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Flashcards in Con Law - SC Deck (54)
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Procedural Issues


A. Case / Controversy

B. Standing

C. Ripeness

D. Mootness

E. Political Question

F. Supreme Court Jurisdiction

G. Adequate State Grounds

H. Abstention

I. Declaratory Relief

J. Eleventh Amendment


Free Exercise Clause


1st Amendment protects free exercise of beliefs


Establishment Clause


Government will neither aid or establish religion (lemon test)


Equal Protection


Government regulation with arbitrary classification treating similarly situated people differently


Classify Discrimination

(Non-Suspect Class)


Social policy for non-suspect class = rational basis




A federal court will not hear a case unless plaintiff has been harmed, or there is an immediate or imminent threat of harm.

Does plaintiff intend to do an act that will subject them to imminent criminal prosecution?




If the relief sought has been obtained or it is no longer a realistic solution, the court will not hear the case.

Some seeks admittance to cllege, alleging racial discrimination, but then admitted, the case is moot.

Be aware of repetition




Whether the plaintiff has a stake in the outcome?

Three Components

1) a specific injury, greater and different from the injury all persons suffer because the government is engaged in an unconstitutional action;
2) a casual connection between the injury and the defendant’s conduct complained of;
3) a ruling favorable to plaintiff would eliminate the harm to the plaintiff

Article III requires that the person must show a direct and immediate personal injury, directly traced to a challenged action (causation) and likely to be redressed by the judicial relief sought.


Third-Party Standing


A plaintiff may assert the constitutional rights of others if plaintiff has suffered injury and third parties find it difficult to assert their own rights or plaintiff’s injury adversely affects plaintiff’s relationship with third parties.


Exists where “close nexus” i.e., substantial relationship between the claimant and the third party, high risk of compromising substantial rights or not reasonable for third party to assert own rights (NAACP)


Organizational Standing


An organization has standing to challenge government action that injures the organization, and it can also challenge action that injuries its members if:

1) there is an injury in fact to members that would give individual members standing;

2) the injury is related to the organization’s purpose;

3) neither the nature of the claim nor the relief requires participation of the individual members in the lawsuit.


Eleventh Amendment


Lawsuit against a state government or a state government officer. 11th amendment protects state, not local (county or municipal) governments. Following are barred:

1) actions against state governments for damages;

2) actions against state governments for injunctive or declaratory relief where the state is the named party;

3) actions against state government officers where the effect of the suit is that retroactive damages will be paid from the state treasury or where state land would be taken away;

4) actions against state government officers for violation state law.


Commerce Clause


Article I, §8 gives Congress the power to regulate commerce with foreign nations and among the several states (to assure survival of a non-fragmented central government and to prevent interstate rivalries), and with the Indian tribes.

Explain: Under Gibbons v Odgen commerce was defined as “plenary” including all commercial intercourse involving more states than one (regulate the channels of interstate commerce).

Explain: Cases have extended the commerce clause to involve the areas of crime, discrimination and modernly to almost any phase of the economy, national or local, which taken “seperately or cummulatively” effects interstate commerce (regulate activities that have a substantial effect on interstate commerce).

Argue the facts of the hypothetical

Modern decisions: Have treated commerce clause almost like a “Federal Police Power” permitting congress to prevent almost any interstate activity deemed adverse to public health or welfare.

Feds will argue: Commerce power extends to any issue substantially affecting interstate commerce. The Necessary and Proper Clause can be used as a means of effectuating their goals.

States will argue: A strict interpretation of the Tenth Amendment to particualrly the areas of health, safety, morals, welfare and activity does not substantially affect interstate commerce (LOPEZ)


Dormant Commerce Clause (State Statute)


Article 1, §8 gives Congress power but not exclusive power. States have concurrent power through the 10th Amendment to regulate in ways that have an effect on interstate commerce. Thus an objection to state authority rests entirely on the Dormant Commerce Clause.

Issue: Does state law violate the Constitution by infringing upon Congressional Commerce Power?

Principal: Federal Commerce Power, although unexercised by Congress may by its own force inhibit state regulatory power.

