Constitutional Law

Question 0

Advisory opinions

Answer 0

Not allowed
Federal courts may only decide actual cases and controversies
They require a real dispute between adverse parties and a judgment that binds

Question 1

The juridical power is a limited power t/f

Answer 1

True

Question 2

Ripeness

Answer 2

A plaintiff must allege an actual harm or the immediate threat of a harm
Generally no ripeness where significant events necessary to sharpen the issues have not yet occurred

Need a bleeding plaintiff

Ex. Proposed law, dead letter statute

If looking for a way to dismiss a case against a clearly unconstitutional law, think ripeness

Question 3

Mootness

Answer 3

A case will be dismissed as moot unless there exists an actual, live, controversy between the parties at all stages of litigation including appeal.
Ask: can the judge change the position of the parties or has the problem solved itself?

Question 4

A case is not moot if:

Answer 4

1. The injury is capable of repetition to that plaintiff yet because of its nature it will evade review because there is an internal time limit ( pregnant woman challenging abortion statute)
2. The case is brought as a class action and the issues remain alive at least in one member of the class
3. Superficially the case appear moot buy there are collateral consequences or some continuing issues between the parties (challenge to criminal conviction and already served sentence but may still face a loss of civil rights)
4. The defendant has ceased the harm but is free to return to his old ways. Voluntary cessation of illegal activity. There must be no reasonable likelihood that the defendant could return to his old ways

Question 5

Standing

Answer 5

General rules:
1. Plaintiff has actual concrete injury in fact ( almost anything counts) buy cannot be a mere ideological harm

2. Causation. Ask: on the facts is the harm fairly traceable to the government’s actions? Did the government cause the harm the plaintiff is complaining about?
3. Redressability ask: can the court do something to remedy the injury? Can there be relief? (Award money damages, an injunction)

Question 6

Standing of organizations and associations

Answer 6

An organization has standing to sue for injury to itself but it may also sue for injuries to its members if:

1. A member or members would have standing and
2. It’s members injury is related to the purpose of the organization and
3. There is no reason that would require participation of individual members in the suit (ex. Award of damages to different people) usually an injunction sought

Question 7

Standing to raise the right of others

Third party standing

Answer 7

A party has standing to raise her own right and may not raise the rights of others, except a party may raise the rights of someone else if:

1. The party has suffered some actual injury himself and
2. There is a special relationship between the party and the third person and there is some hindrance to the third party raising his own rights. Ex dr raises parie t rights

Question 8

Citizen standing

Answer 8

No standing just because “any citizen” is mentioned in the statute. This means any citizen who has been injured. Just because a statute offends you, doesn’t mean it injured you

Question 9

Taxpayer standing

Answer 9

Taxpayers sue to challenge own tax liability but federal taxpayers have no standing as taxpayers to challenge government spending

Exception: standing if:

1. Laws enacted under Congress’s taxing and spending powers, not an executive or administrative action and
2. Exceeding a specific constitutional limit on taxing and spending ( generally an establishment clause challenge)

Question 10

Legislator standing

Answer 10

May challenge acts that cause personal concrete injury but generally no standing to challenge laws which were properly enacted but he beloved they are unconstitutional

Question 11

Supreme Court review of state court. Judgments: appellate review

Answer 11

Scotus may review the decisions of state courts if and only if

1. The case involves a matter of federal law and
2. It is a final judgment and
3. Is from the highest state court authorized to hear the case and
4. There is no independent and adequate ground on which the state court decision is based

Question 12

Independent and adequate state ground

Answer 12

Independent if: state law does not depend Oman interpretation of federal law or incorporate a federal standard
Ex. State court mixes state and federal ground of decision and it is unclear if the decision rest of state or fed law
Adequate state ground: if not matter how the federal issue in the case is decided the outcome will still be the same under the resolution of the state law issue

Question 13

Doctrine of abstention

Answer 13

A federal court will decline to hear a case challenging a state law if it involves a constitutional challenge to the state law but the meaning of the state law is unclear, or theater is already pending befor the state judicial or administrative tribunals

Comity or respect for state systems

Question 14

Political question doctrine

Answer 14

Federal court will not decide political questions, which as constitutionally committed to another branch of government to decide or are beyond the competence or enforcement capability of the judicial branch

