Constitutional Law

Question 1

What are the two types of federal court jurisdiction?

Answer 1

(1) Law-based jurisdiction; and
(2) Party-based jurisdiction

Question 2

What is law-based jurisdiction?

Answer 2

It gives jurisdiction to cases arising under the Constitution or federal law; cases of admiralty and maritime jurisdiction.

Question 3

What is party-based jurisdiction?

Answer 3

It gives jurisdiction to:
-Controversies to which the US is a party
-Controversies between two or more states
-Cases between a state and citizens of another state
-Cases between citizens of different states and the amount in controversy is over $75,000 (diversity); and
-Cases affecting ambassadors and consuls.

Question 4

What does the 11th Amendment prohibit?

Answer 4

It prohibits private individuals from suing states for money damages in any court.

Question 5

What are the 5 exceptions to the 11th Amendment prohibition?

Answer 5

(1) Federal suits brought by one state against another state, or suits brought by the federal government against a state;
(2) Lawsuits against subdivisions of a state (e.g. cities, towns, counties)
(3) Most lawsuits for injunctions;
(4) The state consents;
(5) Congress authorizes money damages against states for violations of the 13th, 14, and 15th Amendments.

Question 6

What do you need to have a case or controversy?

Answer 6

RAMPS (acronym)
-Ripeness
-Abstention
-Mootness
-Political Question
-Standing

Question 7

What must a person show to have standing?

Answer 7

(1) Injury in fact (actual or imminent that is direct and personal)
(2) Causation; and
(3) Redressability (plaintiff will benefit from the remedy sought and court be able to provide the remedy)

Question 8

What are the two types of third party standing?

Answer 8

1) Special relationship exception; and
2) Organization exception

Question 9

Special Relationship Exception

Answer 9

(1) The plaintiff has suffered injury;
(2) A special relationship exists between the plaintiff and third party because of the connection between the interest of the plaintiff and the constitutional rights of the third party;
(3) The third party is unable or finds it difficult to bring suit on his or her own behalf.

Question 10

Organization/Member Exception

Answer 10

An organization has standing to assert claims of its members if:
(1) The members would have standing to sue in their own right;
(2) The interest asserted is germane to the organization’s purpose; and
(3) Neither the claim asserted nor the relief requested requires the individual members to participate in the lawsuit.

Question 11

Ripeness

Answer 11

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

Question 12

Mootness

Answer 12

If a controversy or matter has been resolved, then the case will be dismissed as moot. There is no longer an controversy for the court to resolve.

Question 13

Mootness exception

Answer 13

Mnemonic: CRYER
The case will not be dismissed for mootness if the injury is “Capable of Repetition, Yet Evading Review.”

It is a practical impossibility for the case to be fully heard or go up on appellate review before the claims become moot. (e.g. abortion)

Question 14

Political Questions

Answer 14

Federal courts cannot hear cases involving political questions. A political question is a matter that the Constitution assigned to another branch of government or that is incapable of a judicial answer.

Question 15

What are the two factors to determine if something is a political quesiton?

Answer 15

(1) Something in the Constitution suggests the ultimate decision-making authority is given to another governmental actor; and
-e.g. Constitution says the Senate shall have the sole power to try impeachments.
(2) The required decision is political rather than legal in character.
-e.g. Courts will not review the way a state draws its electoral districts where the plaintiffs argue they were drawn in a manner to favor one political party.
(Foreign affairs are political in nature)

Question 16

Abstention

Answer 16

Federal courts may abstain or refuse to hear a particular case when the case includes undecided issues of state law. The abstention doctrine permits a federal court to defer to a state court to resolve issues of state law.

Question 17

What are the two ways abstention occurs?

Answer 17

(1) The federal court may abstain if the meaning of a state law or regulation is unclear. In this situation, the state court might interpret the statute so as to avoid the constitutional issue.
(2) Where a state court proceeding is going on, the federal court will abstain from hearing the same matter.

Question 18

What is the special case rule for the U.S. Supreme Court?

Answer 18

Adequate and Independent State Grounds: 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. To do so would be tantamount to rendering an “advisory opinion.”

TIP: A state law ground will usually be adequate if it invalidates something–a state law or contract. On the other hand, a state law will usually not be adequate if the law or contract is upheld under both state and federal law.

Question 19

What is the Exception to the U.S. Supreme Court Abstention Rule?

Answer 19

If the state court says, in interpreting the state constitution, it was merely copying the federal constitution, then no clear, independent state ground exists; so the doctrine will not apply and the Supreme Court will hear the case.

Question 20

What does the Supreme Court’s Original Jurisdiction cover?

