Constitutional Law

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Constitutional Law
2011-07-23 21:18:50
Constitutional Law

Constitutional Law
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  1. Constitutional Law - Barbri Preview
  2. What kind of cases can a federal court hear?
    Pursuant to Article III, federal courts can only hear actual cases or controversies (Cases or Controversy Clause)

    Note - proposed legislation does not satisfy the cases and controversy requirement b/c the proposal may never be adopted
  3. Executive Order
    Broad executive power limited in only two ways:

    • (1) can't be used to override an act of Congress
    • (2) It is also bound by the Constitution
  4. President's Power as Commander-in-Chief
    President essentially always the power to send troops to a foreign land

    There has never been a case of the President violating these powers.
  5. Congress's Taxing and Spending Powers
    Requires the appropriation to be for the general welfare

    An appropriation does not advance the general welfare, for example, where it is discriminatory

    Congress can condition appropriations on certain power
  6. Police Power
    Police powers relate solely to state or local initiatives; 99% of the time, this is not a federal power.

    The exception to this rule is (1) Washington, DC; and (2) federal park lands.

    Police powers typically refer to the states' powers to regulate for the health, safety and morals and welfare of its residents.
  7. Supremacy Clause
    Federal law trumps state law when they are in direct conflict.
  8. General Welfare Clause
    Only applies to Congress's taxing and spending powers
  9. Commerce Powers
    Congress has plenary power to regulate interstate commerce and commerce with foreign nations.

    Congress can regulate the persons and things in interstate commerce the channels and instruentalities of interestate commerce, and activities that have a substantial effect on interstate commerce.

    Cumulative impact theory - Congress can regulate intrastate commerce if, in the aggregate, the activity affects interstate commerce

    U.S. v. Lopez - Congress's commerce powers are indeed limited; Congress has to demonstrate a nexus b/t the law and interstate commerce
  10. Affectation Doctrine
    Applies where commerce crosses state lines

    Congress can regulate any person or thing that crosses state lines as long as that activity has a substantial economic effect on the stream of commerce
  11. Congress's power to regulate activities that have a substantial effect on interstate commerce
    • Where Congress seeks to regulate non-economic or noncommercial intrastate activity under the commerce clause (e.g. possession of a gun in a school zone), Congress must make a factual finding tha the activity affects interstate commerce.
    • Where Congress seeks to regulate economic or commercial activity, it need only have a rational basis for concluding the activity substantially affects interstate commerce.
  12. Fundamental rights
    • Three basic fundamental rights:
    • (1) Right to Vote
    • (2) Right to Travel
    • (3) Right to Privacy

    Note - these are fundamental, but not absolute; restriction is subject to a strict scrutiny analysis
  13. Right to Privacy
    One of the three fundamental rights.

    • There are 7 privacy rights, which can be remembered with the pneumonic CAMPERS
    • Contraception
    • Abortion
    • Marriage
    • Procreation
    • Relations of the family/family relations
    • Sexual relations (maybe)

    Note - these are fundamental, but not absolute; restriction is subject to a strict scrutiny analysis
  14. Burdens of Proof
    Strict Scrutiny: State has the burden

    Intermediate Scrutiny: State has the burden to show that the challenged measure is "substantially related to an important governmental objective."

    Rational Basis: plaintiff has the burden
  15. Equal Protection of Laws
    Similarly situated people cannot be treated differently.

    First thing to ask is who is being treated differently; this indicates what standard will apply

    Gender discrimination - subject to intermediate scrutiny: state has the burden to show that the challenged measure is "substantially related to an important governmental objective."

    Citizens v. non-citizens - strict scrutiny

    Strict scrutiny applies in the equal protection context to discrimination between race, alienage, and national origin (RAN)
  16. Due Process Clause
    state can't deprive you of life, liberty or property without notice and a hearing
  17. First Amendment Analysis
    • (1) is this a prior restraint, which is prohibited?
    • Note - restrictions on time, place and manner are allowed

    • (2) If not, then argue it is vague or overbroad
    • vague = a reasonable person couldn't understand what conduct the statute purports to prohibit
    • overbroad = law prohibits both protected and unprotected speech
  18. Religious Rights
    First Amendment protects your right to believe anything you want as long as it is sincere.

    The government can limit how you exercise that belief.

    Religious conduct can be regulated by laws that are secular in intent
  19. Establishment Clause
    Government can't establish a national religion.

    • Lemon Test - 3 prongs
    • (1) does the measure have a secular purpose?
    • (2) Does the primary effect advance or inhibit religion?
    • (3) Does the law foster excessive government entanglement
  20. Constitutional Law - Barbri Lectures
  21. Federal Judicial Power
    Defined by Art. III; federal courts must decide actual cases and controversies and do not render advisory opinions

    • Requirements
    • 1) Standing
    • 2) Ripeness
    • 3) Mootness
    • 4) Political Question Doctrine
  22. Standing
    Standing is the issue of whether P is the proper party to bring suit.