Question 15

Relatively few questions are political questions what are some examples

Answer 15

Republican form of government challenge: the guarantee clause. Fourth amendment

True foreign affairs or military command decisions

Impeachment procedures

Seating of delegates at a national political convention

The election and qualification of members of congress ( age, citizenship, residency)

Procedures to amend the constitution

Question 16

The eleventh amendment

Answer 16

A private party cannot sue a state in federal court unless the state consents (unmistakeably clear) or congress clearly says so to enforce 14th amendment rights

A private citizen may sue a state officer in their individual capacity for damages anday sue state officers for injunctions against future unconstitutional action be the state

Question 17

For the 11 th amendment to be a bar

Answer 17

1. Plaintiff must be a private party not another government
2. The defendant must be a state not a local government or municipality
3. The suit must be for money to be paid out of the state treasury or for an injunction or declaratory releof where the state is the Named party

Only bars suits in federal court, can sue a state in state court. States may raise sovereign immunity in their own courts and congress has no power to subject nonconsenting states to private suits for Damages in either federal or state courts

Question 18

Legislative power

Answer 18

All federal power must relate in someway to an express grant of power in the constitution.
All powers not granted to the federal governing are reserved for the states

Question 19

Necessary and proper clause

Answer 19

Supplements express powers

Allows Congress to use all means convenient and useful to carry out the enumerated powers

Not an independent power and must be combined with another congressional power

Question 20

Express/ specific/ or enumerated powers of congress

Answer 20

Admiralty
Citizenship
Bankruptcy
Federal property
Patents and copyrights
Post offices
Coining money
The territories and dc
War
Raising and supporting army

Question 21

Wrong answers on multistate For Congressional powers

Answer 21

Congress police power
Congress power to act for the general welfare
The separation of powers
The necessary and proper clause standing alone

Question 22

The commerce power

Answer 22

The chief source of power for Congress to regulate and it may regulate almost anything

Regulation includes setting rules standards and rates and promoting prohibiting and punishing behavior

Can regulate not only obvious interstate commercial activities such as moving goods across state lines it may also regulate purely local and intrastate activities by themselves Or repeated by others (cumulative effect doctrine) and substantially affecting interstate commerce

Question 23

Limits of the reach of the commerce clause

Answer 23

Congress cannot tell states what laws to enact

Congress cannot commandeer state regulatory agencies and force them to enforce federal law

Congress cannot criminalize behavior which does not in any way relate to commercial or economic activity

Question 24

The taxing power

Answer 24

Congress may tax-and-spend for the general welfare

Congressman use the taxing power to regulate and prohibit behavior so long as the statute is capable of raising some revenue ex. Prohibitive tax on gambling or goods made by child labor

Question 25

How can Congress make states do what it wants them to?

Answer 25

1. Persuade them with other laws
2. Threaten them with preemption
3. Bribe with money

Question 26

The spending power

Answer 26

The spending power is the chief source of power to bribe states to do with the federal government wants them to do

a court will enforce a condition against the state which has accepted federal funds if:

1. It is enacted for the general welfare
2. Does not violate individual liberties
3. Is reasonably related to legitimate federal interests
4. Is clear that the money is conditioned on the state taking a certain action but the state does have a legitimate choice

Question 27

The 13th amendment

Answer 27

Outlawed slavery

Gives Congress the power to enforce the amendment

Congress can pass all laws applicable to anyone whether private or governmental ( no state action requirement) not just to eliminate slavery per se but also to end all badges and incidents of slavery such as racial discrimination

Question 28

Congress has the power to implement the provisions of the 14th amendment

Answer 28

Due process and equal protection

Laws passed under the 14th amendment apply only to government action not acts of private parties

Congress only has the power to enforce or remedy the rights of the 14th amendment as they have been defined by the courts it does not have the power to redefine or create such rights

Question 29

The 15th amendment

Answer 29

Protects the right to vote against any federal or state government racial discrimination

Gives Congress the power to enforce the amendment

Congresses power has been expansively interpreted and actions such as providing federal officers to register voters in local elections have been upheld

