Constitutional Law

Question 1

Topics to Consider for Every Constitutional Question

Answer 1

1) Standing
2) State action
3) Ripeness
4) Mootness
5) Supremacy

Question 2

Standing

Answer 2

A party has standing only if they can show a concrete stake in the outcome of the controversy.

A plaintiff will be able to show a sufficient stake in the controversy only if they can show an injury in fact, caused by the defendant, that can be remedied by a decision in their favor.

Question 3

Organizational Standing

Answer 3

An organization can show standing to assert a claim on behalf of its members if:
1) the organization exists to advance the interests of its members;
2) the members have standing; and
3) the claim does not require the presence of all of the members.

Question 4

State Action

Answer 4

The US Constitution generally prohibits government infringement of constitutional rights. Litigants must show the action is attributable to the State, including private individuals who:
1) are performing exclusive public functions; and
2) have significant state involvement in their activities.

Question 5

Ripeness

Answer 5

A federal court will not hear a case before it has fully developed. To do so would be premature and any potential injury speculative.

(E.g., look for the problem where a new law infringes a right, but the plaintiff has not yet engaged in the prohibited action, so has not yet suffered an injury. Think about zoning - the plaintiff bought land, paid an architect, but the property was re-zoned. Until they go to build, the case isn’t ripe).

Question 6

Mootness

Answer 6

A case where the dispute has ended or was resolved before review is considered moot. However, such a case can be heard when the wrong can be repeated - i.e., the defendant voluntarily ceased but can restart the offending practice.

Question 7

Supremacy Clause

Answer 7

If federal law preempts state law, state law will be invalid under the Supremacy Clause. A federal law impliedly preempts a statute if:
1) federal and state laws are mutually exclusive (following one law means you are not following the other);
2) state law impedes the objectives of federal law; or
3) Congress evidences a clear intent to preempt the field (e.g., Congress wants to dictate disposing of radioactive material).

Question 8

1st Amendment

Answer 8

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speec, or of the press; or of the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Question 9

2nd Amendment

Answer 9

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

(D.C. v. Heller further protects firearms for those not in a militia, and for any lawful purpose, such as self-defense in a person’s home).

Question 10

3rd Amendment

Answer 10

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

(Not controversial/incorporated/litigated in front of SCOTUS)

Question 11

4th Amendment

Answer 11

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Question 12

5th Amendment

Answer 12

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Only applies to protect individuals from self-incrimination. Does not apply to corporations or the compelled production of documents.

Includes the Double Jeopardy Clause, Due Process Clause, Takings Clause, and Right to a Grand Jury. Also includes an implied equal protection provision).

Question 13

6th Amendment

Answer 13

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

(Includes a lot of crim pro rules - public trial, speedy trial, right to an attorney, right to an impartial jury, and the confrontation clause).

Question 14

7th Amendment

Answer 14

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

(Federal, Civil Claim right to a jury - n/a to states hearing state law claims).

Question 15

8th Amendment

Answer 15

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

(Typically at play in death penalty cases for minors, but also excessive fines and bail - new regulations for each in CA, which also cover forfeiture, a big issue with drug raid seizure of property. CA’s 3 Strikes Rule was unsuccessfully challenged using the 8A as the basis).

Question 16

9th Amendment

Answer 16

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

(A modern date “catch-all,” basically stating that the Bill of Rights does not contain the entirety of all rights granted to citizens).

Question 17

10th Amendment

Answer 17

All powers not granted to the federal government, nor prohibited by it to the states, are reserved to the states.

Question 18

11th Amendment

Answer 18

A state is not subject to suit in federal courts by a private party without the consent of the state. Suits against states by other states or by the federal government are allowed. Suits against counties and municipalities are allowed, as are suits for injunctive relief and against State Officers who must pay claims out of their own pocket.

Question 19

13th Amendment

Answer 19

Prohibits all slavery, as well as all badges an dincidents of slavery, as well as involuntary servitude within the US.

(E.g., look to the 13A when evaluating a specific performance analysis for a service contract, i.e., granting specific performance would require servitude).

