Constitutional Law

Question 1

What does the Tenth Amendment provide for?

Answer 1

Any powers not delegated to the United States by the Constitution, nor prohibited by the Constitution to the states, are reserved to the states.

Question 2

Under the police power, states may regulate:

Answer 2

any health, safety, welfare, morals, or aesthetic interest.

Question 3

What are the ways the Constitution limits the police power of the states?

Answer 3

The Constitution limits the police power of the states by:

• reserving certain enumerated powers exclusively for the federal government (exclusive federal power);
• restricting the government from acting in violation of Constitutional provisions (individual rights); AND
• providing, under the Supremacy Clause, that if Congress enacts legislation with the intention of preempting state law, the congressional regulation will control (preemption).

Question 4

A state enjoys immunity from federal taxation if the tax is applied to what?

Answer 4

If it is applied to:

• unique state activities; OR
• essential governmental functions.

Question 5

Explain the anti-commandeering doctrine.

Answer 5

The federal government cannot use an enumerated power to force a state legislature to pass a law or a state executive official to administer a federal program.

Question 6

If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show what?

Answer 6

The state must show:

• the regulation serves a compelling state interest; and
• the regulation is narrowly tailored to serve that interest.

Question 7

If a state law merely incidentally burdens interstate commerce, what must the state show to have the law upheld?

Answer 7

The law will be upheld unless the burden imposed on interstate commerce clearly outweighs the local benefits. The state must show:

• the regulation furthers a legitimate state interest;
• the law is rationally related to the legitimate state interest; AND
• the state’s interest in enforcement outweighs the burden on interstate.

Question 8

List the two exceptions to the dormant Commerce Clause.

Answer 8

The exceptions are:

• when Congress affirmatively authorizes states to legislate in areas that would violate the dormant Commerce Clause; AND
• when states act as market participants, they may discriminate between in-state and out-of-state businesses.

Question 9

In determining the validity of a state tax affecting interstate commerce, courts will generally consider what four factors?

Answer 9

Courts will consider whether:

• there is a substantial nexus between the activity taxed and the taxing state;
• the tax is fairly apportioned;
• the tax discriminates against interstate commerce; AND
• the tax is fairly related to the services provided by the taxing state.

Question 10

Explain the state action requirement

Answer 10

In order to show a constitutional violation the plaintiff must first show that there is governmental action. Only government actors, not private actors, can violate constitutional rights.

Question 11

State action can be found in the actions of private actors under two theories: public function theory and the significant state involvement theory. Explain both.

Answer 11

The public function theory applies where a private entity is carrying on activities traditionally and exclusively performed by the government. The significant state involvement theory applies where the government and private entity are so closely related that the action by the private party can be treated fairly as action by the government.

Question 12

Do the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect only citizens?

Answer 12

No, the Fourteenth Amendment protects all persons, including corporations and people who have not obtained citizenship.

Question 13

Both the Fifth and the Fourteenth Amendments protect against the deprivation of:

Answer 13

“life, liberty, or property without the due process of the law.”

Question 14

In order to determine what procedural safeguards are necessary, courts look to what three factors?

Answer 14

Courts look to:

• The importance of the private interest that will be affected by the official action;
• The risk of an erroneous deprivation of this interest through procedures used and the probable value of additional or substitute procedures; AND
• The government’s interest in streamlined procedures.

Question 15

Strict scrutiny review applies to laws that burden the exercise of which rights?

Answer 15

Strict scrutiny review applies to:

• the right to vote;
• the right to travel;
• the right to privacy;
• First Amendment rights;
• family rights; AND
• other rights referred to as fundamental rights.

Question 16

Any substantial interference with the right to marry must be necessary to further:

Answer 16

A compelling interest.

Question 17

Any regulation on a previability abortion is unconstitutional if:

Answer 17

It imposes an undue burden on the woman’s right to choose an abortion.

Question 18

Define rational basis review, and note the classifications to which it applies.