Question 30

Delegation of congressional power

Answer 30

Congressay Broadly delegate legislative powers to administrative agencies So long as Congress sets forth some intelligible principle or some standards to guide the exercise of the delegated power

Agency must act within the scope of authority given to it by the federal statute

Question 31

The legislative veto

Answer 31

Congress may not reserve for itself a one house two house or committee veto over particular acts taken by the executive branch pursuance to the delegation of power

It must pass new legislation by both houses and signed by the president. Full legislative process

Question 32

Congressional immunities

Answer 32

The speech and debate clause

Members of Congress may not be prosecuted for punished either civilly or criminally for their official or legislative acts

Legislative acts are very narrowly defined to include acts integral to the legislative process such as actions on the floor voting and committee work

Does not include acts such as communicating with constituents redistribution of materials prepared in the legislative process or bribery

Question 33

The executive power: domestic

Answer 33

1.The president has the duty and power to enforce or carry out the laws Congress

2. The president may not make a law only carry out except if there is an emergency and Congress has not said no to the particular act
3. The president must carry out congressional directives ie impoundment of funds
4. The president may sign or veto legislation but may not Beato some parts but not others or a line-item veto
5. The president has exclusive power to pardon for federal offenses
6. The president has the power to appoint and remove executive branch officials though Congress must approve

Question 34

Appointing and removing executive branch officials

Answer 34

Congress may never directly appoint executive branch officials

Congress may appoint persons who work only for Congress and do not take action or make decisions on behalf of the US government

Congress may limit the presidents powers of appointment in two ways:

1. As to principal officers such as ambassadors judges and cabinet heads the Pres. appoints only with the advice and consent of the Senate and
2. As to inferior officers (those who have to answer to another or have limited duties or jurisdiction). Congress may vest the appointment in the president alone or in department heads or in the judiciary

Congress may never directly remove executive branch officials except through impeachment.

May limit the presidents power to remove for example Congress may provide that the president may remove certain officials only for cause if it does not substantially interfere with the president authority

Congress may not give executive powers to person it may hire and fire

Question 35

War and foreign affair powers

Answer 35

Congress alone has the power to declare war

Congress also retains purse strings and may refuse to pay for military operations

Pres. in addition to conducting military operations, may repel sudden invasions and unless Congress has specifically said no take emergency action to protect the lives and property of United States citizens

The president may act without any approval of Congress as the chief foreign-policy spokesman of the government. Receive ambassadors or meet with heads of state

Question 36

Agreements with foreign governments

Answer 36

When presidencies to enter into agreement some form of congressional approval is required

Treaties required two thirds Senate approval

Executive agreements require Congress acquiescence and actual dis approval will knock it out

Conflicts between treaties or executive agreements and later legislation: Later legislation prevails

Question 37

Presidential immunities

Answer 37

Pres. has a presumptive privilege not to disclose presidential communications. A balancing test is used. generally a president’s claim of confidentiality will yield to a specific need for evidence in a criminal trial

The president is absolutely immune from civil suits for damages for any presidential acts such as wrongful firing of an employee. Injunctions are okay. Prepresidential asked do not count

Question 38

Impeachment

Answer 38

Majority vote is required for the articles of impeachment by the house

Trial is by the Senate with a two thirds vote for conviction

If convicted removal from office is immediate

Question 39

Supremacy of federal power over the states

Answer 39

The Constitution operate on states not as a source of power but has a limit on what states can do

Constitution expressly forbids states from taking certain acts such as coining money

The Constitution prohibits states from exercising powers which are inherently federal such as the conduct of foreign relations and immigration.