Tests: 1) If a state statute discriminates facially (intentionally) against interstate commerce, it is virtually per se invalid (strictist scrutiny).

2) If a state regulation does not discriminate intentionally against interstate commerce, it is given greater deference by the Court.

State Statute discriminates facially (intentionally). Regulation does not discriminate intentionally.




Any federal court at any level may abstain or refuse to hear a particular case (temporarily) where there are undecided issues of state law presented.


New York v United States

RE: Commerce Clause


Under the 10th Amendment, Congress exceeded its constitutional power when it enacted a key portion of a law aimed at forcing states to dispose of low-level radioactive waste generated within their borders because it directed a state to regulate in a manner dictated by the federal government.

a. The Federal government may not compel the States to enforce or administer a federal regulatory program.


Taxing Power


Revenue raising v. regulatory in nature (key issue)

a) If Congress has power to regulate activity then tax valid even if for regulatory purpose only
b) If Congress has no power to regulate, then tax must be revenue raising (dominent intent)

Arguable issue: 10th amendment will limit Congress if it is disguising a tax to ursurp powers reserved to the states.


Spending Power


Article I, §8 - Congress has the power to spend money in order to pay the debts and provide for common defnse and general welfare of the U.S.

Beware of a Equal Protection crossover if classification involved (discrimination)


Treaty Power


Gives the President the right to make treaties with the consent of two-thirds of the Senate


Powers Over Aliens/Naturalization/Citizenship


Congress may regulate immigration and may specify the status and conditions for entry and deportation of aliens

If alien legally in U.S. Due Process rights attach


Bill of Attainder


A legislative act directed against a class of designated persons, pronouncing guilt without a trial or conviction

(Legislation should not play the role of Judiciary)


Ex Post Facto Law


A criminal law passed after the occurrence of a fact or commission of an act, which retroactively changes the legal consequences or relations of such fact or deed (substantially prejudicial - serves as punishment). States are fobidden from passing any ex post facto law. Doesn’t apply to civil cases.


Dormant Commerce Clause (Factors) (State Statute)


State Interest

  1. Health/Safety/Morals/Welfare
  2. Natural Resources/Environment
  3. Local Concern
  4. Rational/Legitimate interest

Effects On Interstate Commerce - Extent

  1. Discriminatory in nature
  2. Economic considerations - undue burden
  3. National Uniformity (older approach)
  4. Effect on commerce - Balance extent of burden on interstate commerce against state’s interest in regulation
  5. Alternative Means - least restrictive

Dormant Commerce Clause - Alternative Means


Doctrine of Alternative Means: If state has a strong interest which can be accomplished by alternative means with less burden on commerce, the law will be held invalid.




Article VI states that the Constitution and the laws made in pursuance of it are to be the supreme law of the land and superior to any state law or constitutional provision in conflict with them. Thus, if state and federal laws or orders conflict, the federal regulation is superior. This is the principal of preemption; preemption can be either express or implied.

Discuss validity of federal law via proper power source

Preemption may occur by:

1) Express preemption - federal rule or order contains a clause or provision expressly removing power from the states to deal with a particular subject, if so, Supremacy controls.
2) Implied preemption - there is no express language describing preemption and its limits, but the Court must imply preemption from the intentions of congress or the executive based on the nature and characteristics of the federal regulation.

Three types of implied preemption:

a) Conflict preemption - when it’s impossible to comply with both state and federal regulation
b) Field preemption - occurs when federal law or regulation is so pervasive in an area that the comprehensive nature of federal regulation admits of no alternative or supplemental state regulation - even those that do not conflict.

Factors for field preemption: Pervasiveness of federal plan of regulation - degree of overlap; local interest/national interest uniformity (Cooley); Similarity of federal/state interest; Historical classification of subject matter; Dominance of federal interest; Importance of state interest

c) State law must give way to federal regulation when to not do so would impede the achievement of federal objectives.

Effect: If a good argument can be advanced that intent was to preempt field, then the state law is invalid. If intent was that the state could supplement, then the state law must be validated under the Tenth Amendment.

NOTE: Federal rules may set standards (minimum). However, that does not prevent a state from setting higher standards.



