Constitutional Law Flashcards
What is standing?
What is third-party standing?
What is organizational standing?
Standing: 1) Injury; 2) Causation; 3) redressability
Third-party standing: a P with standing may assert the rights of a third party where P has suffered injury and either a) P’s injury adversely affects his relationship with third parties and b) injured party is unlikely or unable to assert his own rights.
Organizational standing: organizations always have standing if the injury is to the organization itself. Organization may sue on the members behalf if 1) injury to the members that would give members standing to sue individually; 2) injury is related to the organization’s purpose; and 3) neither claim nor relief requires participation of individual members
What is the Dormant Commerce Clause test and exceptions
Congress has broad commerce power and where Congress has not acted, state and local laws may regulate aspects of interstate commerce if it is neither discriminatory nor unduly burdensome.
Test - a state/local law regulating interstate commerce is invalid if it is: a) discriminates against out-of state competition; b) unduly burdens interstate commerce; or c)regulates wholly out-of-state activity
Exceptions: a state burdening interstate commerce is valid if either: a) it is necessary to an important state interest; b) state is a market participant; c) traditional government function; d) congress approves
Post-Civil War Amendments
13th Amend.: prohibition against slavery and involuntary servitude. Note - applies to private actions by its terms.
14th Amend.: prohibits states from depriving any person of life, liberty, or property without due process and equal protection
15th Amend.: prohibits state and fed govts from denying any citizen the right to vote on the basis of race and color
Levels of scrutiny
Rational basis: a law will be upheld if it is rationally related to a legitimate government purpose. Challenger bears the burden. The law is almost always upheld.
Intermediate scrutiny: a law will be upheld if it is substantially related to an important government purpose. Government bears burden of proof.
strict scrutiny: a law will be upheld if it is necessary to achieve a compelling government interest. Government bears burden of proof.
Taking Clause 3-Part Analysis
The 5th Amendment prohibits government from taking private property without providing just compensation to the owner and/or occupant.
3-part analysis - to determine if a taking is constitutional, ask: 1) has there been a taking?;
2) is the taking for public use?;
3) is just compensation paid?
Equal Protection Analysis
Equal protection applies to state and local governments through the 14th amendment and applies to the federal government through the 5th Amendment
Analysis:
1) is there a discriminatory classification? (can be on its face, facially neutral applied in a discriminatory manner or discriminatory motive/purpose)
2) what level of scrutiny applies?
3) Does the classification satisfy the appropriate level of scrutiny?
Free Speech Analysis
protected speech vs unprotected
The 1st Amendment protects freedom of speech. Whether speech is protected depends on whether it is protected speech or unprotected speech.
Protected speech - where protected speech is at issue, the level of scrutiny depends on whether the speech restriction is a) content-based or b) content neutral
A. content based restriction - strict scrutiny: the government must show that the restriction is necessary to achieve compelling government interest
B. content neutral restriction - 1) be content-neutral; 2) be narrowly tailored to serve an important government interest; 3) leave open adequate, alternative channels of communication.
Note: be sure to analyze whether it is a public forum or limited/non public forum
Symbolic Speech Analysis
1) The regulation furthers an important government interest; 2) That government interest is unrelated to suppression of the message; and 3) the impact on speech is no greater than necessary to further the important government interest
Incitement vs fighting words
incitement - Government may punish speech if: 1) There is a substantial likelihood the speech will bring about imminent illegal activity; and 2) the speech is aimed at causing imminent illegality
Fighting words: Government may punish speech if it is likely to cause an immediate violent response against the speaker. Note - may be vague, overbroad or content-based.
Obscenity
Expression is obscene if: 1) it appeals to prurient interests (average person in community); 2) it is patently offensive in its sexual portrayal; 3) taken as a whole, the material lacks serious literary, artistic, political, or scientific value (based on national standard)
Commercial Speech - unprotected vs protected
Unprotected: commercial speech is unprotected if it is either false, misleading, deceptive, or illegal
Protected commercial speech: 1) There is a substantial government interest in regulating the speech; 2) the regulation directly advances that government interest; and 3) the regulation is not more extensive than necessary to serve that government interest
Freedom of Religion
Prohibits government acts that establish/sponsor religion or give preference to one religion over another. Must apply Lemon test:
1) There is a secular purpose behind the act;
2) Act’s primary effect neither advances nor inhibits religion;
3) Act does not create excessive government entanglement with religion
Freedom of Association
Protects the right to participate in social gathering, club or org. Government interference with association is valid only if:
1) government act is in pursuance of a compelling govt. interest; and
2) That interest cannot be achieved by less restriction means