Answer 20

Original jurisdiction over cases involving ambassadors, foreign diplomats, and states.
-Congress cannot enlarge or restrict the SC’s original jurisdiction.
-Appellate jurisdiction exists where the Constitution or a federal law is at issue.

Question 21

What does the contract clause apply to?

Answer 21

ONLY state legislation
NOT state court decisions or federal government

Question 22

When may legislation modify a private contract?

Answer 22

It may be modified by the legislature under its police power when: (1) it is necessary to serve and important and legitimate public interest and (2) the regulation is a reasonable and narrowly tailored means of promoting that interest.

Question 23

Ex Post Facto Laws

Answer 23

The Constitution prohibits both state and federal governments from passing retroactive criminal laws.

It retroactively alters the criminal law if it:
(1) makes criminal an act that was not a crime when committed;
(2) prescribes greater punishment for a crime after its commission;
(3) decreases the amount of evidence required for conviction;
(4) extends the statute of limitations for a crime as to which the previously applicable statute of limitations has already expired.

Question 24

Bills of Attainder

Answer 24

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct.
The Constitution prohibits federal and state legislatures from passing bills of attainder.

Question 25

Establishment Clause Rule

Answer 25

Where a law prefers one religion or religious sect over others, strict scrutiny applies.

Question 26

Test for Establishment Clause

Answer 26

SC held that the appropriate test for a potential establishment clause claim is to interpret the Establishment Clause using an originalist approach, examining historical practices and understandings, and including an examination of the potential for coercion.

Question 27

Religious Activities Conducted at Public Schools (EC)

Answer 27

Generally, religious activities conducted in public schools violate the Establishment Clause because their primary purpose is to promote religion.
-Invalid activities: prayer and Bible readings in public schools, a period of silence for “meditation or voluntary prayer,” post of just the 10 commandments on the walls of classrooms, etc.
-Valid activity: religious club holding its meeting in a public school.

Question 28

Public School Curriculum (EC)

Answer 28

The state cannot put religious classes in public schools (i.e. anti-evolution laws)

Question 29

Tax Deductions for Religious Institutions (EC)

Answer 29

General Rule: The Supreme Court has upheld the validity of a property tax exemption for religious institutions, if treated the same as other non-profits.
-a tax exemption from sales and use taxes available only for the sale of religious magazines and books violates the Establishment Clause as an endorsement of religion.

Question 30

Government Aid to Religious Schools (EC)

Answer 30

Most government programs providing direct aid to parochial elementary and high schools have been held to violate the Establishment Clause because they involve “excessive government entanglement” with religion.
-However, programs that provide aid to all elementary and secondary students (including parochial school students) have been held to “pass” the Establishment Clause test.

Question 31

Providing Public Services Through Religious Institutions

Answer 31

Federal grants to church-affiliated hospitals for maintenance and care of indigent patients have been held valid.
If the government has a sex education program where it gives funding to both secular and religious organizations to carry out the program, it is constitutional.

Question 32

Free Exercise Clause

Answer 32

A person’s religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief.

Question 33

Neutral Regulations that Affect Religious Beliefs

Answer 33

Where an individual’s conduct is motivated by their religious beliefs, the state may regulate or prohibit the activity if the regulation is “neutral in respect to religion and is of general applicability.”
ex: state law outlawing polygamy, Jewish Air Force doctor who violated the uniform dress requirements

Question 34

Exceptions to the Neutral Regulations Rule

Answer 34

-The state can’t deny unemployment compensation benefits to a person whose religious faith commands the observance of Saturday as the Sabbath.
-The state can’t require Amish children to attend high school.

Question 35

Freedom of Expression

Answer 35

The government may neither censor all categories of speech nor engage in content-based discrimination among different categories of speech (even if the speech is offensive), with some exceptions.

Question 36

Exceptions to Freedom of Expression

Answer 36

(1) If the government passes strict scrutiny;
(2) Unprotected or low-value speech
(3) Government as speaker
(4) Content-neutral conduct regulation
(5) Content-neutral time, place, and manner regulations

Question 37

Freedom of Expression-Strict Scrutiny

Answer 37

Strict Scrutiny applies when the government engages in content-based discrimination.
Ex: The government can ban child pornography, including fake child pornography.

Question 38

Unprotected Speech

Answer 38

A regulation that relates to unprotected speech must pass the rational basis test.
It includes:
-Speech that advocates violence or unlawful action;
-Fighting words;
-Hostile audience speech
-Obscene speech; and
-Defamatory speech

Question 39

Speech that Advocates Violence or Unlawful Action

Answer 39

Such advocacy is (1) directed to inciting or producing imminent lawless action, and (2) likely to incite or produce such action.