Usually on MBEs


A. State Immunity From Federal Taxation

B. State Immunity From Federal Regulation (New York v US - on fed-state regulations, congressional power to regulate states is subject to limitations by federal courts).

C. Federal Immunity From State Regulation - balance state interest against importance of federal operation

D. State Taxation Of Federal Government - Think Commerce Clause. - States cannot tax direct operation of federal government since it would interfere with federal function

E. State Taxation Of Interestate Commerce: Commerce should pay its own way but tax must not discriminate in favor of local interest. “nexus” between state activity and tax. (nondiscriminatory taxes affecting commerce; due process must be satisfied on tax imposed having substantial relationship to benefits and protections afforded by the taxing state (tax nexus); Tax must be fairly apportioned.

F. Privileges & Immunities: Citizens of each state shall be entitled to all P/I of ctizens of several states. Only citizens are protected. P/I Clause does not protect corporations/aliens.

G. Privileges or Immunities: 14th Amendment (national citizenship): No state shall make/enforce any law, which shall abridge the privileges or immunities of citizens of the United States.




Source: 1. Article 1: Powers of Congress

  1. Article 2: Powers of Executive
  2. Article 3: Powers of Judiciary

Purpose: To prevent arbitrary use of power. The major disadvantage of applying doctrine is that it tends to promote inefficiency in government, however, Court appears to relax in times of emergency. Sets up a system of checks and balance.

Limitation: Not absolute

Test: Is one branch usurping virtually all powers reserved to another

Exam Issues:

1) President issues orders beyond power as authorized by Congress
2) Legislature passing Bill of Attainder against executive
3) Legislature making improper appointments
4) President sending troops in undeclared war
5) Supreme Court declares law unconstitutional (Marbury)
6) Privileges of the President (U.S. v Nixon)
7) Constitutionality of internal congressional action (Powell)




Power to hold acts of the other branches of government unconstitutional.

a. Supreme Ct. has power to review acts of Congress, and if they are in violation of the Constitution, declare them void.
b. Court has original and appellate jurisdiction
1) Original and exclusive jurisdiction is given to the Court for all controversies between two or more states (also, all actions for ambassadors, consuls or vice consuls or foreign states are parties)
2) Original but not exclusive jurisdiction is given for the court for:
a. Controversies between US and a state
b. Actions by a state against citizens of another state or aliens




A majority vote is required in the House to invoke impeachment; while two-thirds vote in the Senate is necessary to convict




President cannot issue orders beyond his power or that authorized by Congress. The Court stated that the president had no such inherent power under the Take Care power since that power was limited to enforcement of the law, and did not extend to making the law (which was a legislative function). Since Congress had expressly refused to give the executive similar powers in the 1949 Taft-Hartley Act, there were no laws that President Truman could be enforcing through his Executive Order to the Secretary of Commerce. The Order was thus an exercise of law making and not law enforcing power, and did not belong to the president.

Justice Jackson Opined: 3 categories of situations:

1) Where the president acts in combination with express or implied authority of Congress - here presidential power is greatest;
2) Where the president acts and Congress is silent - here presidential power is a “zone of twilight”;
3) Where the president acts and Congress rejects that authority - here presidential power is at its constitutional weakest


Immigration & Naturalization Service v. CHADHA (1983)


A provision of the Immigration and Nationality Act authorizing either the house of Congress to invalidate a decision of the executive branch (i.e., “legislative veto”), allowing a particular deportable alient to remain in the U.S. violated the principle of separation of powers. More broadly, legislative vetoes generally violate the separation of power.



(5th & 14th AMENDMENTS)


The Due Process Clause of the Fifth Amendment provides that the federal government shall not deprive any person of life, liberty or property without due process of law.

State or federal law judged by test of reasonableness:

a. Look to purpose of statute (police powers for state, federal powers for federal government)
b. Are means rationally related to purpose sought?
c. Legitimate ends?

