Constitutional Law - Bar Review

Question 1

Start of constitutional law essays

Answer 1

1) Case or controversy; 2) State action; 3) Standing; 4) Ripeness; 5) Mootness; 6) Supremacy clause (Art. 6); and 7) Sovereign immunity (11a); 8) adequate and independent state grounds; 9) political questions doctrine.

Question 2

Case or controversy

Answer 2

Federal courts do not issue advisory opinions. There must be a live controversy between meaningfully adverse parties for which judicial resolution is possible in which P has a personal stake in the outcome.

Question 3

State action

Answer 3

The US Constitution generally prohibits government infringement of constitutional rights. Litigants must show the action is attributable to the state, including private individuals who are performing exclusive public functions, or have a significant state involvement in their activities (entwinement, coercion, or encouragement).

Question 4

Standing

Answer 4

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: 1) an injury in fact; 2) caused by the defendant; 3) that can be remedied by a decision in their favor.

Question 5

Organizational standing

Answer 5

An organization can show standing to assert a claim on behalf of its members if: 1) individual members have standing; 2) the organization’s purpose is germane to the interests of its members; and 3) neither the claim nor relief requires presence of all the members (money damages).

Question 6

Ripeness

Answer 6

A federal court will not hear a case before it has fully developed, to do so would be premature, and any potential injury would be merely speculative. Consider 1) Probability of harm; 2) hardship if Immediate relief is denied; and 3) Fitness of the record (PIF).

Question 7

Mootness

Answer 7

A case is moot when the dispute has ended or was resolved before review. However, such a case can be heard when the wrong is capable of repetition yet evading review, or the defendant voluntarily ceased but can restart the offending practice.

Question 8

Overbroad

Answer 8

A law prohibiting free speech is overbroad when it prohibits substantially more speech than necessary.

Question 9

Vague

Answer 9

A law will be held vague where it gives no reasonable notice as to what speech is prohibited (sufficiently definite warning).

Question 10

Unfettered discretion (prior restraint)

Answer 10

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. E.g., government administrator who issues permits.

Question 11

Freedom of association

Answer 11

The government may not prohibit or punish group membership unless the law meets strict scrutiny (compelling, unrelated, least restrictive)..

Question 12

Supremacy clause

Answer 12

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; 2) state law impedes the objectives of federal law; or 3) Congress evinces a clear intent to preempt the field.

Question 13

1st Amendment

Answer 13

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

Question 14

2nd Amendment

Answer 14

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. (DC v. Heller protects firearms for those not in the military).

Question 15

3rd Amendment

Answer 15

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

Question 16

4th Amendment

Answer 16

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 17

5th Amendment

Answer 17

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment of indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual services 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 deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Question 18

5th Amendment applicability

Answer 18

The 5th Amendment protects people from self-incrimination. It does not apply to corporations and does not apply to compelled production of documents. It includes the double jeopardy clause, the due process and takings clauses, and the right to grand jury. It also has an implied equal protection provision (e.g., retirement age mandate for military members uses this as authority).

Question 19

6th Amendment

Answer 19

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 provided previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted by the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Question 20

6th Amendment applicability

Answer 20

Includes the right to a public trial, speedy trial, attorney in a criminal case, impartial jury, and the confrontation clause.

Question 21

7th Amendment

Answer 21

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 examined in any court in the United States, than according to the rules of the common law. (Federal civil claims entitled to a jury; not incorporated into the states).

Question 22

8th Amendment

Answer 22

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. (E.g., death penalty for minors, excessive fines and bail – there are new regulations for each in CA, also covering forfeiture (e.g., during drug raids). CA’s Three Strikes rule was sustained over an 8a challenge.)

Question 23

9th Amendment

Answer 23

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. (Essentially is a catch-all, holding that unenumerated rights belong to the people, not the government)

Question 24

10th Amendment

Answer 24

All powers not granted to the federal government, nor prohibited to the states, are reserved to the states. (Lays the foundation for the anti-commandeering doctrine, where the federal government is limited in their ability to influence states to address specific issues or order state officials to enforce federal law).

Question 25

11th Amendment

Answer 25

A state is not subject to suit in federal courts by a private party without the consent of the states. 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 against state officers who must pay claims out of their own pocket.

Question 26

13th Amendment

Answer 26

Prohibits all slavery, as well as badges and incidents of slavery, as well as involuntary servitude within the United States. (e.g., specific performance of a service contract)

Question 27

14th Amendment

Answer 27

The majority of the Bill of Rights is incorporated to the states, including but not limited to the due process clause, equal protection clause, and the citizenship clause (anyone born or naturalized in the US is a citizen of the US, unless an American Indian, which changed under the Indian Citizenship Act of 1924)

Question 28

15th Amendment

Answer 28

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 29

Declaratory judgement

Answer 29

A ruling that states the legal effect of a regulation or conduct of parties is permitted. Advisory opinions are not permitted, as they lack standing.