Answer 18

Under rational basis, the burden of persuasion is on the plaintiff to show the measure being challenged is not rationally related to any legitimate governmental interest.
Rational basis review applies to all classifications not falling under strict or intermediate scrutiny.

Question 19

What standard of review is used when states discriminate based on alienage?

Answer 19

Strict scrutiny.

Question 20

What are the two justifications for affirmative action that have been upheld?

Answer 20

The justifications are:
- to remedy the effects of past or present discrimination in a particular institution; AND
- to achieve a diverse student body in an institution of higher education.
NOTE: Race can be one factor among many, it can’t have a fixed weight.

Question 21

The Fifth Amendment Takings Clause provides that the government cannot take:

Answer 21

Private property for public use without just compensation.

Question 22

Describe a direct government appropriation taking and a regulatory taking.

Answer 22

A direct government appropriation is an actual appropriation of one’s property by the government.
A regulatory taking is a land-use regulation that denies a property owner of all reasonable economically beneficial uses of the land.

Question 23

List the six rights protected by the privileges and immunities of national citizenship.

Answer 23

The six rights are:

• to travel from state to state;
• to petition Congress for redress of grievances;
• to vote for national offices;
• to enter public lands;
• to be protected while in custody of U.S. Marshals; AND
• to assemble peaceably.

Question 24

Does the Fourteenth Amendment Privileges and Immunities Clause protect corporations?

Answer 24

No, corporations are not protected under the Fourteenth Amendment Privileges and Immunities Clause.

Question 25

What does the Contracts Clause apply to?

Answer 25

The Contracts Clause applies only to actions by the state. It applies to state legislation, but it does not apply to state court decisions.

Question 26

When can a private contract be modified by a state legislature?

Answer 26

It can be modified when:

• the modification is necessary to serve an important and legitimate public interest; AND
• the regulation is a reasonable and narrowly tailored means of promoting that interest.

Question 27

When does a statute violate the Ex Post Facto Clause?

Answer 27

A statute violates the Ex Post Facto Clause if it:

• makes criminal an act that was not a crime when it was committed;
• prescribes a greater punishment for a crime after its commission;
• decreases the amount of evidence required for convictions;
• extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Question 28

A bill of attainder is:

Answer 28

a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.

Question 29

When is speech considered obscene?

Answer 29

Speech is considered obscene if:

• the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
• The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; AND
• the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Question 30

When legislation or a government program prefers one religion or religious sect to others, it will be reviewed under which level of scrutiny?

Answer 30

It will be reviewed under strict scrutiny.

Question 31

When legislation or a government program contains no religious or sect preference, in what cases is the act constitutional?

Answer 31

The legislation or government program is constitutional if:

• the statute has a secular legislative purpose;
• the primary purpose or effect neither advances nor inhibits religion; AND
• the statute does not foster an excessive government entanglement with religion.

Question 32

The government may not punish individuals for their religious beliefs by:

Answer 32

Denying benefits or imposing burdens based on religious belief.

Question 33

When an individual’s conduct is motivated by his religious beliefs, the state my regulate or prohibit the activity if:

Answer 33

The regulation is neutral with respect to religion and is of general applicability.

Question 34

When is a law that regulates conduct and creates an incidental burden on speech constitutional?

Answer 34

It is constitutional if:

• the regulation furthers an important government interest that is unrelated to the suppression of free expression; AND
• the incidental restriction on speech is no greater than is essential to further that interest.

Question 35

What types of unprotected and low-value speech may be regulated?

Answer 35

• speech that advocates violence or unlawful actions, fighting words, and hostile audience speech;
• obscene speech; AND
• defamatory speech

Question 36

What are the constitutional restrictions on the regulation of defamatory speech for a public official/figure on a matter of public concern? On a matter of private concern?

Answer 36

The plaintiff must prove that the state law requirements of defamation, plus actual malice, which is defined as knowledge of falsity or reckless disregard of the truth or falsity of the statement. This rule holds whether the allegedly defamatory statement is a matter of public or private concern.