Modern era: Any rational interest by state will justify economic regulation. Individual economic right is given less protection than individual liberties. Protection of individual liberties extends to enumerated as well as unenumerated rights. (Those implied from Constitution, e.g., right to travel interstate)

State law must be reasonable and fair, not arbitrary and capricious. Balance individual loss of liberty against state interest in enacting legislation.

a. Beware of classification - Equal Protection


Substantive Due Proces - Fundamental Individual Rights


Fundamental Individual Rights: If a government regulation infringes upon a fundamental right, it is subjected to the same strict scrutiny applicable to “fundamental rights” issues under the Equal Protection Clause, i.e., the regulation is invalid unless found to be necessary to a compelling government interest. Look for the least restrictive alternative means available.

Right of privacy approach:

1) Marriage
2) Procreation
3) Contraception
4) Abortion (undue burden test)
5) Right to attend private school, but no general right to education
6) Familial rights
7) Right to travel interstate travel
8) Right to vote
9) Right to mentally ill
10) Right to reject medical treatment

Examples: Include the right to die, right to live, right to refuse unwanted medical treatment

Beware of first amendment cross-over




Roe v Wade - Extended right of privacy to include a woman’s right to abortion. Woman’s right to terminate pregnancy is fundamental and regulated only if compelling state interest

Planned Parenthood of South Penn v Casey - Court said essential holding of ROE reaffirmed. States may not criminalize abortion, but may regulate it as long as the regulation do not unduly burden the decision, as would a spousal notification requirement. The trimester approach is abandoned. States may impose a 24-hour-waiting period and require unmarried girls under 18 to obtain consent of one parent or the permission of a state judge. The decision replaced the trimester approach with a new standard that state abortion regulations should be upheld unless they constitute an “undue burden” on a woman’s abourtion decision.




Source: 5th/14th Amendments: “Protects against the deprivation of life, liberty, or property interests” without due process of law.

Liberty includes more than freedom from physical restraints (e.g., right to contract, to engage in gainful employment, to be free from defamation by government, and the right to develop certain parental interests).

Property includes ownership and entitlements granted by state or federal law (i.e., a legitimate claim to certain benefits such as public education, continued welfare benefits, and, under certain circumstances, public employment).

Deprivation of life, liberty, or property without due process requires more than negligent conduct.


Timing and scope of required hearing: Whether a prior evidentiary hearing is required, and the extent of procedural requirements. (importance of interest, value of specific procedural safeguards to that interest, gov. interest in fiscal & admin efficiency)


Termination of welfare/disability benefits

Termination of public employment

Public Education (suspensions/dismissals)

License suspension

Creditor remedies

Civil forfeiture of real property used in a crime

Attachment of real property




Source: 5th Amendment: “Nor shall property be taken for public use without just compensation”

Issue: Is it a taking or a regulation pursuant to a valid state interest? If taking, compensation required; it regulation, none required.

Requirements for eminent domain:

a. Public use - economic development (police powers)
b. Just Compensation: Fair market value, loss to owner
c. Procedural Due Process: Reasonable notice/hearing for taking and compensation
d. Necessity: If state regulation challenged, it is not reviewable in federal court, but it is in state court

Land Use Regulations:

Land use regulation is not a taking if:

1) Owner not denied economically viable use of land
a. Look to economic impact on claimant
b. Look to extent to which gov. reg interferes w/ distinct investment-backed expectations and character of regulation

Beaware of regulatory taking (First English Evangelical Church) Temp denial of all uses of property is a taking under 5th amend






Zoning is a regulation, not a taking

Source: Tenth Amendment

a. police powers
b. General purpose is to segragate uses and regulate density

Cumulative (higher uses permitted only) v. non-cumulative (restricts to limited use):

Ordinances segregate according to incompatible uses:

1) Residential, 2) Commercial, 3) Industrial

Are Non-Conforming uses permitted?

A use of land that preceded the passage of a zoning ordinance which now prohibits the pre-existing use. a) If a landowner is required to immediately discontinue the pre-existing use that constitutes “a taking” which entitles the landowner to payment of just compensation for the taking by the government.

Amortization to Investment

To avoid “a taking” which would require the paying of just compensation, cities or counties often pass new zoning ordinances which allow for non-conforming uses to continue, at the option of the landowner, for a prescribed period of time after the effective date of the zoning ordinance. Such provisions are called amortization clauses.