Question 30

Due process clause, 5a/14a

Answer 30

5a guarantees that "no person shall be deprived of life, liberty, or property, without due process of the law” by the federal government. 14a guarantees that no state shall deprive a person of life, liberty, or property, without due process of law. Substantive pertains to fundamental rights, whereas procedural pertains to notice and hearing.

Question 31

Substantive due process

Answer 31

Where a law limits the liberty of all persons to fairly engage in some activity, there is a potential substantive due process violation. If a fundamental right is involved, strict scrutiny applies, otherwise rational basis review applies. Fundamental IPAD-CAMPERR: Implicit in the concept of ordered liberty, Privacy, Autonomy, Deeply-rooted personal choice, Contraceptives, Abortion (not), Marital relations, Procreation, Education, Relations (familial, custody), Relgion.

Question 32

Fundamental rights test

Answer 32

Infringement of a fundamental right must satisfy strict scrutiny, and include the right to interstate travel, voting, and the right to privacy. Privacy encapsulates the right to marry, procreate, use contraceptives, raise one’s children, keep family together, custody, and the right to refuse medical treatment. IPAD-CAMPERR-VIA: Implicit in the concept of ordered liberty, Privacy, Autonomy, Deeply-rooted personal choice, Contraceptives, Abortion (not), Marital relations, Procreation, Education, Relations (familial, custody), Relgion, Voting, Interstate travel, Access to courts.

Question 33

Non-fundamental rights test

Answer 33

Infringement of a nonfundamental right must satisfy the rational basis standard, where a plaintiff must prove that the law is not rationally related to a legitimate government interest.

Question 34

Strict scrutiny

Answer 34

Applicable when classification is based on a suspect class (race, national origin, or alienage (usually)), or when the law infringes on a fundamental right for a class of people (i.e., vote, exercise of religion, access to courts, interstate travel). The government must prove that the measure is the least restrictive means of achieving a compelling government interest.

Question 35

Intermediate scrutiny

Answer 35

When a classification is based on a quasi-suspect class (gender, illegitimacy), the government must prove that the measure is substantially related to an important government interest.

Question 36

Rational basis review

Answer 36

The plaintiff, not the government, must prove the measure is not rationally related to a legitimate government interest.

Question 37

Procedural due process

Answer 37

14a for the states, 5a for federal, guarantees that no person shall be denied life, liberty, or property without due process of law. Generally requires notice and opportunity to be heard.

Question 38

Mathews factors

Answer 38

To determine if the amount of due process is sufficient, apply the Mathews factors to determine: 1) the risk of erroneous deprivation; 2) individual’s interest in different or additional procedural safeguards; and 3) the government’s interests and costs of such safeguards.

Question 39

Equal protection clause

Answer 39

The equal protection clause of the 5th Amendment, applicable to the states via the 14th Amendment, ensures equal protection under the law. Equal protection issues arise when the government treats similarly-situated people differently based on classifications among individuals. If based on race, religion, or national origin, strict scrutiny applies. If gender or illegitimacy, use intermediate scrutiny. All other categories, including age, wealth, disability, education, etc., are subject to rational basis review, where plaintiff carries the burden of persuasion.

Question 40

Discriminatory class

Answer 40

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

Question 41

Privileges and Immunities Clause

Answer 41

Prevents a state from treating citizens of other states in a discriminatory manner. Protects only nonresidents of the state when the discrimination affects a fundamental right concerning commercial interests that are basic to livelihood. This clause only applies if the discrimination is intentionally protectionist in nature, and is not applicable to aliens or corporations.

Question 42

Takings clause

Answer 42

5a/14a prohibits the government from 1) taking; 2) private property; 3) for public use; 4) without just compensation; and 5) for any reasonable benefit. Just compensation is measured by the fair market value at the time of the taking (relocation/moving costs are not included).

Question 43

Possessory taking

Answer 43

Occurs when the government: 1) actually appropriates; 2) destroys or permanently occupies the property; or 3) permanently deprives the owner of all economic value, requiring land to 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 44

Regulatory taking

Answer 44

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 applying the Penn Central factors. ZIPEIN - Zoning not a taking, Interference (degree), Penn Central, Economic (impact), Investment-backed expectations, Nature and justification.

