Constitutional Law Flashcards Preview

Bar Prep > Constitutional Law > Flashcards

Flashcards in Constitutional Law Deck (78):


A case will not be heard if there is not yet a live controversy or immediate threat of harm.



If the matter has already been resolved the case will be dismissed as moot.


Individual Standing (Components)

1. Injury
2. Causation
3. Redressability


Standing of Organizations

An organization has standing if
1. the members have standing in their own right
2. the interests asserted are related to the organization's purpose, and
3. the case does not require participation of individual members


Political Questions

(supreme court will not hear)
These are issues
1. Constitutionally committed to another branch of government or
2. inherently incapable of judicial resolution.


Eleventh Amendment

Prohibits federal courts from hearing a private party's or foreign government's claims against a state government.


Necessary and Proper Clause

Congress has the power to make all laws necessary and proper for executing any of their enumerated powers.


The Taxing and Spending Clause

Gives Congress the right to tax and spend for the general welfare of the US.


Commerce Power

Congress has the exclusive power to regulate all foreign and interstate commerce.


War and Related Powers

The constitution gives congress power to declare war, raise and support armies, and provide for and maintain a navy.


Property Power

Congress has the power to dispose of and make rules for territories and other properties of the United States.


Power over Citizenship

Congress may establish uniform rules of naturalization. This gives Congress plenary power over aliens.


Treaty Power

The president has the power to enter into treaties with the consent of two-thirds of the Senate.


Executive Agreements

Signed by the President and the head of a foreign country. They can be used for any purpose that treaties can be use for. They do not require the consent of the Senate.


Executive Privilege

The President has a privilege to keep certain communications secret.


Executive Immunity

The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office.


Article 4- Privileges and Immunities Clause

prevents a state or city from discriminating against non citizens regarding rights fundamental to national unity.



A majority vote in the House is necessary to invoke the charges of impeachment, and a two thirds vote in the Senate is necessary to convict and remove from office.


Thirteenth Amendment

Prohibits Slavery and involuntary servitude


Fourteenth Amendment

Prevents states from depriving any person of life, liberty, or property without due process and equal protection of law.


Fifteenth Amendment

Prevents both the federal and state governments from denying a citizen the right to vote on account of race or color.


Contracts Clause

Prohibits STATES from enacting any law that retroactively impairs contract rights.


Ex Post Facto Law

A law that retroactively alters criminal offenses or punishments in a substantially prejudicial manner for the purpose of punishing the person for some past activity.


Bills of Attainder

legislative acts that inflict punishment on individuals without a judicial trial.


Procedural Due Process

Notice and a hearing are required for a government agency to individually take a person's life, liberty or property.


Taking Clause

Private Property may not be take for public use without just compensation. (applicable to the states via the fourteenth amendment)


Strict Scrutiny

Law is upheld if it is NECESSARY to achieve a COMPELLING government purpose. Burden of proof is on govt.


Intermediate Scrutiny

Law is upheld if it is SUBSTANTIALLY related to an IMPORTANT government purpose. Burden of proof is on govt.


Rational Basis

Law is upheld if it is RATIONALLY RELATED to a LEGITIMATE government purpose. Burden of proof is on petitioner.


Suspect Classifications

Race, National Origin or Alienage.


Quasi-Suspect Classifications

Legitimacy and Gender


Privacy Rights

1. Marriage
2. Use of contraceptives
3. Abortion
4. Obscene Reading Material
5. Keeping Extended Family Together
6. Right to parent
7. Intimate Sexual Conduct


One Person, One Vote Principle

Applies whenever any level of government, state or local, decides to select representatives to a governmental body by popular election from individual districts.


Prior Restraint

Judicial order or administrative system that stops speech before it occurs


Vagueness (Con Law)

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.


Obscenity test for speech

Speech is considered obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person:
1. appeals to purient interest in sex;
2. is patently offensive; and
3. Lacks serious literacy, artistic, political or scientific value.


Overbreadth (Con Law)

A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.


Designated Public Forums

government properties that are not traditionally open to the public, but are opened up to the public at large for a specific purpose.


Public Forums

government properties that the government is constitutionally required to make available for speech (e.g., sidewalks & parks)


Limited Public Forums

government properties that are limited to certain groups or dedicated to the discussion of only some subjects


Non-Public Forums

Government properties that the government constitutionally can and does close to speech.


Freedom of Association (level of review)

Laws that prohibit group membership must meet strict scrutiny


Free Exercise Clause

Bars any law that prohibits or seriously burdens the free exercise of religion


Establishment Clause

prohibits laws respecting the establishment of religion. The government can't endorse or favor specific religious groups.


