Constitutional Law Flashcards
Supremacy Clause
Fed and State Law Conflict = federal ALWAYS wins
10th Amendment Police Power
ONLY states have this. Fed gov has NO police power
10th Amendment General Welfare Power
States can make laws for General welfare. Fed gov CANNOT do this
Commandeering
fed gov cannot require state to act.
Dormant Commerce Clause
state is passing law regulating a business, cannot discriminate against out of state business
Dormant Commerce Clause - On its Face Discrimination
SS applies, gov shows compelling interest
Incidental Discrimination
mid level scrutiny, must have and important gov interest and must not have an excessive burden on commerce
when can states discriminate against out of state business?
- when Congress lets them. 2. when state acts as a market participant AKA monopolizes industry
Full faith and credit
judgment on merits in one state are valid in another state
Original Jurisdiction
Congress may not enlarge or restrict the Original Jurisdiction of SCOTUS
Appellate Jurisdiction
Congress may enlarge or restrict
SCOTUS & Congress
Congress CANNOT tell SCOTUS what to do
Lower federal courts & Congress
Congress can create and direct new federal courts
What will stop case from going to federal court?
(1) Mootness
(2) Ripeness
(3) Standing
(4) Independent and Adequate State Ground
(5) Political Question/Justiciability
Federal Immunity
states CANNOT sue fed gov
- States CANNOT tax fed gov, but may tax people who work with fed gov
- States can tax private businesses
- Individuals cannot sue fed gov, except when fed gov consents via statute
State Immunity
fed gov and other states may sue individual state
- Fed gov CANNOT tax a state if a gov function
- Fed gov can tax a private business
11th Ammendment
citizens of one state cannot sue its own state or another state
i. Gov official may be sued
ii. Municipality may be sued
iii. If statute allows citizens to sue, may sue
Interstate Commerce - Balancing Test
Burden on interstate commerce outweighed by legitimate state interest
State Action
Government must be the one doing the discrimination
13th Amendment
Allows suit against private individuals for racial discrimination
Privileges and Immunities Clause
Discrimination based on RESIDENCY
15th Amendment
Racial discrimination on basis of voting
Equal Protection
Discrimination based on classes of people
Strict scrutiny
Race, alienage, and national origin. Gov has burden to show necessary to achieve COMPELLING state interest
Intermediate Scrutiny
gender, and illegitimacy; gov has burden to show it is substantially related to an important gov interest
Rational Basis
everyone else; P has burden to show not rationally related to a LEGITIMATE gov interest
Procedural Due Process
no person shall be deprived of life, liberty, or property w/o due process of law
Procedural Due Process Rights
Notice and Hearing if gov tries to take away jobs, license, benefits, and public education
Substantive Due Process
liberty rights/freedoms of EVERYONE
Fundamental Right
a. Travel Interstate
b. Vote
c. Privacy Rights – Strict Scrutiny
vi. Raise Family
d. Free Speech
Privacy Rights - Fundamental
i. Contraception
ii. Abortion – cannot place undue burden
iii. Marriage
iv. Procreation
v. Education (Private)
Abortion
cannot place undue burden
Non-Fundamental Rights
Rational Basis, everything that isn’t rational basis
State Due Process
14th Amendment
Federal Due Process
5th Amendment
Taking
Gov can take private property for public use as long as just compensation
Just Compensation
fair market value
Public purpose
private person can take property for public purpose
i. Diminished value of property
Also a taking
Establishment Clause
separation of church and state
Lemon Test
(1) secular purpose (2) cannot advance or inhibit religion (3) shall be no excessive entanglement
Free Exercise Clause
(1) Gov must be neutral (2) cannot break law in name of religion (3) look for gov INTENT vs affects practice of religion
Speech
Fundamental Right cannot ban, but can regulate
Content Based Regulation
gov says NO = strict scrutiny applies
Content Neutral Regulation
regulating time, place, and manner, okay if (1) Significant OR IMPORTANT gov interest and (2) leave alternative means of communication
Public Forum
significant or important gov interest w/ alt means
nonpublic forum
ads, reasonable related to legitimate gov interest
Obscenity
– (1) object person applying LOCAL COMMUNITY STANDARDS appeals prurient issues of sex (2) work depicts sex in a patently offensive manner (3) work acts serious literally, artistic, political, or scientific value
Clear and Present Danger
not protected, fighting words, harsh actions, to incite violence
Commercial Speech
if reasonable fit to a substantial gov interest and narrowly tailored
False/Misleading advertisements
not protected
Prior Restraint
gag orders, injunctions, before speech is published, unprotected
Unfettered Discretion
gov official choosing one form of speech over another
Overbreadth and vagueness
statute cannot be overbroad
Bill of attainder
fed or state gove passes a law punishing a named individual or group
Ex post facto
retroactively making something criminal, unconstitutional
Contracts Clause
only when a STATE impairs the right to enter into contract
