Glossary of Consitutional Law
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- WHERE DOES THE FEDERAL JUDICIAL POWER COME FROM?
- The federal judicial power derives from Article III of the Constitution. Federal Courts shall have judicial power over all cases and controversies
arising under the Constitution, laws and treaties of the U.S.,
admiralty and maritime, and
disputes between states, states and foreign citizens, and citizens of diverse citizenship.
- Justiciability requires a case or controversy with:
a specific harm or threat of specific future harm (ripeness),
the matter must not be moot, and
the claimant must have standing.
- To have standing the plaintiff must show:
that he or she has been injured or is in imminent danger of being injured,
that the defendant caused the injury, and
that a favorable court decision can likely remedy the injury.
- A diminution of enjoyment in the performance of an activity constitutes an adequate “injury” for standing purposes.
- THIRD PARTY STANDING
- A plaintiff cannot assert the claims of others who are not before the court unless:
there is a close relationship between the plaintiff and the injured party,
if the injured party is unlikely to be able to assert his or her own rights*,
it is an organization with associational standing.
- ASSOCIATIONAL STANDING
- An organization may sue for its members if:
the members would have standing to sue,
the interests are germane (connected) to the organization’s purpose,
neither the claim nor the relief requires the participation of individual members.
- GENERALIZED GRIEVANCES
- The plaintiff must NOT be suing as a citizen or a taxpayer interested in having the government follow the law unless they are challenging government expenditures as violating the Establishment Clause.
- DECLARATORY JUDGMENT AND PRE ENFORCMENT REVIEW
- If a person requests declaratory judgment, pre-enforcement review will be granted only if:
the hardship suffered will be great without pre-enforcement review,
and the fitness of the issues and record are sufficient for the federal court to review.
- A federal court will not hear a case unless the plaintiff has been harmed or there is an immediate threat of harm.
A plaintiff generally is not entitled to review of a state law before it is enforced.
- WHEN MAY A FEDERAL COURT HEAR A MOOT CASE?
- The Court, in its discretion, may hear a moot case if:
the wrong is capable of being repeated,
the defendant voluntarily ceased but could begin again at any time,
or the claim comes from a class actions suit with ongoing injury.
- If the events after the filing of a lawsuit end the plaintiff’s injury, the case should be dismissed as moot.
- POLITICAL QUESTION
- The federal courts will not adjudicate cases involving political questions.
Examples - challenges to the president’s conduct of foreign policy, challenges to the impeachment and removal process, challenges to partisan gerrymandering.
- SUPREME COURT REVIEW
- The Supreme Court has original jurisdiction in cases affecting Ambassadors, other public ministers and consuls, and those in which a state shall be a party.
It has appellate authority in all other Cases mentioned.
- SUPREME COURT ORIGINAL AND EXCLUSIVE JURISDICTION
- The Supreme Court has original and exclusive jurisdiction for suits between state governments.
The 11th Amendment bars suits against states in federal court. Sovereign immunity bars suits in state courts or federal agencies.
- Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, or a U.S. Court of Appeals, or of a 3-judge federal district court.
- ADEQUATE AND INDEPENDENT STATE GROUNDS
- The Supreme Court will hear a case from a state court only if the judgment turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and independent state grounds to support the state decision.
- STATES SUED IN LOWER FEDERAL COURTS
- States may be sued in lower federal courts if:
the state explicitly waives,
it is authorized under federal laws,
the federal government is the party suing the state,
the suit is against state officers.
- The doctrine of abstention requires that a United States federal court refuse to hear a case, when hearing the case would potentially intrude upon the powers of the state courts.
- FEDERAL LEGISLATIVE POWER
- For Congress to act there must be express or implied Congressional Power. There is no general congressional police power.
- NECESSARY AND PROPER CLAUSE
- Congress may make all laws that are necessary and proper to carry out their authority so long as they are not prohibited by the Constitution.
- TAXING AND SPENDING
- Congress may tax and spend for the general welfare.
This means that any tax to raise funds and any apportionment for the general public is legitimate.
- COMMERCE CLAUSE
- Congress has plenary power to regulate commerce.
It may regulate the channels of interstate commerce,
the instrumentalities of interstate commerce, and
activities that have a substantial effect on interstate commerce.
- 10TH AMENDMENT LIMITS
- The 10th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
- Congress cannot compel state action.
It may induce state action by placing express conditions relating to the purpose of a spending program.
- EXECUTIVE DELEGATION
- Congress may not delegate executive power to itself or its officers.
- Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate.
- HIERARCHY OF LAWS
- Treaties prevail over conflicting state laws.
If a treaty conflicts with a federal statute the one adopted last-in-time controls.
If a treaty conflicts with the Constitution, it is invalid.
- EXECUTIVE AGREEMENTS
- Are agreements made between the president of the United States and a foreign country.
It is effective when signed by the President and the head of the foreign nation.
Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
- COMMANDER IN CHIEF
- The President has broad powers as Commander-in-Chief to use American troops in foreign countries.
- DOMESTIC AFFAIRS
- The President appoints ambassadors, federal judges, and officers of the United States and may fire any executive branch officer so long as removal is not limited by statute.
- CONGRESSIONAL APPROVAL ON PRESIDENTIAL APPOINTMENTS
- Congress must confirm presidential appointments and may limit removal if it is an office where independence from the president is desirable and where there is good cause.
It may not prohibit removal.
- SUPREMACY CLAUSE
- the Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.
- A valid federal statute or regulation may expressly preclude any state or local regulation.
Even if the state or local regulation is nonconflicting.
- EXPRESS PREEMPTION
- Federal law preempts state law if a federal statute expressly and explicitly says the federal law is exclusive.