    • 4 Requirements:
    • 1) Injury - P must show he has been or will imminently be injured; ideological objection is insufficient; P can only assert injuries personally suffered. P seeking injunctive or declaratory relief must show a likelihood of future harm
    • 2) Causation & Redressability - P must show D caused the injury so that a favorable court decision is likely to remedy the harm; if a ruling would have no effect, then it is an advisory opinion and thus barred
    • 3) No Third Party Standing - P can't assert another's claim except: (i) close relationship where P can adequately represent the interests of the third party; (ii) third party is unlikely to be able to assert his rights (e.g. jurors); (iii) an organization may sue for its members if the members would have standing, the interest are germane to the organization's purpose, and neither the claim nor relieve requires participation of the members.
    • 4) No generalized grievances - P can't be suing solely as a citizen/taxpayer, except that taxpayers have standing to challenge government expenditures as violating the establishment clause.
  23. Ripeness
    Quesiton of whether the federal court may grant pre-enforcement review of a statute or regulation.

    This is where you are most like to see a question about declaratory judgments

    • 2 requirements:
    • 1) the hardship that will be suffered without pre-enforcement review;
    • 2) the fitness of the issues and the records for judicial review
  24. Mootness
    If events after the filing of a lawsuit end P's injury, the case must be dismissed as moot b/c a P must present a live controversy.

    However, a non-frivolous money damages claim will keep the case alive.

    • 3 Exceptions:
    • 1) the wrong is capable of repetition but evades review b/c its inherently limited time duration, i.e. abortion;
    • 2) voluntary cessation by D who can start again easily;
    • 3) class action suits, as long as one person's claim remains unresolved.
  25. Political Question Doctrine
    refers to constitutional violations that federal courts will not adjudicate.

    • 4 kinds of political issues:
    • 1) U.S. guarantee to each state a republican form of government (Art. IV, Sec. 4) (Guarantee clause)
    • 2) challenges to the President's conduct of foreign policy
    • 3) challenges to the impeachment & removal process
    • 4) challenges to partisan gerrymandering
  26. Writ of Certiorari
    • Discretionary appeal by SCOTUS. Virtually all cases are reviewed under by writ of certiorari:
    • All cases from state courts; however, the Court may decide the federal issues, but not the state law issues.
    • All cases from U.S. Cts. of Appeal
  27. Appeal to SCOTUS
    Appeal exists for decisions of three-judge panels in federal district courts
  28. SCOTUS original jurisdiction for suits between the states.
    suits b/t state governments
  29. Final Judgment Rule
    SCOTUS may hear cases only after there has been a final judgment of the highest state court, or of a US Court of Apeals, or of a three-judge federal district court.
  30. SCOTUS review of state court decisions
    • SCOTUS will only review a case where there is no independent and adequate state law ground of decision.
    • If a state court decision rests on two grounds, one state law and one federal law, if the Court's reversal of the federal issue will not change the result in the case (e.g., if the state court had found the law invalid under both the state and federal Constitutions), SCOTUS cannot hear it.
  31. Principle of Sovereign Immunity
    • Eleventh Amendment bars suits against the states in federal court. That is, state governments generally cannot be named as defendants in Federal court cases.
    • Sovereign immunity bars suits against states in state courts or federal agencies, even on federal law claims

    • 3(4) Exceptions:
    • 1) waiver is permitted; a state may and must expressly consent to be sued
    • 2) state may be sued pursuant to federal laws adopted under section 5 of the Fourteenth Amendment (this is the only other provision under which Congress can authorize suits against the states);
    • 3) federal government can sue state governments
    • 4) Bankruptcy proceedings - Eleventh Amendment does not apply to federal laws exercised pursuant to Congress's bankruptcy powers, so it doesn't bar actions of the bankruptcy courts.
  32. Suits against State officers
    • Allowed even if the state government cannot be named as a D
    • State officers may be sued for injunctive relief
    • state officers can be sued for money damages to be paid personally, but not if the state treasury will be paying the retroactive damages.
  33. Federal Abstention
    Federal courts may not enjoin pending state court proceedings

    Exception: But a federal court will hear an action to enjoin pending state court prosecution if it is being conducted in bad faith.
  34. Three primary Congressional Powers
    Taxing, Spending & Commerce
  35. Federal Police Powers
    • There are no federal police powers, except as reflected in the pseudonym MILD
    • 1) Military
    • 2) Indian Reservations
    • 3) Lands - Federal
    • 4) DC
  36. Article I, Sec 8
    Congress can adopt all laws that are necessary and proper to exercise its authority
  37. Taxing & Spending power
    Congress may tax and spend for the general welfare.
  38. Commerce Power
    Art. 1, Sec. 8 - Congress can regulate commerce with foreign nations, Indian tribes, and among the states.

