Constitutional Law Flashcards
(22 cards)
Commerce Power
Rule: Congress may regulate commerce with
1. Foreign Nations
2. Indian tribes
3. Among states
Limitations:
-Cannot regulate non economic activity in area traditionally regulated by states
-cannot compel participation in commerce
Taxing and spending powers
Congress may tax and spend to provide for general welfare
Includes any public purpose not prohibited by constitution
Note: 1. Strings must relate to purpose of spending
2. Strings does not equal unduly coercive
Necessary and proper clause
Not a basis for legislative power (cannot legislate solely on this clause)
Allows congress to choose any rational means to carry out an enumerated power, as long as not prohibited by constitution
Takings clause
(5th amendment clause)
Fed govt and (14th amend. DP) states cannot take private property unless: 1. For public use 2. And just compensation
Equal protect. Clause
State/local govt treating people differently (14th amend.)
Note: if federal govt is treating people differently => no equal protection clause violation => 5th amend. DP violation
Has EP component
standard to apply for free exercise clause
Discriminatory laws:
1. Not neutral on its face
OR
2. Not generally applicable -> targeted at religion generally /in particular
Strict scrutiny standard apply
-Neutral laws of general applicability: not subject to free exercise
Procedural due process
Rule: individual has right to fair process when govt acts to deprive of life, liberty, or property.
5th amend DP - Fed govt
14th amend DP - States
Deprivation
To take something away … Intentional or reckless act
Liberty
- Physical freedom
2. Constitutional rights
Property
- Real, personal, tangible, and intangible
2. Govt entitlement to which an individual has reasonable expectation of continued receipt
DP Rights
Notice: reas. Calc. To inform person of dep.
Opp. To be heard: prehearing unless impracticable
Neutral decision maker: no actual or serious risk of bias
substantive due process
FUNDAMENTAL RIGHT IF:
- Deeply rooted in nations history and tradition OR
- Implicit in concept ordered liberty (essential to free society) OR
- Identified as fundamental by reasoned judgement and new insight (think same sex marriage)
Due process issue vs. equal protection issue
DP = denies everyone of fundamental right
DP and EP : deny some of fundamental rights
Test when law restricts fundamental right
Strict scrutiny
Test re: limiting non fundamental right
Rational Bansi’s
Fundamental non-enumerated rights
Marriage/procreation/contraception/custody, care, upbringing of children/living with extended family/interstate travel/voting/abortion
Test for un-enumerated fund. Rights
Strict scrutiny except abortion : undue burden
Abortion
Pre-viability: state may regulate, but not prohibit, abortions to protect woman’s health or life of fetus
Test: cannot create an undue burden -> no substantial obstacle
Post viability : state may prohibit abortion unless to protect - women’s life.
Religion
*traditional religion *belief that play role in life of believer -> look to sincerity of religious beliefs
10th amend
- Powers not delegated to U.S. or prohibited to the states, are reserved to the states or the people
- General police powers -> states
- Anti - commandeering principle: Congress cannot compel states to enact or administer federal programs
14th amendment : enforcement power
- commerce power allows congress to ban private discrim
- 14th A power allows congress to ban state discrimination to enforce the guarantee of equal protection
11th amend
- the states have sovereign immunity
- > they cannot be sued
- > does not include state officers or officials
Exceptions:
- State waivers/ consents
- States can sue each other
- Plaintiff = fed govt
- Bankruptcy
- Congress can abrogate SI when enforcing 14th amend DP