States have no power to deal with immigration establish requirements for federal citizenship declare war or conduct foreign-policy

Question 40

Supremacy and preemption

Answer 40

Federal law preempts or prevails over any inconsistent state law

Express preemption: If Congress says that a federal law displaces or ousts state law in an area than the state law is preempted

Implied preemption: If Congress does not specifically preempt a law state law is preempted if it is inconsistent with federal law or it is impossible to comply with both, Or Congress has occupied the field

Question 41

States may not sue regulate or directly tax the federal government without consent true false

Answer 41

True but not vice versa

Question 42

Privileges and immunities clause of article four

Answer 42

Article 4 is also the source of the full faith and credit clause

States may not discriminate against out-of-state citizens corporations or aliens with respect to commercial activities or to the enjoyment of civil liberties

States may require in-state residency for their own employees and may charge out of stators for mere recreational activities such as a hunting license or tuition benefits

Question 43

The negative or dormant commerce power

Answer 43

Where Congress has not acted’s day lame still be invalid if it discriminates against or unreasonably burdens interstate commerce

Make sure there is no issue of preemption only the invalidity of a state law

Question 44

Discrimination in negative commerce power

Answer 44

The strongest arguments strike down the state law under the negative commerce clause is that it discriminates against interstate commerce in one of two ways:

1. Laws that discriminate for the purpose of favoring in-state commerce are always per se invalid
2. Laws that discriminate for the purpose of promoting health or safety are in valid unless the state shows that it had no reasonable nondiscriminatory means to achieve its police power objective ( valid regulation on bait fish importation)

Question 45

Unreasonable burden in negative commerce clause

Answer 45

Even if the state lines nondiscriminatory it may still be invalid if it imposes an unreasonable burden on interstate commerce

This is a balancing test the court will weigh the actual effects of the law on the free flow of commerce against the states interests served by the law

Even though most laws will be upheld laws that produce marginal benefits which materially obstruct the movement of goods across state lines will be invalidated. I.e. train length regulations in Arizona

Question 46

When the limits of the negative commerce clause do not apply or are modified

Answer 46

Congressional approval

The market participant doctrine and government subsidies

The 21st amendment

Question 47

Market participant doctrine and government subsidies in the negative commerce clause

Answer 47

Whenever a state is acting not as a regulator but as a buyer or seller of commodities or services the negative commerce clause does not apply to its actions and the state may discriminate or burden interstate commerce. Cannot impose conditions down stream
Example of state owns its own cement plant and sells to its own residents first

Estate does not violate negative commerce clause if it prefers its own citizens or companies with its government subsidies

Question 48

The 21st amendment in the Negative commerce clause

Answer 48

The 21st amendment gives the states the power to regulate the possession sale and transportation of intoxicating liquors within their borders

States have more power to burden or regulate liquor than any other article of commerce. They cannot still discriminate against out-of-state liquor

Question 49

Step-by-step analysis of the validity of a state or local law regulating commerce

Answer 49

1. Is there a federal law and the picture that may preempt inconsistent law
2. If no federal law does the state law discriminate against interstate commerce. Law is invalid unless state pursuing a legitimate health and safety objective and has no alternative means or if the state is granting subsidies or acting as a market participant
3. If the law is nondiscriminatory determine if it is unreasonably burdensome. Look for disproportionate cost on the free flow of interstate goods

Question 50

State taxation on interstate commerce

Answer 50

Discriminatory taxation is invalid

Nondiscriminatory taxation if not unreasonably burdensome is upheld

Congress can preempt or authorize almost any state law regarding tax

Tax must meet three requirements

1. It must be nondiscriminatory
2. The activity person or thing text must have a substantial or Nexis connection to the state. there must be an actual presence of the state
3. The text must not be unreasonably burdensome in particular it must be proportioned to the company’s business done in the state or the benefits received in the state. No flat taxes

Question 51

Incorporation of the Bill of Rights against the states

Answer 51

The Bill of Rights protections apply Against the national or federal government not the states

Most Bill of Rights protections but not all also apply against state and local governments through the due process clause of the 14th amendment. They have been incorporated into the meaning of due process of law because they are fundamental to the scheme of justice

Question 52

The requirement for state action and constitutional rights

Answer 52

Except for the 13th amendment all other constitutional rights are protections only against the government or state actors

For example one enjoys free-speech and equal protection rights only against the government not individuals or non-governmental entities

However the behavior of private persons or businesses may be regulated by statutes

Question 53

Obvious state action

Answer 53

When a state passes a law or permits is officials such as police officers to take action this is state action

This is true even if the government officials are acting in violation of the law so long as they’re closed with the authority or acting under color of the law

Question 54

Private conduct as state action

Answer 54

The public function doctrine. When a private entity performs a governmental function traditionally and exclusively performed by the government such as conducting elections to fill public offices unaccented deemed a state action and all constitutional guarantees apply. Narrowly applied

Significant state involvement with private conduct. The nature of the relationship between the private actor in the state may lead to a finding of state action.

