constitutional law

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constitutional law
2011-06-26 20:18:45
con law barbri

con law CA barbri
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  1. the public function exception
    C applies if private entitiy is performing a task traditionally, exclusively done by gov
  2. rational basis test
    • if gov act is rationally related to a legitimate goverment purpose.
    • * challenger has burden of proof
  3. Intermediate Scrutiny
    • if gov act substantially related to an important gov purpose.
    • * look at actual gov objective
    • * gov act narrowly tailored
    • * gov has burden of proof
  4. strict scrutiny
    • gov act upheld if necessary to achieve a compelling gov purpose.
    • * least restrictive alternative.
    • * gov has burden of proof
  5. Equal Protection
    race & national origin
    • the EPC of the 14th guarantees that similarly situated people will be treated similarly. state and local gov may not discriminate against individuals unless certain standards are met.
    • 1. SS
    • 2. prove classification:
    • facially
    • if law facially neutral, proof requires demonstrating both discriminatory impact and discriminatory intent
  6. alienage classification
    • generally, SS is used
    • only a rational basis test is used for alienage classification that concern self-gov and democratic process (voting, jury duty, teaching ...)
  7. content based restrictions on free speech
    • must meet SS (subject matter restrict, viewpoint restrict)
    • prior restraint - court orders suppressing speech (SS)
    • content neutral laws burdening speech need only meet intermediate scru
  8. dormant commerce clause
    • 1. if law discriminates against out of state competition on its face and is unduly burdensome on interstate commerce then law is invalid unless:
    • a. state is market participant OR
    • b. law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives OR
    • c. the law favors gov performing traditional gov functions
    • 2. if the law is not facially discriminatory against out of state compeition then ask doe it still place a burden on interstate commerce?
    • a. if it does, then it is INVALID unless the state's interest in the reg outweights the burden of interstate commerce.
    • b. if it does not burden interstate commerce, then it's valid.
  9. privileges & immunities clause - Article IV
    • 1. P&I does not apply where there is no discrimination - you cannot argue undue burden for P&I clause
    • 2. if the faction denies the out of state person important economic interests or justification and there are no less restrictive means.
  10. substantive due process
    • a. law apply to everyone? this is the threshold question and then you should ask yourself - is the law arbitrary and capricious in nature?
    • b. tests - rational b for nonfundamental right, undue burden for abortion, and SS for a fundamental right (right to travel interstate, privacy, marriage, procreation, child rearing, right to vote ...)
  11. abortion (undue burden test)
    • pre-viability - state may not prohibit abortion, but may regulate it as long as they do not create undue burden on a women's right to have an abortion.
    • post-viability - (realistic possibility that fetus could survive outside mother's womb) state may prohibit abortion unless women's health threatened.
  12. establishment clause
    • Is there a sect preference on face of reg? Yes - then apply SS. No - they apply the Lemon test.
    • 1. secular purpose
    • 2. secular effect
    • 3. excessive entanglement
  13. free exercise clause
    prohibits fov from punishing someone on basis of religious beliefs. it cannot be used to challenge gov regulation unless reg was specifically designed to interfere with religion. court will apply the SS to see if the law is C.
  14. speech - content based reg
    • presumped un-C to place burden on speech via content. exceptions:
    • obscenity is not protected. speech is obscene if (1) appeals to the prurient interest in sex-use community standard, (2) is patently offensive and an affront to contemporary community standards, (3) lacks serious literary, scientific, artistic, or political value.
    • commercial speech - limited protection. must be a substantial gov interest that directly advances that interest, and is narrowly tailored to serve that interest.
    • Incitement - not protected speech.
  15. speech: content neutral
    time, place, manner regulations
    • Public- government properties that government is constitutionally required to make available for speech (parks, etc.)

    • Test- 1.) regulation must be content neutral, 2.) narrowly tailored, 3.) serves important government interest, and 4.) leaves open alternate means.

    • Non-Public - place that are not open to the public such as military bases, sidewalks outside post offices, etc.

    • Test- 1.) must be viewpoint neutral and 2.) reasonably related to legitimate gov purpose.

    • Limited Public Forum aka designated public forum - public ppty not traditionally open to speech related activities, but which the gov has thrown open for such activities.

    • Test- same as public

    • Private- there is no 1st amendment right in private location.
  16. 1st amendment: Free Speech
    prohibits congree from abridging the freedom of speech. this prohibition is applicable to the state through the 14th.
  17. prior restraint
    A prior restraint restricts speech before it occurs, rather than punish it afterwards. The gov must show some special societal harm would result otherwise. To be valid, a system for prior restraint must provide the following procedural safeguards: 1.) the standards must be narrowly drawn, reasonable, and definite; 2.) injunction must promptly be sought; and 3.) there must be prompt and final determination of the validity of the restraint.

  18. standing for organizations
    • 1. injury in fact to members that would give individual members right to sue on thier own behalf
    • 2. injury to members is related to org's purpose
    • 3. neither the nature of claim nor the relief requires participation of the individual members in the lawsuit