    • SCOTUS has said that Congress could act under the Commerce clause in any of these 3 situations:
    • 1) Channels of interstate commerce - this includes highways, internet, waterways, etc.
    • 2) Instrumentalities, persons or things
    • 3) Activities w/ substantial effect on interstate commerce
  39. Tenth Amendment
    All powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

    • 2 emerging principles:
    • 1) Congress cannot compel state regulatory or legislative action (But Congress can induce state government action by putting strings on grants so long as they are expressly stated and related to the purpose of the spending program).
    • 2) Congress may prohibit harmful commercial activity by state governments.
  40. Delegation of Legislative Powers
    There is no limit on Congress's ability to delegate legislative power.

    Congress may not delegate executive power to itself of its officers.
  41. Bicameralism & Presentment
    Bicameralism and presentment is required for Congressional action.

    Legislative vetoes and line-item vetoes are unconstitutional.

    President must sign or veto the bill in its entirety; a line-item veto is unconstitutional.
  42. Federal Executive Power: Foreign Policy - Treaties
    • Treaties are agreements b/t the U.S. and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
    • Treaty v. State Law: State laws that conflict with treaties are invalid
    • Treaty v. Federal Law: If a treaty conflicts with a federal statute, the one adopted last in time controls.
    • Treaty v. Constitution: If a treaty conflicts with the U.S. Constitution, treaty is invalid.

    Note that while the President is required to obtain the advice and consent of the Senate to enter into treaties, he is not required to obtain Senate consent to void a treaty.
  43. Federal Executive Power: Foreign Policy - Executive Agreements
    • An agreement b/t the U.S. and a foreign country that is effective when signed by the President and the head of a foreign nation. No Senate approval required.
    • Can be used for any purpose
    • Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the U.S. Constitution.
  44. Executive Power: Domestic Affairs - Appointment and Removal
    • Appointment Power
    • President appoints ambassadors, federal judges and officers of the U.S..
    • Senate is required to approve the nomination
    • Congress may vest the appointment of inferior officers in the President, heads of Departments or lower federal courts.

    • Removal Power
    • President can fire any executive branch official, absent statutory restriction. Congress can legislate to limit removal if 2 requirements are met:
    • 1) The office subject of the limiting legislation must be one where independence from the President is desirable (e.g. independent Prosecutor, but not the President's cabinet); and
    • 2) Congress cannot prohibit removal; it can limit removal to where there is good cause shown.
  45. Executive Power: Domestic Affairs - Impeachment and Removal
    • President, VP, federal judges, and all officers of the U.S. can be impeached and removed for:
    • Treason
    • Bribery
    • High-Crimes & Misdemeanors
  46. Presidential Immunity
    President has absolute immunity to civil suits for money damages for any actions while in office.

    No immunity for actions that occurred prior to taking office.
  47. Executive Privilege
    Executive privilege for Presidential papers and conversations, however, that privilege yields to other important government interests.
  48. Presidential Pardon Powers
    President has the power to pardon anyone accused or convicted of federal crimes, but not state crimes.

    Exception 1: Where the person to be pardoned has been impeached by the House of Representatives; that person can never be pardoned for the underlying crimes that led to the impeachment.

    Exception 2: Civil liability
  49. Supremacy Clause
    • Art. VI - Constitution and the laws and treaties made pursuant to it are the supreme law of the land.
    • Valid federal law overrides or preempts inconsistent state law.
    • 3 Bases for preemption:
    • 1) Express Preemption: Where Congress is authorized, it can declare exclusive control over a field, in which case state and local laws are preempted.
    • 2) Implied Preemption: 3 ways - (i) if it is impossibly to simultaneously comply with the state and federal law, the state law is preempted; (ii) if a state law impedes the achievement of a federal objective, then the state or local law is preempted; (iii) If Congress shows a clear intent to preempt state law.

    Integovernmental Immunity: States can't charge state tax to be paid out of the federal treasury
  50. Dormant Commerce Clause & Privileges and Immunicites Clause of Article IV
    • DCC: State or local law are unconstitutional if they place an undue burden on interstate commerce
    • AKA the negative implications of the commerce clause

    PIC: No state or muncipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification

    Classic Wrong Answer!: the Privileges or Immunicites Clause of the Fourteenth Amendment, used to preserve a person's right to travel from one state to another. This is always wrong unless it's about someone's right to travel.
  51. Dormant Commerce Clause/PIC Analysis
    • If the state law discriminates against out-of-staters:
    • a) Privileges and immunities clause of Art. IV does not apply b/c this it only applies if there is discrimination.
    • b) If the law burdens interstate commerce, it violates the dormant commerce clause if its burden on interstate commerce outweighs the benefits of the law.

