Constitutional Law

Question 1

Political Question Doctrine

Answer 1

Constitutional Violations Federal Cours will not Adjudicate

1. Republican form of government
2. President’s foreign policy
3. Impeachment and removal process
4. Challenges to partisan gerry mandering

Question 2

No Generalized Greivances Exception

Exception to Exception

Answer 2

Taxpayers have standing to challnege gov. expenditure pursuant to federal (or state and local) statutes as violating the Establishment Clause

Exception to Exception

1. grants of property to relgious institution
2. Federal government expenditures from general executive revenues
3. State tax credits that benefit relgious institutions

Question 3

Mootness Exceptions

Answer 3

1. Wrong capable of repeititon
2. Voluntary cessation (free to resume)
3. Class action suits: as long as one member has ongoing injury

Question 4

Commerce power

Answer 4

Commerce may regulate

1. channels of interestate commerce
2. Instrumentalities of interstate commerce
3. activities that have substantial effect on itnerstaet commerce

cannot regulate inactivity

Question 5

10th Amendment

Answer 5

1. Congress can’t compel state regulatory or legislative action

***can induce with strings, if expresslys stated, relate to prupose, and are not unduly coercive**

2. Congress may prohibit harmful commercial activity by state governments

Question 6

Congresss’ power under section 5 of 14A

Answer 6

1. May not create new rights or exapnd the scope of rights
2. may act only to prevent or remedy violations of rights recognized by court but must be proportionate and congruent to remedy constitutional violations

Question 7

Impeachment

Answer 7

1. Majority vote in house to impeach
2. conviction in senate requires a 2/3 vote

Question 8

Presidential immunity

Answer 8

1. abosulte immunity to civil suits for money damages while in office but not for actions that occurred prior to taking office
2. executive privilege for prsidential papers and conversations but such privilge must yield to other important government interests

Question 9

Federalism

Implied preemption

Answer 9

1. Mutually exclusive
2. Federal objective
3. Legislative intent

Question 10

State Taxation of Interestate Commerce

Answer 10

1. may not use tax systems to help in-state businesses
2. May ony tax activities if there is a substantial nexus to the state
3. State taxation of interstate businesses must be fairly apportioned

Question 11

Government Action

Congress may apply constitutional norms to private conduct

Answer 11

1. 13A can be used to prohibit private race discrimination
2. the commerce power can be used to apply constitutional norms to private conduct
3. congress cannot use section 5 of the 14A to regulate private behavior

Question 12

Government Action

Entanglement Exception

state action where

Answer 12

State Action

• Courts cannot enforce racially restrictive covenants
• governemnt leases premises to a restuarant that racially discriminates
• when a state provies books to schools that racially discriminate
• private entitity regulates interscholastic sports within a state

Question 13

Government Action

Entanglement Exception

NO state action where

Answer 13

1. a private school that is 99% funded by the government fires a teacher because of her speech
2. when the NCAA orders the suspension fo a basketball coach at a state university
3. private club with a liquor license from the state racially discriminates

Question 14

Bill of Rights not incoporated into 14A w/ regard to

Answer 14

1. 3A right to not have soldier quartered in a person’s home
2. 5a right to grand jury indictment in criminal cases
3. 7a right to jury trial in civil cases
4. 8A right against excessive fines

Question 15

Procedural due process

Deprivation of liberty

Answer 15

1. before adult can be civilly committed must be notice and a hearing
2. when parent institutionalizing a child, only a screening by a nuetral fact finder
3. Harm to reputation by itself is not a loss to liberty

Question 16

When is government liable under due process

Answer 16

1. negligence is not sufficent for deprivation
2. Must be intentional government action or at least reckless action for liability to exist
3. In emergency situations governemnt is liable only if conduct “shocks the conscience” [which requires intent of causing that harm]
4. Government’s failure to protect people from privately inflicted harms does not deny due process

Question 17

What procedures are required for procedural due process?

Answer 17

Balance

1. importance of the interest to the individual
2. ability of additional procedures to increase the accuracy of the fact-finding
3. government’s interests

Question 18

The Contracts Clause

Answer 18

1. Applies to only state or local interference with already existing contracts [not to federal government or future contracts]
2. State or Local interference: intermediate scrutiny–does the legislations subsantially impair party’s right and is reasonably and narrowly tailored of promoting an important and legitimate public interest?
3. State or local interference with government contracts–strict scrutiny

Question 19

Ex Post Facto Clause

Answer 19

1. Does not apply in civil cases
2. punishes conduct that was lawful when it was done or increases punishment for a crime after it was comitted
3. Retroactive civil liability only need meet a rational basis test

Question 20

A Bill of Attainder

Answer 20

Law that directs the punishment of a specific person or persons without trial

Question 21

Fundamental Right of Privacy (under substantive due process clause) includes

Answer 21

1. The right to marry
2. The right to procreate
3. The right to custody of one’s children
4. The right to keep the family together
5. The right to control the upbringing of one’s children
6. The right to purchase and use contraceptives
7. The right to abortion
8. protects a right to engage in private consensual homosexual activity
9. Right to refuse medical treatment
10. no right to physician-assisted death

