CON. LAW

Question 1

Equal Protection Definition

Answer 1

The 14th Amendment Equal Protection Clause protects people against governmental discrimination on the basis of class membership.

Under the 14th Amendment, the state/local/federal governments cannot deny any person of the equal protections of the law.

Applies when the government treats someone different based on that person’s membership in a protected class of people.

Question 2

Equal Protection Strict Scrutiny

Answer 2

Applies to discrimination against a suspect class, including race, national origin, or alienage.

The government has the burden of showing that the measure was necessary/narrowly tailored to further a compelling government interest.

NECESSARY + COMPELLING

Question 3

Equal Protection Intermediate Scrutiny

Answer 3

Applies to discriminations made against a quasi-suspect class, such as on the basis of gender or illegitimacy.

The government bears the burden of showing that the measure taken was substantially related to an important.

SUBSTANTIALLY RELATED + IMPORTANT

Question 4

Rational Basis Review

Answer 4

A court will apply rational basis review in scrutinizing whether the government has infringed upon a non-fundamental right or has discriminated against a non-suspect class, such as wealth, age, disability, or sexual orientation.

The plainitIff must prove that the law is not rationally related to any legitimate government interest.

RATIONALLY RELATED + LEGITIMATE.

Question 5

State Action Doctrine

Answer 5

Government action is required for a plaintiff to have standing in opposition of an alleged constitutional violation.

When a private actor is performing an action that is traditionally and exclusively a government function, a state action is present.

Question 6

Procedural Due Process

Answer 6

The 5th Amendment procedural due process clause, as applied to the states by the 14th Amendment, protects people against the governmental deprivation of life, liberty, or property without due process of the law.

Due process = notice and the opportunity to be heard.

To analyze whether due process was adequate, a court will balance (1) the importance of the individual interest and (2) the risk of erroneous deprivation of that interest, against (3) the government’s interest in streamlined procedures.

Question 7

Substantive Due Process

Answer 7

The 5th Amendment substantive due process clause, as applied to the states by the 14th Amendment, protects rights that are not enumerated in the constitution.

Courts will apply strict scrutiny to determine if the government has infringed upon a fundamental right, such as interstate travel, voting, parental rights, or the right to privacy.

If the right infringed is not considered fundamental (such as economic rights), then rational basis review is applied.

Question 8

Takings Clause

Answer 8

The 5th Amendment Takings Clause, as applied to the states by the 14th Amendment, protects against the governmental taking of private property for public use without just compensation.

“Taking” = Physical, Regulatory, Conditional Permit/Exaction

“Public Use” = Very broad, any “public purpose”, including for commercial use.

“Just Compensation” = Fair market value.

Question 9

Regulatory Takings

Answer 9

When a regulation results in:
- Some permanent physical invasion, or
- Deprivation of ALL economically beneficial use of the property,
it is a taking under the 5/14th Amendments.

Courts consider the (1) economic vs. physical impact on the property as well as (2) the duration and character of the regulation.

Question 10

Conditional Permits/Exactions

Answer 10

When a regulation restricts an owner’s use of their property as a condition to allowing them to develop the land, it is a taking, unless the government shows:

• A logical nexus between the regulation and the government purpose, and
• A “rough proportionality” between the impact of the proposed development and the legitimate government interests served.

Question 11

Freedom of Speech Definition + Threshold Issues

Answer 11

The First Amendment, applied to the states by the Due Process Clause of the Fourteenth Amendment, protects against government regulation of certain speech. In general, the government may not interfere with or distort the marketplace of ideas.

As a threshold issue, government regulations may not be overbroad, vague, or serve as a prior restraint. The First Amendment is also subject to the state action doctrine, requiring an action by the government barring certain exceptions.

Analysis of a regulation’s legality depends on whether the regulation was content-based or content-neutral.

Question 12

Fighting Words

Answer 12

Fighting words fall outside of the protections of the 1st Amendment, however, what constitutes unprotected fighting words is construed narrowly.

Fighting words must be likely to incite an ordinary person to commit immediate physical retaliation. (More than annoying or offensive) Must be a direct and personal insult, such as hate speech.

Government regulations of “fighting words” are often unconstitutionally overbroad or vague.

Question 13

Commerce Power

Answer 13

Congress can regulate all channels, instrumentalities, or economic activities that “substantially affect” interstate commerce.

Congress cannot regulate purely intrastate non-economic activity (but may condition federal funding on state enforcement of federal laws under their spending power).

Question 14

Dormant Commerce Clause

Answer 14

States cannot discriminate against out of state economic actors.

If a state law directly discriminates against out of state economic actors, the state must how that the regulation serves a COMPELLING state interest, and that it is NARROWLY TAILORED to serving that interest.

If a state law only incidentally burdens out of state economic actors, the court will balance the burden imposed on interstate commerce against the local benefits of the law. Law will be upheld unless the burden outweighs the local benefit.