    • If the law does discriminate against out-of-staters:
    • a) if the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important gov't purpose and the gov't must show that no less discriminatory alternative can achieve that goal. This almost never happens. But see ME. v. Taylor - bait fish; state interest in protecting natural resources
    • b) Exceptions: (i) if Congress approves the discrimination/law; (ii) market participant exception (state/local gov'ts can prefer their own citizens in receiving benefits from government programs or in dealing with gov't-owned business, e.g. state universities.
    • c) BUT, if the law discriminates against out-of-staters re: their ability to earn a living, it violates the PIC of Art. IV unless it is necessary to achieve an important government purpose. Note, corporations and aliens cannot invoke the privileges and immunities clause.
  52. Comparison of the Dormant Comerce Clause and the Privileges and Immunities Clause of Article IV
    • Dormant Commerce Clause
    • 1) Does not require discrimination against out-of-staters in order to apply
    • 2) Requires a burden on interstate commerce
    • 3) Corporations and aliens can sue under it
    • 4) Exceptions: Congressional approval and the market participant exception

    • Privileges and Immunities Clause of Art. IV
    • 1) Requires discrimination against out-of-staters in order to apply
    • 2) Requires discrimination with regard to civil liberties or important economic activities
    • 3) Corporations and aliens cannot sue under it
    • 4) No exceptions
  53. State taxation of interstate commerce
    • States cannot use taxes to aid in-state businesses
    • States may only tax activities if there is a substantial nexus b/t the product or activity to be taxed and the state.
    • state taxation of interstate business or companies must be fairly apportioned.
  54. Import-Export Clause of Art I, Section 10
    "No state shall, without consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws."
  55. Full Faith and Credit
    • Courts in one state must give full faith and credit/enforce all judgments of courts in another state, so long as:
    • 1) the court that rendered the judgment has personal and subject matter jurisdiction;
    • 2) the judgment must be on the merits
    • 3) the judgment must be final
  56. Applicability of the U.S. Constitution vis a vis Individual Liberties
    Only applies to government action; not private conduct. Exception: Thirteenth Amendment prohibition of slavery and involuntary servitude

    Congress can apply constitutional norms to private conduct by statute

    Congress can prohibit private racial discrimination and has broad powers to enforce this provision.

    Congress can use its commerce powers to apply constitutional norms to private conduct.

    Congress cannot use section 5 of the Fourteenth Amendment to regulate private behavior - only to regulate state and local governments.
  57. Exceptions in which private conduct must comply with the Constitution
    • Public functions exception - If a private entity is performing a task traditionally, exclusively done by the government.
    • Entanglement Exception - if government affirmatively authorizes, encourages or facilitates unconstitutional activity
  58. Key Examples of situations in which the Court has evaluated whether there was government action
    • 1) State action where courts enforce racially restrictive covenants.
    • 2) There is state action when the government leases premises to a restaurant that racially discriminates.
    • 3) There is state action when a state provides free books to private schools that racially discriminate.
    • 4) There is no state action when a private school that is over 99% funded by the government fires a teacher b/c of her speech. Read: government subsidy does not equal government action, no matter how large.
    • 5) There is no state action when the NCAA orders the suspension of a basketball coach at a state university
    • 6) There is state action when a private entity regulates interscholastic sports within a state.
    • 7) There is no state action when a private club with a liquor license from the state racially discriminates.
  59. Application of the Bill of Rights
    • Directly applies to the Federal government only.
    • Indirectly, it is applies to state and local governments through its incorporation into the due process clause of the Fourteenth Amendment.
    • Exceptions (these don't apply to the state govts):
    • 1) Third Amendment right to not quarter soldiers;
    • 2) Fifth Amendment right to grand jury indictment in criminal cases
    • 3) Seventh Amendment right to jury trial in civil cases
    • 4) Eighth Amendment right against excessive finesfines.
  60. Rational Basis Test
    Law is upheld if it is rationally related to a legitimate government purpose.

    Implicated by regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications.

    Rational basis test is used for all classifications that relate only to matters of economics or social welfare

    Challenger has the burden of proof to show either there is no conceivable legitimate purpose or that the law is not rationally related to it.
  61. Intermediate Scrutiny Test
    Law will be upheld if it is substantially related to an important government purpose.

    Implicated where regulations involve quasi-suspect classifications (i.e. gender and legitimacy)

    Government has the burden of proof.
  62. Strict Scrutiny Test
    Law will be upheld if the law is necessary to achieve a compelling government purpose. The law must also be the least burdensome alternative to achieve this goal.