Question 45

Conditional taking

Answer 45

GEREP - 1) Gov't imposes conditions on use; 2) Exactions (unconstitutional conditions); 3) Reasonable restrictions permitted; 4) Essential nexus between condition and legitimate state interest; and 5) Proportional (conditions to nature and extent of proposed development).

Question 46

Penn Central factors

Answer 46

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

Question 47

Zoning

Answer 47

States may enact statutes to control land use under the 10th Amendment. Points to consider: 1) No impermissible spot zoning; 2) Must amortize nonconforming use; 3) Variance where breach but not harmful to neighbors and otherwise undue burden; 4) Conditional use permit when conforming but uniquely harmful otherwise.

Question 48

Takings analysis

Answer 48

1) Standing, state action; 5a takings 2) Constitutionality of the question (zoning variance is rational basis review).

Question 49

Commerce clause

Answer 49

Congress has the power to regulate commerce with foreign nations, among the several states, and with Indian Nations. This includes the power to regulate channels and instrumentalities of interstate commerce, persons or things in interstate commerce, and economic activities that have a substantial effect on interstate commerce.

Question 50

Commerce clause acronym (ChIJENTIC-CR)

Answer 50

Congress has the power to regulate all foreign and interstate commerce, including the Channels, Instrumentalities, and activities that have a substantial effect on interstate commerce. Substantial effect if: 1) economic in nature; 2) jurisdictional nexus to interstate commerce in the law; 3) Congressional findings explicitly tying activity to interstate commerce; 4) part of a national regulatory scheme; 5) not a tenuous relationship requiring inference upon inference to find connection to interstate commerce; and 6) whether the matter is traditionally of state concern. Can consider the cumulative effects. Congressional findings evaluated for rational connection to interstate commerce, not actual effect.

Question 51

Dormant commerce clause

Answer 51

States cannot regulate interstate commerce if the regulation is discriminatory or unduly burdensome. If state law discriminates against out-of-state competition, it is invalid unless: 1) the law furthers and 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 52

Dormant commerce clause acronym (DOS NUB)

Answer 52

1. states may regulate interestate commerce when not preempted or Discriminatory against Out of Staters; 2. intentional = No alternative; otherwise 3. Undue Burden + not clearly excessive;

Question 53

Delegation of legislative powers

Answer 53

Congress may delegate some legislative authority to the executive branch provided Congress specifies some intelligible principle to guide the delegate.

Question 54

Establishment clause

Answer 54

The government is prohibited from establishing or endorsing/supporting religion. Laws that discriminate against religion must satisfy strict scrutiny.

Question 55

Free exercise clause

Answer 55

Congress shall make no law abridging the free exercise of religion. Laws designed to interfere with religion must meet strict scrutiny.

Question 56

Laws of general applicability

Answer 56

Laws of general applicability that cause unintentional burdens on religion are constitutional.

Question 57

Determining Establishment/free exercise

Answer 57

The Lemon Test was abandoned in Kennedy v. Bremerton School District (2022), the new rule is more abstract: The free exercise and free speech clause of the first amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government’s suppression of such religious expression. In place of the Establishment clause, the Coercion Test, from Kennedy, as listed below may be applicable in place of the old Lemon Test.

Question 58

Coercion Test

Answer 58

Under the 2022 Kennedy decision, the government cannot coerce support or participation in religion against one’s will (e.g., broadcasting prayer during school graduation or a football game in expectation of participation).

Question 59

Free speech

Answer 59

The government is limited in how it may regulate speech. Regulations must not be: 1) A prior restraint; 2) Overbroad; 3) Vague; or 4) Determined by unfettered discretion.

Question 60

Prior restraint

Answer 60

A prior restraint on free speech restricts speech before it occurs. Prior restraints are presumed unconstitutional except when a particular harm can be avoided and there are narrowly-drawn, reasonable standards.

Question 61

Symbolic speech

Answer 61

Non-verbal and non-written forms of communication that are protected under 1a are considered symbolic speech. These communications include burning of a flag, wearing of particular clothes, etc., and are protected unless they cause a legitimate, direct threat to a person, group of people, or public good order and discipline. SUING 1. government show Subtantial interest; 2. Unrelated to suppression of speech; 3. Incidental burden on speech; 4. No Greater than necessary to further interest.

