Constitutional Law

Question 1

Dormant Commerce Clause (General Rule)

Answer 1

State regulation of interstate commerce can be neither discriminatory nor unduly burdensome.

Question 2

Discriminatory Laws/Regulations under DCC

Answer 2

A state law that discriminates against out-of-state competition is invalid unless:

1. The law furthers an important, non-economic interest and the law/regulation is narrowly tailored to achieve that objective, or
2. The state is acting as a market participant, or
3. The government action in question is a function traditionally reserved to government.

Question 3

Unduly Burdensome Laws/Regulations Under DCC

Answer 3

A law/regulation that unduly burdens interstate commerce may be upheld if:
1. it is rationally related to a legit government interest, and
2. the burden on interstate commerce is outweighed by the benefit to the state.

Question 4

Privileges & Immunities Clause

Answer 4

P&I prohibits state and local government from discriminating intentionally against non-residents re: rights fundamental to national unity (which are usually commercial activities, or the right to practice one’s profession)

(!) does not apply to corporations or aliens.

Question 5

Government Regulation of Speech in Public/Designated-Public Forums

Answer 5

Speech in public and designated forums may be regulated by TPM regulations that are:

(1) content neutral (subject matter and viewpoint)

(2) are narrowly tailored to serve an important government interest, and

(3) leave open alternate channels of communication.

Question 6

Regulation of Speech in Limited-Public and Non-Public Forums

Answer 6

Government regulation designed to reserve the forum for its intended use will be upheld if:

(1) regulations are viewpoint neutral, and

(2) regulations are reasonably related to the intended purpose of the nonpublic forum.

Question 7

Definition of Public Forum

Answer 7

Public Forum = public property that has been historically open to speech related activities (sidewalks, public parks)

Question 8

Definition of Designated Public Forums

Answer 8

Designated Public Forums = public property that is not historically open to speech-related activities, but for which government has opened for speech activities (e.g., a public school during after school hours used by recreational or community clubs and associations).

Question 9

Definition of Limited Public Forum

Answer 9

Limited Public Forum = public property not traditionally open for speech-related activities but has been made open for speech activities for a particular purpose (e.g., using a public school gymnasium to host a town hall event).

Question 10

Definition of Non-Public Forums

Answer 10

Non-Public Forums = government properties not historically linked with speech and assembly and are not open for speech activities (e.g., military bases, sidewalks on post office property, school while classes are in session, government workplaces).

Question 11

Constitutionality of Laws that Prohibit or Punish Membership/Association

Answer 11

Laws that prohibit or punish membership or association with a particular group is subject to strict scrutiny.

To punish or prohibit a person’s membership or affiliation, it must be shown that the person:

1. is actively affiliated
2. possesses knowledge of illegal activities, and
3. posesses a specific intent to further those illegal activities.

Question 11

Test for Obscenity

Answer 11

Rule: speech is obscene and therefore unprotected by the First Amendment if:

1. It appeals to the prurient interests in sex (based on local/community standards),
2. It is patently offensive (based on state/local law), and
3. When taken as a whole, the material lacks serious artistic, literary, political, or educational value.

Question 13

What is the Establishment Clause?

Answer 13

Constitutional provision that prohibits the government from directly or indirectly coercing individuals to exercise or refrain from exercising their religion.

Question 14

Establishment Clause Analysis

Answer 14

If a law discriminates against a religion, the law must satisfy strict scrutiny and the government must show:

1. The law is narrowly tailored,
2. To achieve a compelling government interest, and
3. That the least restrictive means was used.

Question 15

What is the Free Exercise Clause?

Answer 15

The FEC prohibits government from punishing a person based on their relgious belief.

• Discriminatory Laws = subject to strict scrutiny
• Neutral Laws of General Applicability = not prohibited by FEC

Question 16

Discriminatory Laws Under FEC

Answer 16

A law is discriminatory and subject to strict scrutiny under the FEC if the law is either:

1. Not neutral on its face (motivated by a desire to interfere with or favor a specific religion), or
2. Is facially neutral but not generally applicable (the law is silent on religion, but it targets religion generally or a specific religion by design).

Question 17

General Welfare Clause

Answer 17

General Welfare Clause empowers Congress to spend and tax for the general welfare, but it does not empower Congress to regulate for the general welfare.