Question 22

Fundamental Right of Privacy

The right of abortion

Prior to viability

Answer 22

State may not prohibit abortions but may regulate abortions so long as they do not create undue burden on the ability to obtain abortions

• 24-hour waiting period NOT undue burden
• licensed physicians requirement NOT undue burden
• prohibition of “partial birth abortions” not an undue burden
• Requirement that physicians have admitting privileges at a hospital within 30 miles and that a facility have “ambulatory surgical facilities” is an unconstitutional undue burden

Question 23

The right of abortion

After viability

Answer 23

states may prohibit abortions UNLESS necessary to protect the woman’s life or health

Question 24

Right to abortion

the government has no duty to

Answer 24

subsidize aboritons or provide abortions in public hospitals

Question 25

Right to abortion

Spousal consent and notification laws are

Answer 25

unconstitutional

Question 26

Right to abortion

Parental notice and consent laws for unmarried minors

Answer 26

State may require parental notice and/or consent for an unmarried minor’s abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor’s best interests or that she is mature eough to decide for herself

Question 27

The right to refuse medical treatment

Answer 27

1. Competent adults have the right to refuse medical treamtent, even life-saving medical treatment
2. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
3. A state may prevent family members from terminating treatment for another

Question 28

The Right to Travel

Answer 28

1. Laws that prevent people from moving into a state must meet strict scrutiny
2. durational residency requirements must meet strict scrutiny
3. Restrictions on foreign travel need meet only the rational basis test

Question 29

The Right to Vote

Answer 29

1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regualtions fo the electoral process to prevent fraud only need to be on balance desirable
2. One-person-one-vote must be met for all state and local elections. It is constitutionally permissible for districting to be based on total population; it does notneed to be based on eligible voters
3. At-large elections are constitutional unless there is proof of a discriminatory purpose
4. The use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes without standards in a presidential election violates equal protection

Question 30

Equal Protection

Educational institutions using race

Answer 30

Educational institutions may use race as one factor in admissions decisions to help minorities. They must show, however, that there is no race neutral atlernative which could acheive diversity.

Additionally educational institutions may not add points to applicants’ admissions scores based on race

***public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met***

Question 32

How should gener classifications benefitting women be treated?

Answer 32

1. Gender classifications benefiting women that are based on role stereotypes will not be allowed
2. Gender classifcations that are designed to remedy past discrimination and differences in opportunity will be allowed

Question 33

Alienage Classifications

Answer 33

1. Generally, strict scrutiny
2. only rational basis is used for alienage classifications that concern self-government and the democratic process
3. Only a rational basis test is used for congressional discrimination against aliens
4. It appears that itnermediate scrutiny is used for discrimination against undocumented alien children

Question 34

Symbolic Speech

Answer 34

Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communicatio is no greater than necessary to achieve the government’s purpose

Ex: flag burning protected, draft burning not protected; local gov. may prohibit nude dancing; burning a cross is protected unless done with intent to threaten; contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional

Question 35

Incitement of illegal activity

Answer 35

The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegaltiy

Question 36

Obscenity and sexually oriented speech

(test)

Answer 36

1. material must appeal to the prureint intereset (state/local standard)
2. material must be patently offensive under the law prohibiting obscenity (state/local standard)
3. Taken as a whole, the material must lack serious redeeming artisitic, literary, political, or scientific value (national standard)

Question 38

Obscenity and sexually oriented speech

(examples)

Answer 38

1. Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
2. child porno may be completely banned, even if not obscene (child must be used)
3. government may not punish private possession of obscene materials; but the government may punish private possession of child porno
4. Government may seize the assets of businesses convicted of violating obscenity laws
5. Profane and indecent speech is generally protected by 1A
   
   1. exception: broadcaset media, school suspension

Question 39

Commercial speech

Answer 39

1. Advertising for illegal activity, and false and deceptive ads not protected
2. true commecial speech that inherently risk deception can be prohibited
   
   1. government may prevent professoinals from advertising or practicing under a trade name
   2. may prohibit attorney (not accountants), in-person solication fo clients for profit
3. other commercial speech if intermediate scrutiny (narrowly tailored, not least restrictive)

Question 40

Freedom of Assocaition

Answer 40

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership, must be proven that the person:

1. actively affiliated with the group
2. knowing of its illegal activities; and
3. with the specific intent of furthering those illegal activities

• Laws that require disclosure of group membershipo, where such disclosure would chill association, must meet strict scruiiny
• Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity

Question 41

Free Execise clause

Answer 41

**cannot be used to to challenge a neutral law of general applicability (peyote)**

• The government may not deny benefits to individuals who quit their jobs for religious reasons
• Government may not hold a religious institution liable for the choices it makes as to who will be its ministers
• Denial of benefits to a religous school that are provided to a secular school must meet strict scrutiny

Question 42

Establishment Clause

Answer 42

1. Secular purpose
2. effect must be netiher to advance or inhibit religion
3. must not be excessive entanglement with religion