Comprehensive plan v spot zoning

Comprehensive: A general plan, which is interanally consistent

Spot Zoning: An amendment not in accordance with the comprehensive plan. Look to arbitrary rezoning (single lot).


Substantial hardship required:

Hardship must be due to unique circumstances not self-created

No reasonable use may exist

Issuance of variance must not result in harm to the neighborhood

Types: Bulk: Minor variance (frontage); Use: Permits use not permitted by ordinance



Constitutional Attacks


Procedural Due Process (notice/opportunity to be heard)

Substantive Due Process (purpose/means/ends)

Equal Protection (discrimination)

  1. Land Use Restrictions judged by the rational basis
  2. Racial discrimination must be intentional as mere disproportionate impact is insufficient

Fifth Amendment (taking without just compensation v. regulation)

  1. Does the ordinance depreciate the value of an established property right?
  2. Physcial/Regulatory taking?
  3. Requirements for eminent domain
    a. Public Use
    b. Just Compensation
    c. Procedural Due Process
    d. Necessity

Inverse condemnation: The ordinance is so oppressive in its regulation of the use of the subject land such as to make the ordinance a form of taking which entitles the plaintiff to payment of damages for the taking


PENN CENTRAL TRANS. CO. v. New York City (1978)


Owner brought suit on application forbidding exterior alterations of landmarks was a taking. Court stated that in regulatory takings, an ad hoc factual inquiry to balance competing interests was required. On the one hand, the Court will have to assess the constitutional protections for private property embodied within the takings clause; while on the other hand; the Court will assess the government’s needs for regulation of land use. Specifically the court stated that, in addition to the character of the regulation, “the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has intereferred with distinct investment backed expectations are, of course, relevant considerations.”




Constitution forbids states frm making laws interfering obligations of contracts. Must balance state interest against private interest.

U.S. Trust Co. v New Jersey (1977): Revitalized the contract clause. A state cannot refuse to meet its own obligations to private investors simply because it would prefer to spend money for public good. Test: Strict Scrutiny: State law impairing state obligations must be reasonable and necessary to serve an important public purpose in order to pass under the contract clause.




a. IRAC Equal Protection

b. Discuss State Action (gov. conduct or private)

c. Discrimination Intentional/Unintentional?

d. Classify Discrimination - Apply Appropriate Tests

1. Non-Suspect/Non-Fundamental (economic/social legislation): Rational Basis

Is gov. law/reg. rationally related (means) to a legitimate or permissible gov. objective (ends)? Burden: On Individual Challenging the law

2. Quasi-Suspect: Intermediate Scrutiny

Gov. law/reg. must be substantially related (means) to an important gov. objective (ends)? Burden: Arguably on governement

  1. Suspect/Fundamental rights: Strict Scrutiny

Suspect classification/burden on fundamental right must be necessary (means) to promote a compelling state interest (ends) when there is no less burdensome, alternative means to accomplish the state interest? Burden: On Government




A. IRAC Equal Protection

  1. Government Regulation:
    a. State Statute: Fourteenth Amendment
    b. Federal Statute: Fifth Amendment (Due Process not Equal Protection)
  2. Arbitrary Classification
  3. Individuals similary situated must be treated the same

EQUAL PROTECTION - State Action Tests


B. State Action:

Tests: a. Public Function Test: Look to performance of a state function, i.e., where a private person engages in activities or functions traditionally associated with sovereign governments and which are almost exclusively governmental operations.

(Conducting elections is an exclusive state function. Racial discrimination by groups w/ effective control over selection of candidates is state action. - Streets in a company town were treated like public, even though privately owned. - ->No State Action - Public utility case, held no state action as utility service not exclusive public function.

b. Judicial Enforcement: Court enforced private racial restrictive covenant. Held state action **Limited to facts**
c. Significant state involvement (nexus test). Look for significant state participation in private entity - acts between the state and the private actor are sufficiently connected that the state can be said to be involved or encouraged the private activity. (Nexus found between state-owned parking facility and private restaraunt, which discriminated against African Americans (symbiotic relationship).