Question 37

What are the constitutional restrictions on the regulation of defamatory speech for a private person on a matter

Answer 37

When the plaintiff is a private person and the statement concerns a matter of public concern, the plaintiff need not prove actual malice but must prove negligence about the truth or falsity of the statement.

Question 38

When is commercial speech protected by the First Amendment?

Answer 38

Commercial speech is protected if:

• it is not false or deceptive; AND
• it does not relate to unlawful activity.

Question 39

Government regulation of First Amendment-protected commercial speech must:

Answer 39

• serve a substantial government interest;
• directly advance the substantial government interest; AND
• not be more extensive than is necessary to serve that interest.

Question 40

When may the government place restrains on the time, place, and manner of speech in public areas?

Answer 40

It may do so if the regulation:

• is content-neutral as to both subject matter and viewpoint;
• is narrowly tailored to serve an important government interest; AND
• leaves alternative channels of communication open.

Question 41

Regulations of speech-related activities at non-public forums must be:

Answer 41

• viewpoint neutral; AND

- reasonably related to a legitimate interest.

Question 42

Describe the overbreadth doctrine.

Answer 42

A regulation of speech must be narrow and specific; it cannot be overly broad so as to have a “chilling effect” upon protected speech.

Question 43

A city fire department required its firefighters to pass a comprehensive written exam in order to be eligible for promotion to the rank of lieutenant. Over the past several years, all the department’s African-American firefighters who sat for the exam failed to pass. Due to large public outcry, the city passed an ordinance instituting a racial quota system to govern promotions within the fire department. This rule required two of every five firefighters promoted to lieutenant to be African American. Thereafter a group of the department’s Caucasian firefighters filed suit in federal court against the city, challenging the constitutionality of the new measure.
How should the court rule?
a. For the firefighters, if they can show the rule is discriminatory in application.
b. For the firefighters, if they can show the rule has a discriminatory purpose.
c. For the city, if it can show there is no less restrictive alternative means available.
d. For the city, if it can show the rule is substantially related to a compelling interest.

Answer 43

c. For the city, if it can show there is no less restrictive alternative means available.
Affirmative action measures based on race must pass strict scrutiny. Under the strict scrutiny standard, the burden of persuasion is on the government to prove that the measure being challenged is necessary to further a compelling interest. This means that the government must prove that no less restrictive alternative means is available. Since this choice accurately applies the strict scrutiny standard, it is the correct answer.

Question 44

The Eleventh Amendment prohibits the citizens of one state from:

Answer 44

Suing their state on federal claims for money damages, in federal court, without the state’s consent.

Question 45

List the exceptions to the application of the Eleventh Amendment.

Answer 45

The exceptions are:

• suits against state officials for abusing their power in enforcing an unconstitutional state statute;
• federal suits brought by one state against another state or suits brought by the federal government against a state;
• most suits for injunctions;
• a state consents to suit in federal court; AND
• private suits that can be authorized by Congress to compensate for violations of the Civil War Amendments.

Question 46

A state may consent. to suit in federal court if it:

Answer 46

clearly, expressly, and unequivocally waives it Eleventh Amendment immunity.

Question 47

May Congress enlarge or restrict the Supreme Court’s original jurisdiction?

Answer 47

No, Congress may neither enlarge nor restrict the Supreme Court’s original jurisdiction.

Question 48

Describe the Supreme Court’s appellate jurisdiction.

Answer 48

Appellate jurisdiction exists where the federal constitution or a federal law are at issue.

Question 49

When will a case be dismissed as moot?

Answer 49

If a controversy or matter has been resolved, then the case will be dismissed as moot.

Question 50

An exception to the mootness doctrine is when the injury is:

Answer 50

capable of repetition, yet evading review.

Question 51

Define ripeness.

Answer 51

Ripeness bars consideration of claims before they have fully developed. The controversy must be ripe for decision.

Question 52

Define the abstention doctrine.

Answer 52

A federal court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. The abstention doctrine permits the state court to resolve issues of state law, making a decision on the constitutional issue unnecessary.

Question 53

Define the political question doctrine.

