Constitutional Law

Question 1

What can Congress regulate within interstate commerce?

Answer 1

1. Channels and instrumentalities
2. Persons and things
3. Anything that has a “substantial effect” on interstate commerce (anything economic or noneconomic that “substantially affects” interstate commerce, even if it is purely “intrastate”)

Question 2

Does Congress have the power to make states enforce federal laws?

Answer 2

No.

Congress cannot “commandeer” states.

Question 3

How can Congress enforce federal laws in individual states?

Answer 3

1. Regulate it directly (if within commerce power)
2. Regulate indirectly by threatening to take away funding if the state does not adopt a law (under Congress’s spending power)

Question 4

Define: Dormant Commerce Clause

Answer 4

States lack the power to discriminate against interstate commerce or unreasonably burden it.

Question 5

Is a state law that discriminates against interstate commerce ever valid?

Answer 5

Yes, but it is usually unconstitutional.

The state law is valid if it can show that the law:

1. Was necessary to serve a compelling state interest; and
2. There is no reasonable nondiscriminatory alternative (strict scrutiny)

Question 6

What is the constitutionality of a state law that burdens interstate commerce but is nondiscriminatory on its face?

Answer 6

The law is likely to be constitutional if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.

Question 7

Define: Market-Participant Doctrine

Answer 7

The Market-Participant Doctrine (i.e., the state is acting as a market participant or business rather than a regulator) is an exception to the Dormant Commerce Clause. If the state is acting as a market participant, it is allowed to favor its own residents.

Question 8

What constitutional amendments grant Congress the power to enforce constitutional rights?

Answer 8

Enforcement Powers:

• Thirteenth Amendment
• Fourteenth Amendment
• Fifteenth Amendment

Question 9

True or False: State action is required to sue under the First, Fourteenth, or Fifteenth Amendment

Answer 9

True.

If a plaintiff is suing under the First, Fourteenth, or Fifteenth Amendment (for free speech, due process, Equal Protection Clause issues, or voting rights) the plaintiff needs to find a government actor or action “fairly attributable to the government.”

Question 10

When is state action present?

Answer 10

1. When a state passes a law;
2. When a state permits its officials to take action;
3. When a private actor is performing a traditional and exclusive; government function (e.g., conducting elections, or running a company town–this is pretty narrow); OR
4. When private action is closely controlled by the state

Question 11

What standards are relevant to the Equal Protection Clause?

Answer 11

1. Strict Scrutiny
2. Intermediate Scrutiny
3. Rational Basis

Question 12

Define: Strict Scrutiny

Answer 12

The government must prove that the law is narrowly tailored (necessary) to achieve a compelling interest.

Government usually loses.

Question 13

What rights are evaluated under strict scrutiny?

Answer 13

1. Fundamental rights
2. Racial or ethnic discrimination
3. Alienage (when the classification is made by the state, with exceptions)

Question 14

Define: Intermediate Scrutiny

Answer 14

The government must prove the classification is substantially related to an important government interest.

Question 15

What rights are evaluated using intermediate scrutiny?

Answer 15

• Gender
• Illegitimacy

Question 16

Rational Basis

Answer 16

The plaintiff must prove that the law is not rationally related to a legitimate government interest.

Plaintiff usually loses.

Question 17

What rights are evaluated under rational basis?

Answer 17

• Poverty
• Wealth
• Age
• Education
• All remaining classifications

Question 18

Introductory Sentence: Freedom of Speech

Answer 18

The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.

Question 19

What categories of speech are evaluated under strict scrutiny?

Answer 19

• Content-based discrimination: forbidding communication about certain ideas
• Viewpoint-based discrimination: forbidding communication about a certain viewpoint.

Question 20

Define: Symbolic Speech

Answer 20

A law which regulates conduct and places an incidental burden on speech is constitutional if the regulation is narrowly tailored to an important governmental interest and is unrelated to the suppression of speech.

Question 21

What types of speech are not constitutionally protected?

Answer 21

1. Speech inciting immediate lawless or violent behavior (“clear and present danger”): speech that is directed at inciting and likely to incite imminent lawlessness
2. Fighting words: Words likely to incite an immediate violent reaction
3. True Threats or Words as Conduct: Defamation, harassment, and other forms of “words as conduct”
4. Obscene speech

Question 22

What makes speech obscene?

Answer 22

1. Appeals to a prurient interest in sex
2. Depicts or describes sexual conduct in a patently offensive way
3. Lacks serious literary, artistic, political, or scientific value

Question 23

Define: Central Hudson Test

Answer 23

The Central Hudson test is used to evaluate restrictions on commercial speech.

1. The speech must be lawful and not misleading;
2. The statute must serve a substantial governmental interest;
3. The statute must directly advance that interest; AND
4. The statute must be narrowly tailored

Question 24

Can the government restrict speech in a public forum?

Answer 24

Yes, to an extent.

The restrictions must be:

1. Content neutral;
2. Narrowly tailored to serve an important governmental interest; AND
3. Leave open alternative channels of communication

Question 25

What types of restrictions are allowed in nonpublic forums?

Answer 25

Restrictions that are:

1. Viewpoint neutral; AND
2. Reasonably related to a legitimate governmental interest

Question 26

True or False: Students are not protected by the First Amendment in public schools

Answer 26

False.

BUT, speech in schools may be regulated so long as the regulations are reasonably related to legitimate pedagogical concerns

Question 27

True or False: The government has the power to acquire property without compensation

Answer 27

False.

Neither the federal government nor the state may take private property for public use without just compensation.

This arises from the Fifth Amendment and is applied to the states through the Fourteenth Amendment.

Question 28

Define: Physical Taking

Answer 28

A physical taking occurs when there is a permanent physical occupation regardless of what public interests it may serve.

Question 29

Define: Regulatory Taking

Answer 29

A regulatory taking is when a government regulation deprives an owner of all economically beneficial use of her property or destroys all reasonably investment-backed expectations.

Question 30

Define: Exaction

Answer 30

An exaction is a type of regulatory taking that exists when the government enacts a regulation that restricts the owner’s use of a property as a condition to allowing the owner to develop the land.

Considered a taking unless the government can show a legitimate government interest and a “rough proportionality” (i.e., the adverse impact of the proposed development is roughly proportional to the loss suffered by the property owner.

Question 31

What is the main function of the Eleventh Amendment?

Answer 31

The Eleventh Amendment precludes a federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from the state.

There are exceptions to this (e.g., if a federal statute properly abrogates immunity).