    Implicated by regulations affecting fundamental rights (i.e. interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (i.e. race, national origin, and alienage).

    Government has the burden of proof.
  63. Procedural Due Process
    • Step 1: Has there been a deprivation of life, liberty or property?
    • Deprivation of liberty occurs if there is the loss of significant freedom provided by the Constitution or a statute.
    • Deprivation of property occurs if the person has an entitlement (i.e. a reasonable expectation to continued benefit) and that entitlement is fulfilled.
    • To show deprivation, there must be an intentional government action or at least reckless action for liability to exist; mere negligence is insufficient. Exception: in emergency situations, the government is liable only where its conduct "shocks the conscience."
    • Failure to protect people from privately inflicted harms does not deny due process.
    • Step 2: What procedures are required? 3-part Balancing Test

    • (i) The importance of the interest to the individual
    • (ii) The ability of additional procedures to increase the accuracy of the fact-finding
    • (iii) The government's interests (usually efficiency and saving government money)
  64. Examples of procedural due process requirements & notes
    • Welfare benefits: termination requires notice and hearing
    • Social security disability benefits: termination requires post-termination hearing
    • Permanent termination of parent's right to custody: notice and hearing
    • Non-emergency adult institutionalization: notice and hearing
    • harm to reputation by itself is not a loss of liberty
    • prisoners rarely have liberty interests, thus they almost always lose here.
    • punitive damage awards requires jury instructions to guide discretion and judicial review to assure reasonableness of review.
    • Non-citizen enemy combatants: ability to challenge their continued detentions
    • U.S. citizens facing criminal charges in a foreign country held by the American Military: can filed habeus corpus petition & seek review of their detention in federal court
    • Due Process requires recusal of a judge where there is a substantial risk of actual bias.
  65. Procedural Due Process Analysis
    Has the government deprived a person of life, liberty or property?

    • If there was a deprivation, then what procedures must the government supply? Balance:
    • 1) importance of interest to the individual;
    • 2) ability of additional procedures to increase the accuracy of the fact finding; and
    • 3) the government's interest

    If there was no deprivation, the government need not provide procedural process
  66. Substantive Due Process
    applies to protection of economic liberties and safeguarding property
  67. Economic liberties
    Rational basis test is used for laws affecting economic rights
  68. Takings Clause of the Fifth Amendment
    The government may take private property for public use only where it provides just compensation.

    • Is there a taking? Two types of taking
    • 1) possessory taking - Government confiscation or physical occupation of property is always a taking.
    • 2) regulatory taking - government regulation is a taking if it leaves no reasonable economically viable use of the property.

    [Government development of the property must be justified by a benefit to the government that is roughly proportionate to the burden imposed on the landowner; otherwise it is a taking.]

    Property owners can bring a takings challenge to regulations that existed at the time the property was acquired.

    Temporary denial of the property is not a taking so long as the government's action is reasonable.

    Public Use: a taking is for a public use so long as the government acts out of a reasonable belief that the taking will benefit the public. If the taking is not for public use, the Government must return the property

    Just Compensation: compensation is measured in terms of loss to the owner in reasonable market value terms; the gain to the government is irrelevant.
  69. Takings Clause Analysis
    • 1) Is it a taking? Taking = government confiscation, physical occupation, or leaving no reasonable economically viable alternative.
    • 2) If it is a taking, is it for public use (i.e. reasonable belief that the taking will benefit the public). If yes, just compensation is required (market value of the property in the hands of the owner). If no, then the government must return the property.
  70. Contracts Clause
    • No state shall impair the obligations of contracts
    • Prohibits states from acting to substantialy impair contract rights.
    • The clause applies only to state or local interference with already existing contracts; no limit on regulation of future contracts
    • State and local governments may interfere with existing private contracts if intermediate scrutiny is met. The exact language for the test in this situation is: "does the legislation substantially impair a party's rights under the existing K? If so, is the law a reasonably and narrowly tailored means of promoting an important and legit. public interest?"
    • State or local interference with government contracts must meet strict scrutiny
    • Neither the federal nor state governments can adopt ex post facto criminal laws (it's ok for civil laws).
  71. Right to Privacy
    • Privacy is a fundamental right under substantive due process and therefore protected by the strict scrutiny standards. The right to privacy includes:
    • 1) the right to marry
    • 2) right to procreate; Note - a state may create an irrebuttable presumption that a married woman's husband is the father of her child (e.g. the cheating super model case)
    • 3) right to custody of one's children: can only be terminated if there is a compelling reason such as parental abuse or neglect
    • 4) right to keep the family together; this is includes extended family but definitely requires a familial relationship
    • 5) rights of parents to control the upbringing of their children
    • 6) right to purchase and use contraceptives
    • 7) right to abortion (used to be subject to strict scrutiny; now states cannot create an undue burden on the ability to obtain abortions)
    • 8) Right to engage in private consensual same-sex activity
    • 9) right to refuse medical treatment (even if it is life-saving medical treatment); state has a compelling interest in protecting the sanctity of life and so may require clear and convincing evidence that a person wanted treatment terminated beforehand; state can prevent family members from terminating treatment for another. BUT there's no right to physician assisted suicide.
    • 10) Right to bear arms
    • 11) right to travel
    • 12) Right to vote