When the state and private actor are working together as partners or joint ventures such that the derived benefits from the action of the other than state action may be found

The state actively affirmatively and significantly commands encourages or approves the private actors challenge behavior Thursday action

The mere fact that the state licenses regulates funds or confers significant benefits on a person is not enough to establish the action

Question 55

The contracts clause

Answer 55

State may not by legislation substantially impair pre-existing contracts unless the law serves an overriding public need and is a reasonably and narrowly tailored means of meeting that need

CONGRESS is not bound by this, State only!

Question 56

ex post facto law

Answer 56

any legislation that:
1. makes the conduct that you committed yesterday a crime today
2. increases the punishment after a crime has been committed
3. reduces the elements of a crime or the evidence required for conviction after the crime is committed
examples: megans laws, 3 strikes rule
neither congress nor the states (or local govs) may pass this type of law.

Only applies to Criminal statutes

Question 57

Bills of attainder

Answer 57

attainder means taint
prohibits any federal or state legislation that inflicts punishment, civil or criminal, on named individuals or ascertainable members of a group without a judicial trial

Question 58

procedural due process

Answer 58

concerns how the government acts
if the government deprives you of a life, liberty or property interest, it must follow the procedures to ensure that it is acting fairly and accurately

this requires: notice and a hearing

applies to adjudicative type acts, NOT legislation

Question 59

notice requirement in procedural due process

Answer 59

reasonably calculated to inform the person of the action against him

Question 60

procedural due process steps

Answer 60

was there a deprivation of a life, liberty, or property interest?
what process is due?

Question 61

what is deprivation under the procedural due process?

Answer 61

an intentional, not merely negligent act

Question 62

what is a liberty interest under procedural due process?

Answer 62

a physical liberty, loss of legal rights, statutory or constitutional

mere injury to one’s reputation is not a liberty interest

Question 63

what is a property interest in procedural due process?

Answer 63

1. conventional real and personal property, tangible and intangible
2. governmental benefits such as welfare payments, the right to attend school and government licenses BUT have to actually be receiving the benefits, applicants do not count
3. government employment

key concept is Entitlement: ned more than a mere expectancy. entitlement to government employment is there is a state law, policy, contract, or agreement that the employment will not be terminated except for cause

Question 64

signaling words for mere expectancy

Answer 64

probationary, provisional, temporary, non civil service, non tenured

Question 65

what process is due under procedural due process?

Answer 65

notice and a hearing, usually the hearing must come before the notice but if there is a significant need to act first, then this can be reversed (immediate removal of a police oficer who committed a felony, removal of children in abusive home)
3 factors are balanced to determine if the procedure is adequate:
1. nature of individual interests at stake
2. likely to lead to a mistake; and
3. government interest in following the procedure

Question 66

access to court for indigents

Answer 66

waiver of filing fees for indigents will be required if charging the fee would result in the denial of a fundamental/ constitutional right
not waived for bankruptcy

Question 67

the takings clause

Answer 67

neither the federal governemnt not the states may take property without just compensation
federal government, under 5th amend and states under 14th

any taking of property (eminent domain) must be for a public use, meaning any legitimate governmental goal and just compensation must be paid (fair market value at the time of the taking)

Question 68

what is a taking?

Answer 68

1. physical invasion or occupation: no matter how tiny or temporary
2. regulatory taking: regulations that restrict a property owner’s use of property such as zoning laws are not takings as long as the regulation reasonably advances a legitimate state interest and leaved economically viable use for the property
3. conditional permits: sometimes the government will require certain conditions to me met in order for a property owner to build upon of alter property. as long as there is a rough proportionality ot connectedness between the impact of the proposed development and the condition it is valid

Question 69

14th amendment

Answer 69

privileges and immunities of national citizenship, equal protection and due process

priviledges and immunities:most of its protections are protected elsewhere
it has become basically a dead letter law
BUT it does protect the right to become a citizen of any state and once a bonafide resident to enjoy the same rights given to any other resident

Question 70

strict scrutiny

Answer 70

the government must prove that the law is necessary to achieve a compelling interest. there is no presumption of constitutionality

Question 71

intermediate or mid level scrutiny

Answer 71

the government must prove that the law substantially serves an important interest, again no presumption of constitutionality

Question 72

the rational basis test

Answer 72

minimum scrutiny: the plaintiff must prove that the law lacks a rational basis and is unrelated to any legitimate objective. constitutionality is presumed

Question 73

equal protection:how to know the basis on which a law classifies?

