BARBRI - Constitutional Law Flashcards
What is the Barbri Constitutional Law MBE Approach?
1) Identify what level of government is acting? (i.e. states, congress etc.)
2) Determine if question is a “powers” or “rights” question
3) Match appropriate power/right to rule or test provided by constitution
Congress’ Commerce Powers can regulate:
1) Channels of interstate commerce
2) instrumentalities of interstate commerce
3) Any activity which has a substantial economic effect on interstate commerce
What are the tests if the rule Congress is enacting is primary economic vs. non-economic?
Economic: Upheld if rational basis exists to conclude activity substantially affect interstate commerce
Non-economic: Upheld if Congressional finding that activity substantially affects interstate commerce
DORMANT COMMERCE CLAUSE
State regulation on interstate commerce will be upheld only if:
- Regulation is non-discriminatory (doesn’t favor instate interests over interstate commerce)
- Regulation does not unduly burden interstate commerce
What is state action which may infringe on rights?
- Must be governmental action
- May apply to private conduct if state is significantly involved in the conduct of private party
What are the three levels of scrutiny applied when similarly situated people are being treated differently? (EQUAL PROTECTION when)
1) Strict scrutiny
2) Intermediate scrutiny
3) Rational Basis
When does strict scrutiny apply in equal protection analysis?
1) Discrimination is based on suspect classification (Race, Alienage or National Origin “R.A.N.”)
2) Fundamental right is implicated (Right to vote, travel, privacy)
ALIENAGE EXCEPTION: Discrimination concerning self-government or where governing is involved (ex. police, teachers, serving on a jury subject only to rational basis scrutiny)
OR
Federal Government is state actor.
Right to Privacy include what right? (hint CAMPERS)
Contraception
Abortion
Marriage
Procreation
Education, private
Relations, family
Sexual relations
When applying strict scrutiny what test must be applied? (Equal Protection)
BURDEN IS ON THE STATE TO SHOW THAT the
1) Law must be NECESSARY (no less restrictive means) to achieve
2) COMPELLING governmental interest (necessary or crucial for society)
When is intermediate scrutiny applied in equal protection analysis?
1) Discrimination is based on gender
2) Discrimination on child being born to unwed parents
What test is applied under intermediate scrutiny?
1) Law is SUBSTANTIALLY related (close “fit” needed–not necessary least restrictive means)
2) IMPORTANT government interest (Something less than compelling; something more than legitimate. Gender discrimination–requires “exceedingly persuasive justification”)
When does rational basis applied in equal protection analysis? (Equal Protection)
When neither strict scrutiny nor intermediate scrutiny apply.
Applies if discrimination is based on Age, Poverty/wealth, Mental incapacity and necessities for life
OR:
ALIENAGE EXCEPTION: Discrimination concerning self-government or where governing is involved (ex. police, teachers, serving on a jury) or Federal Government is state actor (immigration and naturalization power).
What is the rational basis test?
PLANTIFF must show:
1) law is NOT RATIONALLY RELATED
2) to any LEGITIMATE GOVERNMENT INTEREST
What are Barbri first amendment question approach?
Step 1: Consider facial attack on statute: Overbreadth (punishes protected and unprotected speech), Vagueness (average intelligence would have to guess at its meaning) or Prior restraints
Step 2: Determine if statue is regulating content of speech/expression or conduct of speech/expression
IF CONTENT -> Apply strict scrutiny
IF conduct -> Apply time, place, and manner test
What is the Time, Place and Manner Test when applied to PUBLIC FORUM?
PUBLIC FORUM
Regulation must:
1. Further important government interest
2. be narrowly tailored
3. Leave open alternative channels of communication