    • Note - there is no fundamental right to education under equal protection or the U.S. Constitution.
  72. Abortion Rights
    The right to obtain an abortion remains a fundamental right, however, it is no longer subject to strict scrutiny. Current law says states the government, state or federal, cannot impose an undue burden.

    • Examples
    • A required 24-hr waiting period was not an undue burden
    • Requiring that abortions be performed by licensed physicians is not an undue burden
    • Prohbitions of 'partial birth abortions' is not an undue burden

    After viability, states may prohibit abortions unless necessary to protect the woman's life or health

    Government has no duty to subsidize abortions or provide them at public hospitals

    Spousal consent and notification laws are unconstitutional

    Parental notice and consent laws for unmarried minors: states can 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 enough to decide for herself.
  73. Right to Bear Arms
    • Second Amendment
    • Individuals have a right to have weapons for self defense, but has not specified the level of scrutiny to be used.
  74. Right to Travel
    • Laws that prevent people from moving into a state must meet strict scrutiny.
    • Durational residency requirements must meet strict scrutiny.
    • SCOTUS has said that for voting purposes, 50-days is the maximum allowable durational requirement.
  75. Right to Vote
    • Laws that deny some citizens the right to vote must meet strict scrutiny
    • One-person-one-vote must be met for all state and local elections
    • At-large elections (all voters cast a vote for all officeholders) are constitutional unless there is proof of a discriminatory purpose.
    • SCOTUS has said that for voting purposes, 50-days is the maximum allowable durational requirement.
    • Use of race in drawing election district lines for the purpose of benefiting minorities must meet strict scrutiny.
    • counting uncounted votes without standards in a presidential election violates equal protection.
  76. Rights triggering strict scrutiny
    • 1) Right to marry
    • 2) Right to procreate
    • 3) Right to custody of children
    • 4) Right to keep family together
    • 5) Right to control raising of children
    • 6) Right to purchase and use contraceptives
    • 7) right to travel
    • 8) Right to vote
    • 9) Freedom of speech
    • 10) freedom of association
    • 11) free exercise of religion
  77. Rights trigging "Undue burden test"
    Right to an abortion
  78. Rational Basis (Not a fundamental Right)
    • 1) Right to practice a trade or profession
    • 2) Right to physician-assisted death
    • 3) Right to an education
  79. Level of Scrutiny Unknown
    • Right to engage in private, consensual homesexual activity
    • Right to refuse medical treatments
    • Right to possess firearms
  80. Equal Protection
    Whenever the government draws a distinction among people, there is a basis for an equal protection challenge

    • 3 step analysis:
    • 1) What is the classification?
    • 2) what level of scrutiny should be applied? (most of the time, the answer is rational basis)
    • 3) Does this law meet the level of scrutiny?

    Equal Protection prohibits state dilution of the right to vote by malapportionment of electoral votes.
  81. Constitutional provisions concerning equal protection
    • 1) The equal protection clause of the Fourteenth Amendment applies only to state & local governments and never to the federal government
    • 2) Equal protection is applied to the federal government through the due process clause of the Fifth Amendment.
  82. Classifications based on race
    • Strict Scrutiny
    • Two ways of proving racial classification:
    • 1) classification exists on the face of the law
    • 2) If the law is race-neutral on its face, then proving a racial classification requires demonstrating discriminatory impact and intent.

    Important Application: discriminatory use of peremptory challenges based on race denies equal protections.

    • How racial classification benefitting minorities should be treated?
    • 1) strict scrutiny is applied
    • 2) numerical set-asides require clear proof of past discrimination
    • 3) educational institutions may use race as one factor in admissions decisions to benefit minorities and enhance diversity, BUT they may not add points to admissions scores or set aside spaces solely for individuals based on a particular race.
    • 4) public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met.
  83. Gender Classifications
    Intermediate scrutiny ; can only be allowed if there is an exceedingly persuasive justifiaction

    • How to prove gender classification:
    • 1) classification exists on the face of the law
    • 2) demonstrating discriminatory impact and intent

    • Classifications benefitting women:
    • 1) classifications based on role stereotypes will not be allowed
    • 2) classifications designed to remedy past discrimination or differences in opportunity will be allowed.
  84. Alienage Classifications
    Laws discriminating against non-citizens must meet strict scrutiny

    • Certain privileges may be reserved for citizens:
    • 1) voting
    • 2) jury duty
    • 3) being a cop, teacher or probation officer
    • BUT Notary Public's can't be reserved for citizens

    Exception: when Congress discriminates against aliens, only a rational basis test is applied.

