federal funds so long as the condition is related to the purpose for which the funds are granted, and not unduly coercive. Congress' spending power is plenary and proper so long as the spening serves the general welfare and is not prohibited by the Constitution.

Question 75

Contracts Clause

Answer 75

The Contracts Clause limits states from enacting or repealing legislation that elimiates the state's pre-existing contractual burden. Any retroactive impairment of contract rights is thereby prohibited.

Question 76

Abortion

Answer 76

The Constitution does not confer a right to abortion. The authority to regulate abortion belongs to the legislature of the several states (Dobbs, 2002)

Question 77

Congressional Appointments

Answer 77

Congress shall not form executive agencies and appoint Congressmen or their staff to serve in those agencies. If appointments have administrative/enforcement powers, the President appoints the selectees who may require advise and consent of the Senate.

Question 78

Congress Authority

Answer 78

Congress can restrict SCOTUS appellate jurisdiction, but not original jurisdiction, which is established in the Constitution.

Question 79

One Person, One Vote

Answer 79

Theory that applies to most elections; however government can lmit the class of persons allowed to vote if the class of voters are the only persons affected by the vote.

Question 80

Article III Judges

Answer 80

These judges have life tenure and cannot be subject to a reduction in salary. If appointed by Congress in a tribunal, they are an Article I judge and have no such protections.

Question 81

State Action Against the Federal Government

Answer 81

A state may not sue the federal government without consent, absent some other exception, such as a federal officer acting outside the scope of their employment.

Question 82

Oaths

Answer 82

Requiring administration of an oath of office may be upheld if they require persons to uphold the Constitutional process.