Constitutional Law Flashcards
Establishment Clause
Prohibits gov’t from taking action respecting the establishment of religion. Upheld if:
(1) serves a secular purpose;
(2) primary effect neither advances nor inhibits religion; and
(3) does not produce excessive government entanglements with religion.
Fundamental Rights
STRICT SCRUTINY (necessary for compelling interest - BOP on Gov’t)
Marriage, Children/family, Contraceptives
1st A freedom of speech/religion, Interstate Travel, Vote
Unknown: abortion / homosexual relations / refuse medical tx / physician assisted suicide
Less protected Speech
- Obscenity (Requires: appeal to purient interest; patently offensive; lack any serious literary, political, artistic, scientific value)
- Fighting Words
- Incitement of Illegal Activity
(Requires that “imminent illegal conduct is likely” and speaker “intended to cause illegal activity”) - Defamation
- Commercial Speech
Content or Viewpoint Based Restrictions on Speech & Press
Presumptively Unconstitutional: Strict Scrutiny
Time/Place/Manner Restrictions on Speech & Press
Forums:
Public/Designated - Valid if: (1) content neutral (2) narrowly tailored to serve important interest; and (3) leave alternative channels of communication
Limited/Non-public - Valid if (1) viewpoint neutral; and (2) reasonably related to legitimate purpose
Court has upheld: Zoning on adult theaters/bookstores; nude dancing bans; symbolic speech; time/place/manner restrictions that are content neutral
Free Exercise Clause
Freedom of sincere religious belief -
Cannot be used to challenge a neutral law of general applicability.
Commercial Speech Restrictions
Regulation must serve “substantial gov’t interest” and be “narrowly tailored” (between interm/strict).
Equal Protection (14th A)
Gov’t actor treats a class of similarly situated persons differently (applies directly to states; only indirectly to federal gov’t thru 5th A).
Rational Basis (non-suspect class): age, poverty, disability Intermediate(quasi-suspect class): gender, illegitimate children Strict Scrutiny (suspect class): race, national origin, alienage, religion
** But states can regulate aliens when it comes to function of self-gov’t; AND Congress can regulate aliens (both under rational basis review).
Substantive Due Process
Gov’t act that affects rights of all persons to engage in some conduct or activity.
Fundamental Rights - Strict Scrutiny
Non-fundamental Rights - Rational Basis
Proving Discriminatory Classification under Equal Protection
- Law discriminates on face;
- Law is neutral but discriminates as applied;
- Discriminatory purpose AND Disparate Impact (effect alone is insufficient)
Procedural Due Process
State must provide fair process or procedure before it may deprive a person of “life, liberty or property.”
Requires: Opportunity to be heard by a fair and neutral decision maker.
Courts balance: (1) Importance of individual interest being taken; (2) value of specific procedural safeguards to interest; and (3) Gov’t interest in fiscal and administrative efficiency.
Contracts Clause
State laws cannot retroactively invalidate already existing contracts unless they serve an important and legitimate interest and are narrowly tailored to promote that interest.
(Intermediate Scrutiny)
State Action Doctrine
Only the federal and state gov’ts can violate constitutional rights BUT the 13th Amendment applies to private actors too.
Commerce Clause Power
Congress can regulate:
- Channels
- Instrumentalities
- Activities (economic and commercial regulation will be upheld if there is a “conceivable rational basis” for concluding that the aggregate substantially affects interstate commerce.)
Dormant Commerce Clause
Local gov’t violate by:
- Discriminating against out-of-state competition;
- Unduly burdening interstate commerce; OR
- Regulating wholly out-of-state activity
Exceptions:
- Market Participant
- Congress Approves
- Necessary to important non-economic state interest