    Intermediate scrutiny is used for discrimination against undocumented alien children
  85. Discrimination against non-marital children (i.e. illegitimate children)
    Intermediate scrutiny

    Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional; intermediate scrutiny is applied
  86. Discrimination based on grounds other than race, sex, or national origin
    • Rational basis applies to all other types of discrimination under the Constitution.
    • 1) Age discrimination
    • 2) Disability discrimination
    • 3) Wealth discrimination
    • 4) Government economic regulations
    • 5) Sexual orientation discrimination
  87. Equal Protection: Strict Scrutiny
    Law must be necessary to achieve a compelling government purpose

    Applies to suspect classifications based on race, national origin, alienage, travel (but not foreign travel), and voting
  88. Equal Protection: Intermediate Scrutiny
    Law must be substantially related to an important government purpose.

    Applies to quasi-suspect classifications based on gender, illegitimacy of children, and undocumented alien children.
  89. Equal Protection: Rational Basis Test
    Law must be rationally related to a legitimate government interest

    Applies to classifications based on age, disability, wealth, Congressional regulation of aliens, and "alienage classifications related to self government and the democratic process." Also applies to classifications only relating to economics or social welfare.
  90. Free Speech: Content-based and content neutral restrictions
    • Content-based restrictions on speech must meet strict scrutiny.
    • Two ways to find a law is content-based: (1) subject matter restriction; (2) viewpoint restriction

    • Content-neutral restrictions --> Intermediate scrutiny
  91. Prior Restraints on Free Speech
    • Court Orders suppressing speech must meet strict scrutiny
    • procedurally proper court orders must be complied with until they are vacated or overturned.
    • person who violates a court order is barred from challenging it
    • Gag Orders on the press to prevent prejudicial pre-trial publicity are not allowed.
    • Licensing. Government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. There must also be procedural safeguards, such as judicial review for denials.
  92. Vagueness and overbreadth
    Vagueness: a statute is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

    Overbreadth: a law is unconstitutionally over-broad if it regulates substantially more speech than the constitution allows.

    Fighting words are not protected speech, but statutes attempting to punish the use of such words are often found to be void for vagueness.
  93. Symbolic Speech
    Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's goal.

    • Examples:
    • 1) Flag burning - constitutionally protected
    • 2) draft card burning - not protected
    • 3) nude dancing - not protected
    • 4) cross burning - protected unless it is done w/ intent to intimidate
    • 5) contribution limits in election campaigns are allowed; but the contributor's overall expenditure limits in campaigns are not allowed.

    Note - government cannot limit the amount a person spends to get a candidate elected, as long as the expenditures are independent of the candidate and are not disguised contributions. Thus, corporations, unions and other entities may spend whatever they wish to get a campaign elected.
  94. Anonymous speech
    protected by the first amendment.

    However, a state's interest in promoting transparency and accountability in elections is sufficient to justify public disclosure of names and addresses of people who sign ballot petitions.
  95. Speech by the government
    • Cannot be challenged as violating the first amendment.
    • Government can choose to fund certain speeches and concurrently decline to fund other speeches.
    • Government speech and funding of speech is upheld if rationally related to a legitimate state interest.
  96. Less protected types of speech
    • Incitement of illegal activity
    • Obscenity and sexually-oriented speech
    • Commercial speech
    • Defamation
  97. Incitement of illegal activity
    Unprotected by the First Amendment

    Modern Test: the government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality.
  98. Obscene and sexually oriented speech
    • Test:
    • (i) the material must appeal to the prurient interest, or a "shameful or morbid interest in sex," based on a community standard
    • (ii) the material must be patently offensive under the law prohibiting obscenity, based on a community standard
    • (iii) taken as a whole, the material must lack serious redeeming literary, artistic, political or scientific value (LAPS) as determined by a national/reasonable perso standard.

    Government may use zoning ordinances to regulate the number or location of adult bookstores and movie theaters

    Child porn can be completely banned, even if not obscene. To qualify, children must be used in production of the material.