Question 20

14th Amendment

Answer 20

Due Process Clause (incorporates the 5th amendment’s Due Process Clause)

Equal Protection Clause

Citizenship Clause (anyone born or naturalized in the US is a citizen of the US, unless an American Indian - but that changed under the Indian Citizenship Act of 1924)

Question 21

15th Amendment

Answer 21

Prohibits states and the federal government from denying any citizen the right to vote on account of race or color, or previous condition of servitude.

Question 22

Declaratory Judgment

Answer 22

A ruling that states the legal effect of a regulation or conduct of parties is permitted.

Advisory opinions are not permitted - these violate standing requirements.

Question 23

Due Process (2 amendments & 2 types)

Answer 23

5th Amendment: guarantees that no person shall be deprived of “life, liberty, or propert, without due process of law” by the FEDERAL government.

14th Amendment: gurantees that no STATE shall “deprive any person of life, liberty, or property, without due process of law.”

Substantive due process: invovles the government interfering with fundamental rights.

Procedural due process: concerned with Notice and Hearing.

Question 24

Substantive Due Process (and level of scrutiny)

Answer 24

Where a law limits the liberty of all persons to engage in some activity, it is a substantive due process issue.

If a fundamental right is involved, strict scrutiny applies, otherwise, rational basis.

Question 25

Fundamental Rights Test

Answer 25

Infringement of a fundamental right must satisfy strict scrutiny. Fundamental rights include interstate travel, voting, the right to privacy (marry, procreate, use contraceptives, raise one’s children, keep family together, custody, and the right to refuse medical treatment).

Question 26

Strict Scrutiny

Answer 26

The government must show the classification is the least restrictive means necessary to serve a compelling government interest.

Applicable when:
1) classification is based on a suspect class (race, national origin, or alienage in some instances); or
2) when the law infringes on a fundamental right for a class of people (i.e., vote, exercise of religion, have access to the courts, and interstate travel).

Question 27

Non-Fundamental Rights Test

Answer 27

Infringement of a non-fundamental right must satisfy the rational basis test.

Question 28

Rational Basis

Answer 28

Plaintiff (not the government) must show the classification is not rationally related to a legitimate government interest.

Question 29

Intermediate Scrutiny

Answer 29

When a classification is based on a quasi-suspect class (e.g., gender, non-marital children), the government must show that the classification is substantially related to an impotant government interest.

Question 30

Procedural Due Process

Answer 30

(14A for the States, 5A fo the fed gov)

Guarantees that no person shall be denied life, liberty, or property without due process of the law.

Normally, due process requires (1) notice and (2) hearing.

Question 31

Matthews Factors

Answer 31

Use to determine if the amount of process was sufficient:

(1) what is the importance of the interest to the individual;
(2) the value of safeguards to that interest; and
(3) what are the government interests.E

Question 32

Equal Protection

Answer 32

The EP Clause of the 14A (States) and 5A (fed gov) ensures citizens equal protection under the laws.

Equal protection issues arise when the government treats similarly situated individuals differently based on classifications among individuals.

Question 33

Equal Protection Categories

Answer 33

Suspect: race, alienage, or national origin (STRICT SCRUTINY)

Quasi-suspect: gender and illegitimacy (INTERMEDIATE SCRUTINY)

All else: including age, wealth, disability, education (RATIONAL BASIS)

Question 34

Discriminatory Class

Answer 34

To determine if a discriminatory class exists, it must be shown that either:
(1) the law is discriminatory on its face;
(2) it is facially neutral but applied in a discriminatory manner; or
(3) there was a discriminatory motive for the law.

Question 35

Equal Protection Analysis Steps

Answer 35

(1) evaluate discriminatory class,
(2) apply the appropriate level of scrutiny based on the right infringed upon,
(3) then analyze level of review for each right.

Question 36

Privilege and Immunity Clause

Answer 36

The PIC prevents a State from treating citizens of other States in a discriminatory manner. It only protects non-residents of the State when the discrimination concerns fundamental rights, i.e., rights relating to important commercial activities or civil liberties.