Question 40

Fighting Words

Answer 40

Words likely to incite an ordinary citizen to commit acts of immediate physical retaliation may be punished.
ex: “calling someone a “- fascist and racketeer” during WWII constituted fighting words.”

The speech must be more than annoying or offensive; it has to be a direct personal insult.

Fighting words statutes are subject to facial invalidity if the conduct proscribed is vague or overbroad.

Question 41

Hostile Audience Speech

Answer 41

Speech which elicits an immediate violent response against the speaker by an audience may be grounds for prosecution.
-The police, however, must make reasonable efforts to protect the speaker, to guard against a “heckler’s veto” of unpopular speech.

Question 42

Obscene Speech

Answer 42

Speech is considered obscene if:
(1) The average person, applying local contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest;
(2) The work depicts or describes, in a patently offensive way, sexual conduct that is specifically defined by state law; and
(3) The work, taken as a whole, lacks serious literary, artistic, political, or scientific value (national standard)

Question 43

Defamatory Speech-Private person, matter of private concern

Answer 43

Plaintiff does not need to prove actual malice. The plaintiff need only show negligence in order to recover according to common law defamation principles.

Question 44

Defamatory Speech-Private person, matter of public concern

Answer 44

Plaintiff must prove negligence about the truth or falsity of the statement (no malice required).

Question 45

Defamatory Speech-Public official/figure, matter of public or private concern

Answer 45

Plaintiff must prove the state law requirements of defamation and “actual malice”
-Actual malice: knowledge of the falsity or reckless disregard of the truth or falsity of the statement.

Question 46

Defamatory Speech-Private person suing media for false light invasion of privacy concerning matter of public interest

Answer 46

Plaintiff must prove actual malice.
Rule: A newspaper or broadcaster cannot be held liable for publishing truthful information obtained from the public record. Any newsworthy and true information is also protected.

Question 47

Low-Value Speech (quasi-protected speech)

Answer 47

-Commercial speech
-Sexual or indecent speech

Question 48

Commercial Speech

Answer 48

Commercial speech is protected by the 1st Amendment if it is not false or deceptive and does not relate to unlawful activity.
Three part test:
(1) It must serve a substantial governmental interest;
(2) It must directly advance the substantial governmental interest; and
(3) It must not be more extensive than is necessary to serve that interest.

Question 49

Sexual or Indecent Speech

Answer 49

Indecent speech is fully protected but can be regulated on the basis of secondary effect.
Rule: Secondary-effects regulations must serve a substantial government interest and leave open reasonable alternative channels of communication.
Ex: A city can impose zoning restrictions on adult theaters, even if it restricts the theaters form 95% of the city.

Question 50

Government as Speaker

Answer 50

Where the government is the speaker (not a private actor), the government may say what it wants.

Question 51

Conduct Regulation

Answer 51

Laws that regulate conduct and create an incidental burden on speech are allowable if:
-the regulation furthers an important or substantial government interest that is unrelated to the suppression of free expression; and
-the incidental restriction speech is no greater than is necessary to further that interest.

Ex: It is constitutional for the government to restrict people from burning their draft cards.

Question 52

Time, Place, Manner

Answer 52

The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks-places historically associated with expressive conduct.

Question 53

Time, Place, Manner Test

Answer 53

Three part test:
1) Be content-neutral as to both subject matter and viewpoint (i.e., the regulation cannot prefer some messages over others)
2) Be narrowly tailored to serve a significant (important) government interest; and
3) Leave alternative channels of communication open.

Similar to the intermediate scrutiny test under equal protection.

Question 54

Time, Place Manner-Non-Public Forums

Answer 54

Speech-related activities at non-public forums, such as military bases, jails, government workplaces, and mailboxes can be regulated by viewpoint-neutral regulations.
Test: The regulation must be reasonably related to a legitimate government purpose.

-e.g. government CANNOT deny use of public school facilities to religious groups if other public and private groups are allowed similar access.

Question 55

Public Employment

Answer 55

An individual cannot be denied public employment based upon membership in a political organization, unless the position is a high-level policy-making position.

Question 56

When may an individual be denied public employment based on political association?

Answer 56

If the individual:
-is an active member of a subversive organization;
-has knowledge of the illegal aims of the organization, and
-has a specific intent to further those illegal aims.

Question 57

Prior Restraint

Answer 57

As a general rule, the government cannot suppress or restrain speech in advance of its publication or utterance.

Question 58

Overbreadth

Answer 58

When a state has the power to regulate an area dealing with free speech, it must not do so “by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”
-the wording of the statute must be narrow and specific, and not overly broad so as to have a “chilling effect” upon protected speech.