    Cannot punish private possession of obscene materials, but you can punish private possession of child porn

    government may size all the assets of businesses convicted of violating obscenity laws

    Profane and indecent speech is generally protected. Exception: free, over-the-air broadcast media. Exception: in schools
  99. Commercial Speech
    • Advertising for illegal activity as well as false and deceptive ads are not protected
    • Even true commercial speech that inherently risks deception can be prohibited (e.g. professionals advertising or practicing under a trade name; attorney, in-person solicitation of clients for profit). Notably, accountants aren't prohibited from in-person solicitation for profit.
    • Other commercial speech can be regulated if intermediate scrutiny is met
    • Government regulation of commercial speech must be narrowly tailored, but does not need to be the least restrictive alternative.
  100. Lawyers that advertise as debt relief agencies
    required that their ads include info about their legal status, nature of assistance provided, and the possibility of the debtor's filing for bankruptcy.
  101. Defamation
    • If P is a public official or running for office: P can recover for defamation only by proving w/ clear & convincing evidence the falsity of the statement and actual malice (i.e. D knew the statement was false or was reckless as to its falsity)
    • If P is a private figure & the matter is of public concern: state may allow P to recover compensatory damages for defamation by proving falsity and negligence by the D. BUT, P can only recover presumed or punitive damages by showing actual malice.
    • If P is a private figure & the matter is not of 'public concern': he can recover presumed or punitive damages without proving actual malice.
  102. Privacy and the First Amendment
    • Gov't can't create liaility for truthful reporting of info that was legally obtained from the government's records
    • Media may not be held liable for broadcasting a tape of an illegally intercepted and recorded call, so long as it did not participate in the illegality and it involves matters of public importance
    • Gov't can restrict its own dissemination of info to protect privacy.
    • The only instance where the public has a First Amendment right to attend government proceedings and have access to government papers is for criminal trials and criminal pre-trial proceedings.
  103. Speech by government employees on the job
    Not protected
  104. Categories of Places Available For Speech
    • 1) public forums
    • 2) designated public forums
    • 3) limited public forums
    • 4) non-public forums
  105. Speech in public forums
    • Public forums are government properties that the government is constitutionally rquired to make available for speech, i.e. parks and sidewalks.
    • regulations must be subject and viewpoint neutral or satisfy strict scrutiny.
    • regulations must address a time, place or manner that serves an important government purpose and leaves open adequate alternative places for communication
    • regulation need not use the least restrictive alternative
    • permit fee requirements for parades/demonstrations are unconstitutional if city officials have discretion in setting the amount of the fee.
  106. Designated public forums
    • government properties that government could close off to speech, but chooses voluntarily to open, e.g. school facilities on nights and weekends.
    • The same rules apply as for public forums.
  107. Limited public forums
    • government properties that are limited to certain groups or dedicated to the discussion of only some subjects.
    • Government can regulate speech in these forums so long as the regulation is reasonable and viewpoint neutral
  108. Non-public forums
    • government properties that the government constitutionally can and does close off to speech
    • Government can regulate speech in these forums as long as the regulation is reasonable (rational basis test) and viewpoint neutral.
    • Examples:
    • Military bases
    • Areas outside prisons and jails
    • Schools - public law schoo can require extra-curricular, school funded student groups to accept all students regardless of status or belief.
    • signs on public property
    • Airports - But can't prohibit distribution of literature
  109. Private Property
    No First Amendment Right of access to private proerty for speech purposes, e.g. shopping centers.
  110. Freedom of Association
    • laws prohibiting or punishing group memebers must meet strict scrutiny. The government must demonstrate:
    • 1) person is actively affiliated with the group;
    • 2) has knowlege of the gorup's illegal activities; and
    • 3) has the specific intent of furthering those ilegal activities or objectives.

    Laws that require disclosure of group membership must satisfy strict scrutiny.

    Free Association does not protect a right to discriminate, unless it is intimate association where the discrimination is integral to an expressive activity
  111. Freedom of Religion: Free exercise
    • free exercise clause cannot be used to challenge a neutral law of general applicability
    • government cannot deny benefits to people who quit their jobs for religious reasons
  112. Freedom of Religion: Establishment Clause
    • Three Part Test: Remember SEX!
    • 1) (S) there must be a secular purpose
    • 2) (E) the primary effect must be not be to advance or inhibit religion; and
    • 3) (X) there must not be excessive government entanglement with religion

    Government can't discriminate against religious speech or among religions unless strict scrutiny is met.

    Government sponsored religious activity in public schools is unconstitutional. BUT religious student and community groups must have the same access to school facilities as non-religious groups.

    School prayer, even if voluntary, is not allowed; not even a moment of silence.

    Government may give assistance to parochial schools, so long as it is not used for religious instruction. Government can provide parents with vouchers which they may use in parochial schools.
  113. Federal Postal Monopoly
    • Art I, S 8, Cl. 7 grants Congress the power to establish post offices and post roads.
    • This power grants Congress a monopoly over the delivery of mail.
    • No other system for delivering mail - public or private - can be established absent Congress's consent.
    • Congress has delegated to the USPS the decision of whether to allow others to compete with it. USPS has excepted private services for extremely urgent letters from the USPS monopoly.