Constitutional Law Flashcards
State Action
Can bring suit re violation of IR only if violation committed by state actor. Private actors can violate IR.
EXCEPTION - 13th Amendment: racial discrimination. Can bring suit v. private actor
EXCEPT- private actor becomes state actor when (1) performs traditional & exclusive G role or (2) G is significantly involved in private actor’s activities (i.e., mutually beneficial relationship, G creates nexus by affirmatively facilitating or authorizing private action, G pervasively intertwined in private entity’s management or control)
15th Amendment
racial discrimination related to voting
Privileges & Immunities
Residency. State A passed a law that discriminates v. State B residents based on residency status
Equal Protection Clause
Affects a group of people.
Three Standards:
o Strict Scrutiny – Race, Alienage, National Origin. (1) G has burden; (2) law is necessary to achieve;
(3) a compelling interest
(Citizenship-> F Law = rational basis; S law = Strict scrutiny or political-function exception aka direct participation in formulation/execution/review of broad public policy or exercise of broad discretion [jury, G employment like popo or public school teacher, voting])
o Intermediate Scrutiny – Gender, Illegitimacy (illegitimate kids). (1) G has burden; (2) law is substantially related; (3) to an important governmental interest
o Rational Basis – Everyone else. (1) P has burden; (2) law is not rationally related; (3) to any legitimate interest
Procedural Due Process
No person shall be deprived of life, liberty, or property w/o DP. (1) Notice (2) Hearing.
Property Rights/Interests –
Jobs, licenses, benefits, public education
Extends to rights and privileges
Test - (1) Weighing private interest affected by deprivation + (2) risk of erroneous deprivation & value of safeguards; (3) G’s interest (admin & fiscal burdens)
If one is stronger, then insufficient process. If 3 is stronger, then sufficient process.
Substantive Due Process
Affects everyone.
Fundamental Rights–> Strict Scrutiny
(1) Right to interstate travel (≠ intrastate);
(2) Right to vote;
(3) Right to privacy (CMPER) - Contraception, Marriage, Procreation, private Edu, Raise your family; (4) Right to free speech
Abortion = no longer a FR under right to privacy. Left to states to regulate.
Non-Fundamental Rights–>Rational Basis (e.g., retroactive civil laws)
5th Amendment
Federal G or Congress passes law/takes action affecting EPC or DP
14th Amendment
State passes law/takes action affecting EPC or DP
Taking
G can take private property for public use (e.g., highway) if they pay just compensation [FMV].
Taking = physical or doing something to economically reduce/eliminate value of property down to nothing.
Exaction occurs when a local G conditions the issuance of a building or development permit on a landowner’s promise to dedicate part of the property for public use. Exaction = a taking unless the G shows (1) substantially advances a legitimate G interest and (2) individualized & quantifiable findings show that impact on community is proportional to impact on landowner
Establishment Clause (FoR)
G cannot make law which establishes a religion. Separation of church & state. Lemon test
(1) statute must have a secular purpose;
(2) statute cannot advance or inhibit a religion;
(3) statute is not excessively entangled to a religion.
Excessively Entangled – money/grants/scholarships/accreditation. Giving $$ to a private religious school doesn’t automatically violate establishment clause if statute lists a secular reason.
Endorsement Test (displays) - government displays of religious symbols violate the establishment clause when the overall context of the display would cause a reasonable person to conclude that the display endorses religion
Free Exercise Clause (FoR)
Every citizen has the right to freely exercise religion any way they choose (except: breaking law. e.g., killing lamb, peyote). G cannot take a position or make comment about religion = neutral.
direct –> strict scrutiny
Incidental effect – rational basis. if statute’s purpose is unrelated to religion but effect interferes with ability to practice religion = statute is constitutional. E.g., bball team + no metal jewelry + Jewish kids’ yamakas
Freedom of Speech
Cannot ban speech. Can regulate speech.
Content-Based Regulation – G says blanket no (e.g., march, parade, speaking, ads) Strict Scrutiny
Content-Neutral Regulation – G allows message to get out but regulates time, place, and manner (how, where, when) [e.g., zoning ordinances for adult-entertainment businesses] –> narrowly tailored to serve a substantial G interest & leaves open alt measures of communication
Public Forum – streets, parks. narrowly tailored to serve a substantial G interest & leaves open alt measures of communication
Designated (limited) public forum - public property opened for specific types of expression (classrooms, civic auditoriums)–> if used for designated purpose (strict scrutiny). If used for unintended purpose (rational basis)
Non-Public Forum – ads on busses & billboards. Reasonably related to a legitimate interest
Unprotected Forms of Speech
Obscenity – (1) Objective person applying local community standards finds work appeals to the prurient interest in sex; (2) work in question depicts sex in a patently offensive manner; (3) work lacks any serious literary, artistic, political, or scientific value
Fighting Words – Harsh language that is likely to incite the average person to commit violence
Threats of Violence - intended to intimidate recipient (regardless of whether speaker acts on threat or intents to carry it out)
Defamation
Commercial Speech – commercials/ads. Can be regulated if a (1) reasonable fit to (2) a substantial governmental interest + (3) it’s narrowly tailored.
False, Misleading, or Illegal Advertising
Prior Restraint – Trying to stop/ban speech before ever published (gag orders, restraining orders)
Unfettered Discretion – G cannot choose 1 form of speech over another (allows poli ads, but not x ads).
Vague Statute – Statute cannot be overbroad (e.g., “any form/kind of this”), must list specific speech
Mail - (1) containing unprotected speech or (2) false/misleading/unlawful commercial speech
Unconstitutional Laws
Bill of Attainder – State/Fed law that punishes a named individual or group of people civilly/criminally without a trial
Ex Post Facto – State/Fed law that retroactively makes something criminal that was legal when you did it
Contracts Clause – State [not feds] law that impairs a contractual obligation (your ability to enter a contractual relationship)
Supreme Court Jurisdiction
Article 3.
How Case Gets to SC – (1) Original Jx (C cannot enlarge or restrict OG jx) & (2) Appellate Jx (Congress may regulate scope of appellate jx)
SC v. Federal Lower Courts – SC: Congress cannot tell SC what to do. Fed Lower Courts: Congress has jx over FLC. Can create new courts and control subject matter they listen to.
Prevents a Case from Going to Federal Court
Mootness – if a case is over/has been resolved (“no case/controversy”) [except: class action]
Ripeness –nothing has occurred/not ready (“no case/controversy”) (e.g., cannot sue statute if hasn’t been passed)
Standing – Present or imminent injury at stake. Has to be something for person to lose (generally economic). Not future/distant harm.
Independent & Adequate State Ground – If a case has been decided by a state SC correctly based on independent & adequate state ground it will not go to federal court bc no federal issue to be resolved
Justiciability
Political Question.
Fed courts will not hear cases re Pres or Congress
Federal Immunity
(1) states cannot sue fed govt;
(2) states cannot tax fed govt (except: can tax private businesses working for fed govt and can tax employees);
(3) individuals cannot sue fed govt (except: when fed govt consents via statute)
State Immunity
(1) fed govt & other states may sue an individual state;
(2) fed govt cannot tax a state if the tax is applicable to a govt activity or function (except: can tax private businesses, e.g., gift shop in govt building)