Answer 73

based on race, alienage and national origin. or gender and illegitamacy and the law must intentionally and purposefully dicriminate on one of these basis

Question 74

how to show intentional or purposeful discrimination under the 14th amendment?

Answer 74

1. the law intentionally discriminates on its face
2. the law is neutrally written but intentionally discriminates as applied

BUT it is not enough to show that a neutrally written law has a disproportionate impact or effect, there has to be purposeful discrimination. i.e. that discrimination was a motivating factor in the governments action

Question 75

Race or Ethnic discrimination

Answer 75

strict scrutiny is applied

even laws which purport to treat race equally (banning all inter racial marriage) are struck down

Question 76

affirmative action-favor racial minorities

court ordered remedies

Answer 76

courts are empowered to use race based remedies to redress pase de jure discrimination but the scope of the remedy is limited to the scope of the violation
ex. when integrating schools, the court ordered assignments of pupils based on race and a bus system to get them there

Question 77

voluntary affirmative action plans

Answer 77

government agencies can have a compelling interest in specifically correcting their prior discrimination against minorities
has to be a narrowly tailored plan, cannot just make up for past societal discrimination

Question 78

racial preferences in University admissions

Answer 78

having a diverse student body is a compelling interest but narrow tailoring is required, it can only be a factor when considering admission, cannot be a strict set aside

Question 79

discrimination based on alienage

Answer 79

non citizens of the US
when applied to congress: rational basis because congress is given broad powers to control immigration and naturalization
when a state or local government: strict scrutiny except states may require US citizenship for government policymaking or policy implementing positions and police officers, teachers and jurors

Question 80

discrimination based on illegitimacy

Answer 80

intermediate scrutiny except in intestate succession, there is a substantial state interest in the just and orderly disposition of property at death and laws taking illegitimacy into account are valid as long as the illegitimate has reasonable time to establish paternity

Question 81

discrimination based on gender

Answer 81

intermediate level scrutiny
men and women can claim protection against unequal treatment
most gender discriminatory laws are struck down unless:
1. bona fide affirmative action but the state must actually prove that a specific program that makes up for past discrimination
2. “real differences” between men and women. such as male on draft and statutory rape laws, (only men can go into combat and only women have the natural deterrence of pregnancy)

Question 82

fundamental rights

Answer 82

some form of strict scrutiny or heightened scrutiny
voting
interstate travel
privacy
NEW: 2nd amendment right: to have a handgun in home for self defense

Question 83

what does the right of privacy include?

Answer 83

CAMPER
contraception: use and buy
Abortion
Marriage
Procreation
Education (private education)
Relations (familial)
and the right to possess obscenity in your home

Question 84

abortion right

Answer 84

1. prior to viability, the government may not impose any undue burden on the woman’s choice to terminate a pregnancy
   an undue burden i s a substantial obstacle such as husband consent, publicizing names of persons seeking abortions or banning common or safe procedures
   not undue burden to require a 24 hour waiting period or viability tests or to ban partial birth abortions, or for minors to require parental consent or judicial by pass. it is never an undue burden for the government to refuse to finance an abortion
2. after viability, the government may regulate substantially or prohibit abortion so long as there is an exception to save the life of the mother or preserve her significant health interests

Question 85

familial relationship right

Answer 85

rights of parents to raise their children, right to maintain a relationship with your child, right to live together as a family

Question 86

right to refuse medical treatment

Answer 86

a competent adult person has the right to refuse medical treatment but the court tends to apply a balancing test and weight the states reasons for intervening against the individuals liberty so a state can require vaccinations or clear and convincing evidence that an unconscious patient actually wanted her life sustaining treatment to be withdrawn