EQUAL PROTECTION - Constitutional power source against: private action

  1. Look for a federal statute on exam - Is it Constitutional?
  2. Power source involved: 13th, 14th, and 15th Amendments
  3. Enabling Clause: Empowers Congress to enforce 13th, 14th, 15th by appropriate legislation - even private discriminatory action.


13th Amendment



Congress may legislate against all forms of slavery.

Enabling Clause serves as an absolute bar to slavery and involuntary servitude, i.e., no state action required



  • Enabling Clause (EC) used to strike down conspiracy to interfere with civil rights; (free speech, assembly, association, travel.) Griffin v Breckenridge
  • EC used to prohibit racial discrimination in housing. Jones v. A.H. Mayer Co.
  • EC Enabling clause struck down private schools’ discrimination against African-Americans. Runyon v McCray
  • The Court has not decided whether a racially “discriminatory purpose” is required for a violation of the 13th Amendment’s bar against imposing “a badge or incident of slavery” on African-Americans. Memphis v. Greene (1981)
  • §1985(3) did not provide a federal cause of action against defendants who obstructed access to abortion clinics. Defendants’ opposition to abortion was not “class-based invidiously discriminatory animus” because it did not focus on woman “by reason of their sex.” Bray v Alexandria Woman’s Health Clinic (1993)


14th Amendment


Enabling Clause prevents states from denying due process and equal protection.

Congress may enact laws only to prevent or remedy violations of rights recognized by the Court. Such laws must be narrowly tailered to preventing or remedying constitutional violations; in Court’s words, the laws must be “proportional” and “congruent” to the problems.

State workers may sue their employers in federal court under the Family Medical Leave Act because Congress validly abrogated the states’ 11th Amendment to such suits in passing (NV Dept. of Human Resources v Hibbs (2003)

Title II of the ADA prevents any public entity from discriminating against disabled persons in the provision of public services, programs or activities. Congress has the power under §5 of the 14th Amendment to enforce constitutional rights such as the due process right to judicial services. Historically, there has been pervasive unequal treatment against disabled people seeking services in state buildings. Given the extensive nature of such discrimination, it was well within congress’ prophylactic powers to enact Title II. (Tennessee v. Lane (2004))



15th Amendment


Congress may prohibit racial discrimination in voting.

General requirement of state action.

  • Prohibited literacy tests for voting. Congress may use rational means necessary to prohibit racial discrimination in voting. (S.C. v. Katzenbach)
  • Congress may prohibit voting regulations that have only a disproportionate racial impact in areas with a demonstrable history of racial discrimination in voting, since Congress could rationally find that they create the risk of purposeful discrimination. (City of Rome v. U.S. (1980))
  • Hawaii constitutional provision limiting voting for state Office of Hawaiian Affairs to descendants of native Hawaiians violated the 15th Amendment’s requirement that states not deny or abridge voting based on ancestry. (Rice v. Cayetano (2000))


Discrimination Intentional/Unintentional


Generally applies to race/national origin and gender classification.

Question: Which standard applies?

De Jure: (by law)

a. purpose was to discriminate
d. State must justify through strict scrutiny for race and national origin and intermediate scrutiny for gender.

De Facto (facially neutral) Washington v. Davis

a. Racially neutral by its terms-discriminatory in effect
b. State may justify through rational basis
c. Mere disproportionate impact not sufficient to show intentional discrimination
d. If legislative mtive was to intentionally discriminate against minorities the de jure (strict scrutiny)



Classify Discrimination



Non-Suspect/Non-Fundamental (economic/social legislation): Rational Basis

Test: Is government law/regulation rationally related to a legitimate or permissible government objective?

Burden: On individual challenging the law

Non-Suspect: age, wealth, handicap, elderly, non residents, non-fundamental rights - Rational basis, too bad, you loose.

Non-Fundamental: Education, Welfare



Quasi-Suspect: Intermediate Scrutiny


Test: Governmental law/regulation must be substantially related to an important governmental objective?

Burden: Arguably on government

a. Quasi suspect: illegitimacy, gender, illegal aliens
1) Illegitimacy:

A) Arguments pro suspect:

(1) Child has not control over birth
(2) Why should child be punished?