Question 15

Dormant Commerce Clause Exceptions

Answer 15

If the state is acting as a market participant, or if Congress affirmatively authorized the states to legislate in that area.

Question 16

Anti-Commandeering Doctrine

Answer 16

Congress may not commandeer states to enforce federal laws — they must either regulate directly with their commerce power or indirectly with their spending power.

Under Congress’s spending power, they may condition federal funding on state enforcement/enactment of laws.

However, Congress cannot “coerce” states with funding if a state would have “no true choice” but to accept the funding.

Question 17

Establishment Clause

Answer 17

“Under the Establishment Clause of the 1st Amendment, as applied to the states through the Due Process Clause of the 14th Amendment, Congress shall not establish a religion of prohibit the free exercise thereof.”

When a law prefers one religion over another, strict scrutiny applies. The law will be unconstitutional under the First Amendment Establishment Clause unless it is narrowly tailored to serve a compelling government interest.

When a law is neutral on its face regarding religion, the Supreme Court has held that the appropriate test is to interpret the Establishment Clause using an originalist approach, examining historical practices and understandings, including an examination of the potential for coercion.

Question 18

Free Exercise Clause

Answer 18

“Under the 1st Amendment, as applied to the states through the Due Process Clause of the 14th Amendment, Congress shall not establish a religion or prohibit the free exercise thereof.”

Under this clause, the sincerity of one’s religious beliefs are absolutely protected, however, the government may regulate conduct motivated by religious belief if the regulations is “neutral with respect to religion” and is of “general applicability”.

Examples: Criminalizing peyote and polygamy; enforcing military dress codes, etc.

When a law is facially neutral and is of general applicability, but still has an INCIDENTAL impact on religion on affects a fundamental right, the rational basis standard applies.

When a law is facially neutral and is of general applicability, but has a DISPARATE impact on religion, strict scrutiny applies.

Question 19

Freedom of Association

Answer 19

The government cannot prohibit or punish based on group membership.

Exception: Employment in a high-level policy-making position.

Question 20

Content-Based Regulations on Speech

Answer 20

In general, content-based regulations on speech are subject to strict scrutiny and are therefore unconstitutional unless the regulations is necessary and narrowly tailored to serve a compelling government interest. A regulation on speech is content-based if it is centered upon substance or the specific message being conveyed.

Strict scrutiny does not apply if the government is the speaker, the type of speech is considered unprotected or “low value”, or the regulation is content-neutral.

Courts will apply rational basis review to regulations of unprotected speech, including speech inciting immediate lawless action, fighting words, obscene speech, hostile audience speech, and defamatory speech.

Question 20

Unprotected Speech

Answer 20

Subject to rational basis review.

1. Words inciting immediate lawless action.
2. Fighting words.
3. Hostile audience speech.
4. Obscene speech.
5. Defamatory speech.

Question 21

Speech Inciting Imminent Lawless Action

Answer 21

Speech that advocates for violence or unlawful action falls outside of the protections of the 1st Amendment if it is:
- LIKELY to produce unlawful action;
- Unlawful action is IMMINENT as a result of the speech; and
- The speech INTENDED to cause unlawful action.

In other words, there must have been a “clear and present danger that the speaker intended to invite imminent lawless action”.

Question 22

Obscene Speech

Answer 22

Obscene speech is not protected by the 1st Amendment.

Courts will apply the Miller Test to determine if the speech is obscene. Under Miller, speech is obscene and unprotected if:
- Applying a LOCAL CONTEMPORARY COMMUNITY STANDARDS, the work, taken as a whole, appeals to the prurient interest.
- The work depicts, in a patently offensive way, sexual conduct specified by state law.
- Applying NATIONAL STANDARDS, the work lacks artistic, literary, scientific, or political value.

Question 23

Content-Neutral Regulations in a Public Forum

Answer 23

To be lawful under the 1st Amendment, government regulation of speech in a public forum must be:

1. Content-neutral as to both subject matter and viewpoint (does not prefer some messages over others);
2. Be narrowly tailored to serve an important government purpose; and,
3. Leave open alternative channels of communication.

Question 24

Commercial Speech

Answer 24

The Central Hudson Test is applied to determine if a regulation of commercial speech is in violation of the 1st Amendment.

A government regulation of commercial speech that is not deceptive, misleading, or relating to unlawful activity must (1) serve a substantial government interest, (2) directly advance that interest, and (3) not be more extensive that necessary in advancing that interest.

Commercial speech that is deceptive, misleading, or relates to unlawful activity is not protected by the 1st Amendment.

Question 25

Content-Neutral Regulations in a Non-Public Forum

Answer 25

Non-public forums include government owned property that is not open to the public, such as jails, military bases, power plants, etc.

Regulations of content-neutral speech in a non-public forum must be reasonably related to a legitimate government purpose.