Question 62

Content-based restrictions

Answer 62

Government regulations regarding the content of protected speech (subject matter or viewpoint) must satisfy strict scrutiny, to wit, be narrowly tailored to serve a compelling interest by the least restrictive means. Exceptions: FTB-SCIP-OD-OV 1. Fighting words; 2. True threats 3. Broadcast politics 4. Symbolic speech 5. Commercial speech 6. Imminent lawless action 7. Public forums, schools, employment 8. Obscenity 9. Defamation 10. Overbreadth 11. Vagueness

Question 63

Content-neutral restrictions

Answer 63

The government may regulate the time, place, and manner of content neutral speech. Apply intermediate scrutiny, where the government must show that the regulation is narrowly tailored to achieve a significant government interest that leaves open alternative channels of communications. SUNS-AAA – Significant interest Unrelated to the suppression of speech and Not Substantially greater than necessary, leaving open Ample Alternative Avenues.

Question 64

Time, place, and manner restrictions

Answer 64

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

Question 65

Public forum

Answer 65

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

Question 66

Designated public forum

Answer 66

A forum which is not historically open for public speech but can be opened at the government’s discretion (e.g., public library meeting room, high school auditorium for reservation). The same scrutiny standards as those of a public forum apply here.

Question 67

Non-public / limited public forum

Answer 67

The government can limit free speech in non-public forums (e.g., courtrooms) or limited public forums (e.g., a meeting at city hall) as long as the regulation is viewpoint neutral and reasonable.

Question 68

Incitement of illegal activity exception

Answer 68

A state cannot forbid citizens from advocating for the use of force or violation of the law unless it is directed at producing or inciting imminent lawless action and is likely to produce such action. Further, “fighting words” and “true threats” are not protected when they are statements communicating intent to place an individual in fear of bodily harm.

Question 69

Inciting imminent lawless action

Answer 69

DPIPL 1. Directed at Producing Imminent lawless action; 2. by those Present; 3. Likely to produce such action.

Question 70

Fighting words

Answer 70

SUPIRB 1. words directed towards Specific person; 2. by their very Utterance; 3. likely to incite or Provoke; 4. Persons of common Intelligence; 5. to Retaliate; and 6. cause Breach of peace.

Question 71

True threat

Answer 71

SVP-GNUSI 1. Serious expression of Violence to a Person or Group; 2. Need not intent to carry out 3. speaker must have Subjective Understanding statements will be regarded as threatening 4. idea is to protect people from fear of violence or intimidation.

Question 72

State action against the government

Answer 72

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

Question 73

Content regulation of speech exceptions

Answer 73

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

Question 74

Obscenity

Answer 74

Obscenity is not protected speech. It is a description or depiction of lascivious conduct that, taken as a whole by the average person, applying contemporary community standards: 1) appeals to the prurient interest; 2) portrays sex in a patently offensive way; and 3) does not have Serious Literary, Artistic, Political, or Scientific value, applying a national, reasonable person standard. PPO-SLAPS-PH 1. appeals to Prurient interest as a whole - contemporary community standard; 2. depicts or describes Patently Offensive, sexual conduct as defined by state law; 3. work as a whole lacks Serious Literary, Artistic, Political, or Scientific value. national; 4. not Prudish jury; 5. Home possession protected.

Question 75

Child pornography

Answer 75

POSH: Prohibited even if not Obscene; State law defined; Home posession not protected.

Question 76

Commercial speech exception

Answer 76

False advertising is not protected speech. Commercial speech in general is protected speech, but it may be restricted if the government passes legislation that: 1) is not misleading or fraudulent; 2) serves a substantial government interest; and 3) is narrowly tailored to serve the substantial interest which is advanced by the legislation (means justify the ends). DFUM SIDANG 1. Dominant theme proposes commercial transaction; 2. not False, proposing Unlawful aciton, or Misleading; 3. government must show Substantial Interest; 4. Directly Advances interest; 5. No (Greater) more than necessary (NOT least restrictive); ends justify means.

Question 77

Public school speech

Answer 77

Restrictions permitted if there is a reasonable expectation of a substantial disruption, including LIVO (Lewd, Indecent, Vulgar, Offensive), related to sponsored Pedagogical, Illegal drug use, less authority off Campus.

Question 78

Taxing and spending clause

Answer 78

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

Question 79

Contracts clause

Answer 79

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. E.g., new Presidential administration seeks to cancel the previous administration’s contracts.

Question 80

Abortion

Answer 80

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

Question 81

Congressional appointments

Answer 81

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 82

Congressional authority to modify judicial jurisdiction

Answer 82

Congress can restrict SCOTUS appellate jurisdiction, but not original jurisdiction, which is fixed by Article III of the US Constitution.

Question 83

One person, one vote

Answer 83

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. E.g., property owners with a law that only relates to their shared interest.

Question 84

Article III judges

Answer 84

Have life tenure and cannot be subject to a reduction in salary. If appointed by Congressional tribunal, they are Article I judges and have no such protections.

Question 85

Oaths

Answer 85

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