B) Arguments against suspect:

(1) Little damage to child
(2) Not as patent as race
2) Gender (rational basis (unintentional))
3) Illegal Aliens - permant residence in U.S. are entitled to equal protection of the laws, and discriminatory regs will apparently be judged by the intermediate scrutiny.
- Texas law requiring paternity suit to identify natural father of illegitimate child for the purpose of obtaining support invalid. Special burden placed on illegitimate child (1 yr time limit) not justified by state’s interest in avoiding prosecution of fraudulent claims (no relationship to legitimate state interest) (Mills v Habluetzel (1982))
- Illegitimate children under 18 may seek support payment from fathers who have abandoned them. PA statute had violated Clark’s constitutional right to “equal protection of the laws” because it treated her differently from a legitimate child. Legitimate children may seek child support from any time until age 18, while illegitimate children like Clark were barred from seeking such support after age 6.” (Clark v Jeter (1988))
- Defacto discrimination that does not intentionally discriminate by has a sexually disproportionate effect judged by rational basis test (Personal Admin of MA v. Feeney (1979)
- State can’t reuire illegal aliens of school age to pay a fee (not paid by citizens and legal aliens) for public education. (Plyler v. Doe)



Suspect/Fundamental rights: Strict Scrutiny


Test: Suspect classification/burden on fundamental rights must be necessary to promote a compelling state interest when there is no less burdensome, alternative means to accomplish the state interest?

Burden: On Government

Factors to to determine suspect classification:

1) Can characteristic used for classification be changed - immutable?
2) Has there been past past history of unfair discrimination as to class - discrete/insular minority?

Suspect classification: race, alienage, and national origin

Race: (Brown v Board of Ed) Halted de jure (by law) discrimination

Reverse discrimination: Affirmative action programs classified and treated like any other de jure raceial discrimination

-Strict scrutiny applies where race is the predominant factor in redistricting (Shaw v Reno I (1995))

National Origin: Treated exactly like race

Alienage: General Rule: Suspect Classification

Lawyers allowed, police officers not allowed, school teachers not allowed. CA requirement that probation officers must be citizens.

Illegal aliens, not subject to strict scrutiny, intermediate

Factors to determine fundamental right:

1) Guaranteed by constitution?
2) Is it important enough that it should be implied?
3) Is right desirable but negative implications?
4) Is it so important that any law infringing upon it, should be difficult to uphold?

Fundamental Rights: voting, travel interstate, first amendment rights, marriage, and privacy



Fundamental Rights


Fundamental Rights: voting, travel interstate, first amendment rights, marriage, and privacy

Voting: Beware of private discrimination in voting - 15th Amendment

Apportionment Cases, Right to be a Candidate (pg. 60)

Travel - Fundamental, despite not expressly mentioned in Constitution

First Amendment -

Marriage - Laws interfering with right to marry judged by compelling state interest. Laws, which do not significantly interfere, judged by rational basis test.

Irrebuttable Presumption (Right to a Hearing)/Procedural Due Process):

Examples: Parental Custody, Residency Status, Pregnancy & employee fitness, Food Stamps, Disability Benefits for illegitimate children


First Amendment

Freedom of Speech/Association


1st amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the 14th amendment.

Freedom of Speech/Association

Content-Neutral Regulation

a. Symbolic Conduct
b. Legislative Inquiries


a. Specific place which remain open to public
b. Public v. Non-Public forum
c. Fighting Words
d. Hostile Audience
e. Commercial Speech
f. Obscenity
g. Defamation


a. Loyalty Oaths
b. Administration of Justice
c. Labor picketing
d. Prior Restraint
e. Overbreadth
f. Vagueness
g. Right not to speak


First Amendment

Freedom of Press


Judicial System

a. Grand Juries

b. Access to criminal trials

c. Confidential Sources

d. Access to government information


First Amendment

Freedom of Religion

  1. Establishment clause: Gov. will neither aid nor formally establish religion as Constitution requires a wall of separation between church/state.
  2. Free Exercise clause: Gov. shall make no law, which prohibits free exercise of religion