Answer 53

A political question is a matter that is assigned to another branch by the Constitution or that is incapable of judicial review. The two most important factors are:

• something in the Constitution suggests that the ultimate decision-making authority is given to another governmental actor; AND
• the required decision is political rather than legal in character.

Question 54

Article III requires a person litigating a constitutional question to show standing, which requires the plaintiff to show what?

Answer 54

The plaintiff must show: injury in fact; causation; AND redressability.

Question 55

Define injury in fact, causation, and redressability.

Answer 55

Injury in fact: The plaintiff suffered a direct and personal injury, actual or imminent.
Causation: The plaintiff’s injury must have been caused by the challenged action.
Redressability: The plaintiff will benefit from the remedy sought in the litigation.

Question 56

The Supreme Court permits a party to raise the constitutional rights of a third party in what cases?

Answer 56

It permits this if:

• a special relationship exists between the claimant and third party because of the connection between the interests of the claimant and the constitutional rights of the third party; AND
• the third party is unable to bring suit on his own behalf.

Question 57

When may an association have standing to assert the claims of its members, even if the association has not suffered any injury itself?

Answer 57

It may do so if:

• The members would otherwise have standing to sue in their own right;
• the interest asserted is germane to the association’s purpose; AND
• neither the claim asserted nor the relief requested would require participation by the individual members in the lawsuit.

Question 58

List the five limitations on jurisdiction of the federal courts.

Answer 58

The justiciability mnemonic is RAMPS:

• Ripeness
• Advisory opinions
• Mootness
• Political questions
• Standing

Question 59

Define the adequate and independent state grounds doctrine.

Answer 59

Although a state court decision may involve a federal question, if the state court judgment can be supported on an adequate and independent state ground, the Supreme Court will not take jurisdiction.

Question 60

Unlike other doctrines of judicial review, which apply to the entire federal judiciary, adequate and independent state grounds apply only to:

Answer 60

the Supreme Court of the United States.

Question 61

Explain the procedural component to adequate state grounds.

Answer 61

If the plaintiff loses in the state court for failing to comply with some state procedural rule, and the Supreme Court finds the state procedural rule to be adequate (fundamentally fair under due process analysis) then the doctrine of adequate state grounds will also apply to foreclose Supreme Court review.

Question 62

After a number of legislators find themselves fined for various ethics violations, another legislator challenges the constitutionality of the state ethics law in state court on the grounds that it violates the state constitution and is inconsistent with codified federal ethics law. The state supreme court narrowly construes the state ethics law in a manner not inconsistent with federal ethics law and finds it valid. However, it is silent on the other other grounds raised in the suit. The legislator seeks the discretionary appellate remedy of review by certiorari in the US Supreme Court. What is the most likely outcome of the legislator’s petition for US Supreme Court review of the state court decision?

a. The decision will be affirmed on adequate state law grounds.
b. The writ of certiorari will be denied on the ground that federal question jurisdiction does not exist.
c. The decision will be overturned, because the Supremacy Clause requires it.
d. The decision will be overturned, because federalism requires the state to defer to the federal government.

Answer 62

b. The writ of certiorari will be denied on the ground that federal question jurisdiction does not exist.

Under Article III, Section 2 of the US Constitution, the Supreme Court has appellate jurisdiction of cases arising under the Constitution, federal law, or treaty, including cases in which the validity of a state statute is challenged as repugnant to the Constitution or federal law. Here, while the legislator challenged the state ethics law as inconsistent with federal ethics law, the state court decision upheld the validity of the state law without finding it inconsistent with its federal counterpart. Therefore, the Supreme Court will deny the write of certiorari for the reason that a federal question is not presented.

Question 63

List some of the enumerated powers of Congress.

Answer 63

They include the power to:
- lay and collect taxes;
- borrow money on the credit of the United States;
- regulate commerce with foreign nations and among the several states; AND
- declare war, to raise and support armies, and to provide and maintain a navy.
See Article I, Section 8 for the rest of the enumerated powers of Congress.