Question 87

right to vote and participate in the political process

Answer 87

states can prescribe reasonable residence, age, and citizenship qualifications for voting

one person one vote/ fair apportionment
in all state and local elections voting by districts must be apportioned to guarantee one person one vote but in interest of maintaining political subdivisions and relatively compact districts deviations up to 16% have been permitted if the state proves the need for the deviation
In Federal elections greater precision is demanded and courts have invalidated deviations under even 1%

Question 88

racial Gerrymandering

Answer 88

strict scrutiny: the objective is to dilute minorities
but if the objective is to enhance the vote, strict scrutiny is still applied but it can be upheld if it is only one factor in the decision

Question 89

political gerrymandering

Answer 89

to attack: have to show the lines drawn were intended to lock out the opposing party over time AND that they are likely to result in a lock out, this is almost impossible to show

Question 90

right to interstate travel

Answer 90

right to move from state to state and state laws cannot severely burden such a migration

1. durational residency requirements: usually requires newcomers to wait a period of time before receiving certain governmental benefits: if the requirements are necessary, then most laws will be struck down, if not then they can be upheld
2. laws that create a fixed or permanent distinction among residents: one you are a resident, you have to get the benefits that every other resident gets

Question 91

vagueness

Answer 91

if a statute is vague, it is unconstitutional on its face if a person with common intelligence could not know what behavior is prohibited.
1st amendment protection because the danger is self censorship
ex. a crime to operate in gangs

Question 92

overbreadth

Answer 92

unconstitutional if it prohibits substantially more expression than is necessary
ex. all fist amendment rights banned in airports
a law that bans nudity in drive-in movies

Question 93

prior restraints

Answer 93

enjoins speech before it is uttered as opposed to punishing it afterwards
only allowed if it is necessary to prevent direct, immediate, and irreparable harm
ex. gag order on press before a court case in a small town

Question 94

freedom of speech

Answer 94

the government may not restrict a persons opinion, message or ideas unless the speech falls into a special category of unprotected expression or the government shows a compelling need. this exacting scrutiny

Question 95

content control

Answer 95

content protection includes the freedom not to speak and symbolic expression if the government is aiming at the message of the symbolic act
the government cannot make you carry a message, struck down flag desecration statutes

Question 96

time, place, and manner restrictions

Answer 96

if the government regulation does not aim at content but affects expression only indirectly as a by product of regulating other conduct such as designating where you can march and whether you may use a bullhorn it will be judged at a more lienient time place and manner standards

Question 97

three requirements of time place and manner controls

Answer 97

1. content neutrality: there should be little to no discretion to pick and choose who the law applies to
2. Substantial Alternative Opportunities for the speech to take place. Ex. generalized ban on picketing is too broad and invalid but a ban on picketing at a single residence is ok
3. law narrowly serves a significant state interest: ex. prohibiting overnight sleeping in a park across form the white house interest is in maintaining the parks

Question 98

exceptions to the usual content rules

Answer 98

1. speech inciting immediate lawless or violent behaviors:
2. fighting words or hate speech; true threats
3. obscenity
4. libel and defamation and invasion of privacy: tort
5. Commercial speech

Question 99

incitement language

Answer 99

1. is intended to incite
2. is in fact likely to incite imminent lawlessness
   Distinguish: the hostile audience problem: a speaker may not be stopped unless the crowd’s hostility presents an imminent danger of uncontrolled violence

Question 100

Fighting words or true threats

Answer 100

fighting words are words that by their very utterance inflict injury or tend to incite an immediate breach of the peace BUT they are very narrowly defined
but many laws banning fighting laws are struck down as overbroad or vague
true threats are statements where the speaker intends to communicate a serious expression of intent to committ unlawful act of violence to particular individuals or groups

Question 101

obscenity

Answer 101

may be criminally proscribed and completely prohibited if it meets all three requirements:

1. the average person, applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest (shameful or morbid sexual)
2. the work depicts or describes in patently offensive way, sexual conduct specifically defined by the applicable state law and
3. the work taken as a whole lacks serious literary, artistic, political, or scientific value

if the material is not obscene and merely sexually explicit. the government may:

1. limit the availability to minors and prohibit the use of minors in making of materials
2. use zoning powers to prescribe where places of adult entertainment may operate as long as the government has a substantial interest in regulating and ample opportunities remain available for the operation of these businesses

Question 102

commercial speech

Answer 102

has some but not all first amendment protections

1. the government may regulate and prohibit false, misleading or deceitful advertising or proposing an unlawful transaction (like an ad for cocaine)
2. if the government attempts to regulate commercial speech beyond these three justifications, it must prove that its regulation advances a substantial governmental interest and is narrowly tailored, not quire strict scrutiny but heightened

Question 103

freedom of the press

Answer 103

1. generally the press has the same rights as everyone else, no more and no less
2. press rights are the rights of the owner or publisher not the reafers or persons who are criticized in the press

Question 104

expression in a non public forum

Answer 104

most government property is a non-public forum. unless the government has specifically dedicated nonpublic forums to be fully opened to all first amendment activites the government may regulate access:

1. as to the content, may limit speech to the subject thich the property has been dedicated
2. time place and manner controls:as long as regulations are reasonable, upheld

nonpublic property: public schools, military bases, government work places, airports, gov. telephone poles etc

Question 105

speech of Public employee/ government employee

Answer 105

other than high level policy makers or confidential advisors, public employees cannot be hired or fired based on political party affiliation, political philosophy, or any act of expression

if ees are speaking as citizens about a matter of public concern, they may not be fired or disciplined unless their speech disrupts the operation of the office, undermines authority, or destroys close working relationships but cannot be summarily fired have to be able to prove disruption
the government may also limit the right of public employees to engage in partisan political activities relating to political management and campaigning

Question 106

speech of student in school

Answer 106

schools may

1. prescribe course content including what appears in student newspaper so long as there is a reasonable pedagogical basis for the schools decision
2. set standards of decency in discourse and hence, discipline a student who gave a lewd speech
3. in a non-curicular setting, may prohibit speech which materially disrupts school activities or which may be reasonably viewed as promoting illegal drug use

Question 107

free exercise of religion

Answer 107

governments may neither punish people because of their religious beliefs nor require them to profess to any particular belief

in a proper context, such a conscientious objector status, the government may inquire into the sincerity of your beliefs but not the truth of them

Question 108

laws aimed at religious behavior or conduct

Answer 108

strict scrutiny: it may not single out, prohibit or punish religious behaviors becuase it is religious or performed by a religious group

Question 109

generally applicable laws that happen to affect religious practices or conduct

Answer 109

valid and the government is not required to exempt religious persons from the law even though the law may seriously interfere with religious practices is. ban on polygamy, criminalization of peyote

Question 110

court resolutions of church disputes

Answer 110

courts are barred from deciding matters of church doctrine but if the issue is secular the court will rile on it

Question 111

establishment clause

Answer 111

the government is to remain neutral respecting religion and neither aid one religion, aid all religions, or prefer one religion over the other

Question 112

basic establishment clause test

Answer 112

are the laws neutral as to the religious and nonreligious and does the law refrain from endorsing religion
three part lemon test:
1. does the law have a secular purpose?
2. does the primary effect advance or prohibit religion?
3. does the law avoid excessive entanglement with religion?

Question 113

generalized government benefits and the establishment clause

Answer 113

if practices are historically accepted like legislative prayer or provide generally available government benefits which do not primarily advance religion, the law is upheld
tax exemptions and sunday closing laws have been upheld

Question 114

government aid to religious school

Answer 114

can usually claim the secular purpose of assisting in the educational needs of students,
can give secular textbook aid and school vouchers are okay because all parents had the choice on where to send their kids using the voucher program
governments are also more likely to uphold aid to religiously affiliated institutions of higher educations

Question 115

government sponsored prayer or religious display

Answer 115

1. the establishment clause prohibits governments sponsored religious exercises and prayers in public schools, but you can have a true moment of silence, though no moment of silence for prayer
2. government may not sponsor religious displays on public property if a reasonable observer would conclude from the focus on the religious aspects that the government is endorsing religious messages