The clause only applies if the discrimination is intentionally protectionist in nature and is not applicable to aliens or corporations.

Question 37

Takings

Answer 37

The 5A as applied to the States via the 14A prohibits the government from taking private property for public use without just compensation for any reasonable benefit.

Just compensation is measured by the FMV of the property at the time of the taking (relocation/moving costs are not included).

Question 38

Possessory Taking

Answer 38

Occurs when the government (1) actually appropriates; (2) destroys or permanently physically occupies the property; or (3) government permanently deprives the owner of all economic value, requiring land be left substantially in its natural state. Mere zoning restrictions do not constitute total takings unless they deny the owner all economic benefit of the property.

Question 39

Regulatory Taking

Answer 39

Occurs when the government rezones property and destroys all economic viability. A balancing between private and public interests will determine if such a taking occurs by utilizing the Penn Central factors.

Question 40

Penn Central Factors

Answer 40

Unviability is determined by evaluating:
(1) the character of the regulation (degree of benefit to society and burden to the owner);
(2) the economic impact on the landowner; and
(3) the extent of interference with investment-backed expectations.

Question 41

Takings Analysis

Answer 41

Begin with analysis of standing,state action, and the 5A Takings Clause.

Next, proceed through the constitutionality of the question: due process, and the appropriate standard of review.

For a zoning variance, go through rational basis review.

Question 42

Zoning

Answer 42

States may enact statutes to control land use under the 10A.

Question 43

Commerce Clause

Answer 43

Congress has the power to regulate interstate commerce if it is discriminatory or unduly burdensome.

If a state law discriminates against out-of-state competition, it is invalid unless:
(1) the law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives;
(2) the state is a market participant; or
(3) the government action involved is typically performance of a traditional government function.

Question 44

Delegation of Legislative Powers

Answer 44

Congress may delegate some legislative authority to the executive branch as long as Congress specifies an intelligible principle to guide the delegate.

Question 45

Establishment Clause

Answer 45

The government is prohibited from establishing or endorsing/supporting religion. Laws that discriminate against a religion must satisfy strict scrutiny (gov. must show the law is narrowly tailored to achieve a compelling gov interest and the least restrictive means are employed).

Question 46

Free Exercise Clause

Answer 46

Congress shall make no law abridging the free exercise of religion. Laws designed to interfere with religion must meet strict scrutiny. Laws of general applicability that cause unintentional burdens on religion are constitutional. (General applicability, such as smoking Peyote for religious reasons - no dice, it’s a law, smoking Peyote is still illegal).

Question 47

Determining Establishment/Free Exercise

Answer 47

As the Lemon Test was abandoned in Kennedy v. Bremerton School District, the new rule is a bit more abstract: The Free Exercise and Free Speech Clauses of the 1A protect an individual engaging in a personal religious observance from gov reprisal; the Constitution neither mandates nor permits the gov to suppress such religious expression.

Question 48

Free Speech

Answer 48

The government is limited in how it may regulate speech. Regulation of speech must not be:
(1) a prior restraint;
(2) overbroad;
(3) vague; or
(4) determined by unfettered discretion.

Question 49

Prior Restraint

Answer 49

A prior restraint on free speech restricts speech before it occurs. Prior restrains are presumed unconstitutional except when:
(1) a particular harm can be avoided; and
(2) there are narrowly drawn, reasonable standards.

Question 50

Overbroad

Answer 50

A law is overbroad when it prohibits more speech than necessary, e.g..

Question 51

Vague

Answer 51

A law will be held vague if it gives no reasonable notice as to what speech is prohibited, e.g.

Question 52

Unfettered Discretion

Answer 52

A regulation must provide defined standards as to how to apply the law to prevent regulating officials from having unfettered discretion in their application of the law.

Question 53

Content Based Restrictions

Answer 53

Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny (narrowly tailored to achieve a compelling gov interest and by the least restrictive means).