Establishment Clause Test (Lemon Test)

Law is constitutional if:
1. has a secular purpose
2. the law has a primary secular effect , which neither inhibits or advances religion
3. Does not foster excessive entanglement with religion


State Action

For an action to violate the Constitution, there must be government involvement with the challenged action.


Third party Standing

Requires plaintiff to prove he has:
1. individual standing
2. a special relationship between the plaintiff and the third party or
3. that is difficult for the third party to assert his own right


Tenth Amendment

Provides that the powers not delegated to the federal government or prohibited by the constitution are reserved to the states.


Supremacy Clause

The constitution is the supreme law of the land. Any state law that directly conflicts with federal law, impedes the objective of the federal laws, or regulates an area traditionally occupied by congress, will be preempted by federal law.


Dormant Commerce Clause

Restricts the states and local government from regulating activity that affects interstate commerce if the regulation is (1) discriminatory or (2) unduly burdensome.


Market Participant

When the state is not acting as a regulator, but rather owns or operates a business, it may favor local interests over non local interests.


Content Based Speech Regulations

Those that forbid the communicative impact of the expression (Strict Scrutiny)


Unprotected Categories of Speech

Obscenity, fraudulent misrepresentation and defamation, advocacy of imminent lawless action, and fighting words


Imminent Lawless Action

The government can ban speech advocating imminent lawless action if it is intended to incite or produce imminent lawless action and is likely to produce such action.


Fighting Words

Words that are likely to cause the listener to commit an act of violence. (anger is not enough)


Content Neutral Speech Regulations

Those where the regulation is aimed at something other than the communicative impact of the expression. (intermediate review)


Substantive Due Process

Limits the government ability to regulate certain areas of human life, such as the substantive interest in life, liberty or property.


Equal Protection Clause

Prohibits the government from treating similarly situated persons differently.


Fundamental Rights under Substantive Due Process

Under SDP this applies to rights relating to marriage, living with one's family, child bearing and child rearing.


"Per Se" Takings

Regulatory actions are "per se" takings if there is a:
1. permanent physical invasion, or
2. denial of all economically beneficial use of property.


Exception to Mootness Finding

1. the controversy is capable of repetition yet evading review or
2. voluntary cessation of the activity by the defendant.


Presidential Veto Power

the president has the power to veto a bill passed by congress in its entirety by sending it back to Congress unsigned with a message stating the reasons for rejection


Discriminatory Test for Dormant Commerce Clause

A regulation that is facially discriminatory against out of towners will only be permitted if it is necessary to achieve an important noneconomic governmental interest such that there are no reasonable nondiscriminatory alternatives.


Undue Burden Test for Dormant Commerce Clause

A regulation that unduly burdens interstate commerce will be permitted if it is rationally related to a legitimate government interest, and the burden imposed on interstate commerce must be outweighed by the benefits to the state.


Freedom of Religion

A first amendment limitation on Congress's actions and applicable to the states through the fourteenth amendment


2 clauses of Freedom of Religion

1. Free Exercise Clause
2. The Establishment Clause


Sect Preference

if the government action contains a sect preference, strict scrutiny applies and the action must be narrowly tailored to achieve a compelling government interest.


Freedom of Speech

The first amendment protects an individual's right to free speech and is applicable to the states through the fourteenth amendment.


Standard of Review for Time, Place and manner restrictions

Analyzed based on the type of forum in which the speech or conduct occurs


Symbolic Speech

the freedom not to speak or the freedom to communicate an idea by use of a symbol or communicative conduct.


Symbolic Speech Test

the govt. may restrict symbolic speech if the regulation is:
1. within the constitutional power of the government to enact,
2. Furthers an important governmental interest unrelated to the suppression of speech (content neutral) and
3. prohibits no more speech than necessary.


unfettered discretion

a regulation, licensing scheme, or permit regulation is unconstitutional if it leaves unfettered discretion to the decision maker.


Freedom of Association

First amendment case law recognizes an individual's right to freely associate with other individuals in groups.


Level of Review for Suspect Classifications

Strict Scrutiny


level of Review for Quasi Suspect Classifications

Immediate Scrutiny


Level of Review for Non-Suspect Classifications

Rational Basis


Public Use (Takings Clause)

satisfied if the state's use of the property is rationally related to conceivable public purpose and can include public benefit rather than an actual public usage.


Just Compensation (Takings Clause)

measured by the market value of the property at the time of the taking.