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Flashcards in Con Law Deck (44)
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Establishment Clause

If facially prefers some religions over others -> State's burden strict scrutiny
If facially neutral -> lemon test 1. Purpose of law (secular) 2. Effect (primary not to advance/inhibit religion) 3. Entanglement (not excessive) schools


3rd Party Standing

(1) the claimant has suffered a non-constitutional injury; and (2) it would be difficult or unlikely for the party experiencing the constitutional injury to assert their own rights; and (3) there is a "special relationship" between the claimant and the third party. This includes buyer-seller. OR incapacity of the P.


Bill of attainder vs. Ex post facto

attainder: legislation that inflicts punishment (1) w/o trial (2) singling out named indivs or in an easily ascertainable group for past conduct.
EPF Art I S9 feds S10 states  new crime in past  more punishment  less evidence  longer SoL after expired


Scrutiny for voting laws

Total ban -> strict scrutiny.
Process regulation -> undue burden balancing test / minimum rational basis scrutiny
OK: reasonable residency reqs, registration reqs, time and manner regs, felon disenfranchise, state elector selection
NOT OK: poll tax, school bd only parents and property owners, vague vote counting


Contracts Clause

State may not impair existing contracts. Must 1. have existed before 2. be materially impaired BUT PRIVATE Ks can be modified by legislature for public interest and regulation narrowly tailored to that interest. "A private contract may be modified by the legislature under its police power when necessary to serve an important and legitimate public interest, and the regulation is reasonable and narrowly tailored to promote that interest". PUBLIC Ks no impairing the obligation of public contracts other than to a reasonable degree when the government seeks to modify its own contracts.


Taxation Power

1. as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes. 2. Further, even when Congress does not have power to regulate the activity taxed, the tax will be upheld if a. Subjective: the "dominant intent" is to raise revenue and b. Objective: the tax does, in fact, raise revenue--even where it has a substantial regulatory effect. The modern judicial trend is to uphold any tax as valid if it is, in fact, a revenue-raising measure.


Substantive Due Process

SCAMPERD: Sexual orientation, Contraception, Abortion, Marriage, Possess obscenity, private Education, family Relations, Death. ALSO 14th Am P and I right to travel, right to vote. FINALLY generally protects against arbitrary and irrational federal government action. Must be rationally related to a legitimate l government interest.


Supremacy Clause: Federal Functions

the Supremacy Clause prevents the states from regulating the activities of agents of the federal government if the regulation will interfere with the government's ability to carry out its federal functions.


Free exercise

purposefully interference with religious conduct -> strict scrutiny.

incidentally regulates religious conduct -> 1. Reg. neutral wrt religion 2. General applicability (Smith) so can regulate:

OK to regulate: peyote, polygamy, air force head gear, Amish social security


Federalism limits on states

1. functions only sovereign states do 2. individual const. rights 3. preemption 4. sovereign immunity 5. no taxation of federal functions 6. dormant commerce clause (facial and incidental burden)


Federalism limits on federal government

1. no taxation for a. unique state govt activities and b. essential state govt functions 2. anti-commandeering OJO! can prohibit things, just not affirmatively require


Spending Power

Congress can condition receipt of federal funds on conformity to federal regulations, provided the 1. conditions are reasonably related to the goals of the spending program 2. not coercive 3. for the general welfare 4. not ambiguous


Dormant Commerce Clause

- discrim on face: state burden to show 1. Compelling interest AND 2. Discrim necessary to reach that end
- incidental burden: state burden show 1. Important state interest 2. Balance against not excessive burden (NOTE: in state licensing requirements here)
EXCEPTIONS: Cong. Can authorize OR market participant when state acting like private actor



(i) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (ii) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (iii) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value, as judged by the national standard. Child pornography never protected.


Eleventh Amendment Immunity

no $ damages agst states BUT
- states and US P can sue,
- city/county D can be sued,
- inj relief,
- state waiver,
- 13-15 enforcement power abridge



1. Meaning of state law unclear 2. Avoid const issue OR state ct proceeding going on


Congressional power over JDX

lower cts can do anything, USSC can’t stop from hearing fed law, can’t enlarge original USSC JDX


Commerce power

1. Channels (water, RR, air)
2. Instrumentalities (goods, ppl, trucks – any motive)
3. Activities w. substantial effect – cumulative (even if entirely one state)
NOT noneconomic activity – possession, violent crime, loansharking
BUT yes if part of a comprehensive scheme


Congress's war powers

1. Declare (OJO NOT the president) 2. Raise & support army 3. Navy 4. Militia → draft, $ controls, civilian confinement, cts


Enforcement powers

 13th: bans slavery/invol servitude, badges and incidents, reaches private action
 14th: prohibits states from DP, EP, P and I irrational discrim. → congruent & proportional NOTE: abrogation
 15th: prohibits states from race discrim in voting


Prez Pardon Power

only offenses agst US. NOT 1. state 2. impeachment 3. civil


Prez Military Power

respond to attack NOT declare war, battlefield tactical decisions beat cong.


Bill of Rights NOT incorporated

 grand jury (5th)  jury trial in civil (7th)  excessive fines (8th)


State NOT EP for out of staters

visitors → privs AND imms Art IV OJO persons only. TEST: if discrim substantially related to substantial interest sep. from discrim. NOT ALLOWED: costlier commercial license, commuter tax, abortion, employment. ALLOWED: recreational license payment, in-state nature preservation

migrants → privs OR imms 14th RtTravel also under substantive due process. OJO persons only. International travel subject to security.



1. Before viable 2. No undue burden 3. After viable life/health exception
NOT OK: spousal/parental consent (wo bypass), spousal notification, recording patient names
OK: PC w. bypass, waiting period, truthful info, refusing public funds, ban not safe methods


Regulatory Takings

so onerous tantamount to direct taking. “public use” = public purpose broad
TESTS: 1. permanent physical invasion no matter sml 2. Depravation of all econ beni use 3. Balance econ impact v. govt interest


Equal Protection

RB = plaintiff burden show NOT rationally related to legit interest → sexual orientation, alienage for feds

IS = govt burden substantially related to important interest → sex, illegitimacy, maybe undocumented kids. SEE E.G. sex ok in draft, statutory rape age. Af action upheld for general past discrim

SS = govt burden narrowly tailored to a compelling interest → race, alienage (states), national origin, facially discrim dom travel, total ban voting
 af action IF 1. Remedying past discrim (close to affected) 2. Diversity in higher education (one factor, no weight)
 public function exception state alienage: police officers, govt officials, public school teachers, NOT ministerial job


Examples: Pass/Fail Establishment Clause

NOT OK: prayer in schools, moment of silence in context, 10 comms in class, graduation prayer, football prayer, 10 comms in couthouse, delegate authority to religious org

OK: religious club, prayer in state legislature, crèche, permit for cross if everyone can get, 10 comms in context, Sundays

tax deductions: neutrality (private schools) OK

aid to religious schools: bus fair, standardized tests, books, lunch, library, computers, interps BUT NOT rel. instruction, rel school


Unprotected/Low value Speech

UNprotected: 1. advocating violence 2. fighting words 3. hostile audience 4. obscenity
LOW value: defamation, commercial speech, sexual speech


Advocating violence v. Hostile audience

Advocating Violence: state can regulate only where "advocacy directed to inciting or producing imminent lawless action and is likely to" do so

Hostile Audience: speech eliciting immediate violent reaction against speaker. Police must make reasonable efforts to protect speaker first.