Question 54

Content Neutral Restrictions

Answer 54

The gov may regulate the time, place, and manner of content neutral speech. Apply intermediate scrutiny (gov must show that the regulation is narrowly tailored to achieve a significant gov interest and leaves open alternative channels of communication.

Question 55

Time, Place, and Manner

Answer 55

The government’s ability to regulate time, place, and manner of speech varies with the forum in which the speech takes place.

Question 56

Public Forum

Answer 56

An area that has traditionally been held open to the public where free speech is permitted (think public sidewalks). Government regulation of speech that is content-based must meet strict scrutiny, or if content-neutral, intermediate scrutiny.

Question 57

Designated Public Forum

Answer 57

A designated public forum is one which is not historically open for public speech but can be opened at the government’s discretion.

(Think public library meeting room, where you need to reserve the space during business hours).

The same scrutiny requirements for a Public Forum apply.

Question 58

Non-Public / Limited-Public Forums

Answer 58

The gov can limit free speech in non-public forums (think courtrooms) or limited-public forums (think about a meeting room at city hall) as long as the regulation is viewpoint neutral and reasonable.

Question 59

Incitement of Illegal Activity Exception

Answer 59

A state cannot forbid advocating the use of force or of law violation unless it is directed at producing or inciting imminent lawless action and is likely to incite such action.

Further, “fighting words” that are “true thoughts” are not protected when they are statements communicating intent to place an individual in fear of bodily harm.

Question 60

Content Regulation of Speech Exceptions

Answer 60

The government may limit language that incites illegal activity, obscenity, commercial speech, and defamation.

Question 61

Obscenity

Answer 61

Obscenity is not protected speech, but a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards
(1) appeals to the prurient interest of sex;
(2) portrays sex in a patently offensive way; and
(3) does not have serious literary, artistic, political, or scientific value using a national, reasonable person standard.

Question 62

Commercial Speech Exception

Answer 62

False advertising is not protected speech. Commercial speech in general is protected speech, however, may be restricted if the gov passes legislation that:
(1) is not misleading or fraudulent;
(2) serves a substantial gov interest; and
(3) is narrowly tailored to serve the substantial interest which is looked at by determining if there’s a reasonable fit between the legislation’s end and the means chosen.

Question 63

Freedom of Association

Answer 63

The gov may not prohibit or punish group membership unless the law meets strict scrutiny.

Question 64

Taxing and Spending Clause

Answer 64

Congress has the power to tax and spend for the general welfare, and to condition states’ receipt of federal funds so long as the condition is related to the purpose which the funds are granted, and not unduly coercive.

Congress’ spending power is plenary and proper so long as the spending serves the general welfare and is not prohibited by the Constitution.

Question 65

Contracts Clause

Answer 65

The Contracts Clause limits states from enacting or repealing legislation that eliminates the State’s pre-existing contractual burden. Any retroactive impairment of contract rights is thereby prohibited.

Question 66

Abortion

Answer 66

The Constitution does not confer a right to abortion. The authority to regulate abortion belongs to the legislature of the several states. (Dobbs, 2022, superseding Roe v. Wade).

Question 67

Congressional Appointments

Answer 67

Congress shall not form executive agencies and appoint Congressmen or their staff to serve in those agencies. If appointments have administrative/enforcement powers, the President appoints the selectees who may require advice and consent of the Senate.

Question 68

Congress Authority

Answer 68

Congress can restrict SCOTUS appellate jx, but not original jx, which is established in the US Constitution.

Question 69

One Person, One Vote

Answer 69

Theory applies to most elections; however government can limit the class of persons who are allowed to vote if the class of voters are the only persons affected by that vote. (Think property owners with a law that only relates to their shared interest).

Question 70

Article III Judges

Answer 70

These judges have life tenure and cannot be subject to a reduction in salary.

If appointed by Congress in a tribunal, they are an Art. I judge and have no such protections.

Question 71

State Action Against the Federal Government

Answer 71

A state may not sue the fed gov without consent, absent some other exception, such as a federal officer acting outside of scope.

Question 72

Oaths

Answer 72

Requiring administration of an oath of office may be upheld if they require persons to uphold the constitutional process.