- IMPLIED PREEMPTION
- Federal law preempts state law if:
the federal and state laws are mutually exclusive,
a state law impedes the achievement of a federal objective, or
if Congress evidences a clear intent to preempt state law.
- INTERGOVERNMENTAL IMMUNITY
- States may not tax or regulate federal government activity.
- DORMANT COMMERCE CLAUSE
- State and local laws are unconstitutional if they place an excessive burden on interstate commerce.
- PRIVILEGES AND IMMUNITIES CLAUSE
- No state may deny citizens of other states the privileges and immunities it applies to its own citizens. Only used as an anti-discrimination clause.
- 14TH AMENDMENT
- Always a wrong answer unless it is about the right to travel.
- DISTINGUISH DORMANT COMMERCE CLAUSE FROM PRIVILEGES AND IMMUNITIES
Does not require discrimination against out-of-staters in order to apply. Requires a burden on interstate commerce
Corporations and aliens can sue
P& I Clause
Requires discrimination against out-of-staters with regard to civil liberties or important economic activities
Corporations and aliens cannot sue
- STATE TAXATION OF INTERSTATE COMMERCE
- States may not use their tax systems to help in-state businesses.
A state may only tax activities if there is a substantial nexus to the state.
State taxation of interstate businesses must be fairly apportioned
- FULL FAITH AND CREDIT
- Courts in one state must give full faith and credit to judgments of courts in another state
so long as:
The court that rendered the judgment had jurisdiction over the parties and the subject matter.
The judgment was on merits.
The judgment is final.
- STATE ACTION
- The Constitution applies only to government action.
Private conduct need not comply with the Constitution.
Congress by statute may apply constitutional norms to private conduct.
- CONGRESSIONAL REGULATION OF PRIVATE BEHAVIOR
- The Thirteenth Amendment can be used to prohibit private race discrimination.
The commerce power can be used to apply constitutional norms to private conduct.
- PUBLIC FUNCTION EXCEPTION
- The Constitution applies if a private entity is performing a task traditionally exclusively done by the government.
The private conduct must comply with the Constitution.
- ENTANGLEMENT EXCEPTION
- The Constitution applies if the government authorizes, encourages, or facilitates unconstitutional activity.
- RESTRICTIVE COVENANTS
- Courts cannot enforce racially restrictive covenants.
- THE BILL OF RIGHTS
- The Bill of Rights applies directly only to the federal government. It is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment.
Except: The Second Amendment right to bear arms. The Third Amendment right to not have soldiers quartered in a persons home. The Fifth Amendment right to grand jury indictment in criminal cases. The Seventh Amendment right to jury trial in civil cases. The Eighth Amendment right against excessive fines.
- LEVELS OF SCRUTINY
- The claimant must prove that the law is not: rationally related to a legitimate government purpose.
The government must prove that the law is: substantially related to an important government purpose
The government must prove that the law is: necessary to achieve a compelling government purpose.
- FREE SPEECH
- The First Amendment protects the freedom of speech.
Whenever the government seeks to regulate speech the Court will weigh the importance of these rights against the interests or policies sought to be served by the regulation.
The freedom of speech includes not only the right to speak, but also the right to refrain from speaking or endorsing beliefs with which one does not agree.
- TIME, PLACE, AND MANNER REGULATIONS
- When a nonpublic forum is involved the government can regulate the time, place and manner of speech
so long as the regulation is
viewpoint neutral and
reasonably related to a legitimate government purpose.
- CONTENT-BASED VS CONTENT NEUTRAL
- Regulations seeking to forbid communication of specific ideas are content-based restrictions and must meet strict scrutiny.
It is presumptively unconstitutional.
Content-neutral regulations need only meet intermediate scrutiny.
- VAGUENESS AND OVERBROAD
- A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.
A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.
- Government must show that the material or speech:
appeals to the prurient interest
is patently offensive under
taken as a whole, the material lacks serious redeeming artistic, literary, political or scientific value.
The government may not punish private possession of obscene materials.
- CHILD PORNOGRAPHY
- Child pornography may be completely banned even if it is not obscene. The government may punish for private possession of child pornography.
- FREE EXERCISE CLAUSE
- Congress shall make no law prohibiting the free exercise of religion.
The Free Exercise Clause prohibits the government from punishing, denying benefits to, or imposing burdens on someone based on the person's religious beliefs.
- NEUTRAL LAW OF GENERAL APPLICABILITY
- The Free Exercise Clause cannot be used to challenge a law of general applicability unless it can be shown the law was motivated by a desire to interfere with religion.
- THE ESTABLISHMENT CLAUSE
- Congress shall make no law regarding the establishment of religion.
For a law to be constitutional there must be:
a secular purpose
the primary effect must be neither to advance or inhibit religion and
there must not be excessive entanglement with religion.
- RELIGION IN SCHOOL
- Government sponsored religious activity in public schools is unconstitutional.
Religious student and community groups must have the same access to school facilities as non-religious groups.
The government may give assistance to parochial schools, so long as it is not used for religious instruction.
The government may provide parents with vouchers which they may use in parochial schools.
- PROCEDURAL DUE PROCESS
- The Due Process Clause of the 5th and 14th Amendments provides that the federal or a state government shall not take a person’s life, liberty, or property without due process of law.
- DUE PROCESS CLAIM REQUIREMENTS
- To successfully argue a procedural due process violation the claimant must show:
a loss of a significant freedom provided by the Constitution or a statute (deprived of liberty);
an entitlement that was not fulfilled (deprived of property)
and that there was:
intentional government action or reckless disregard
- PRIVATE INFLICTION OF HARM
- Generally, the government's failure to protect people from privately inflicted harms does not deny due process.
- is a reasonable expectation in a continued receipt of a benefit.
- DUE PROCESS BALANCING TEST
- If a person is entitled to procedural due process then the court must balance:
the importance of the interest to the individual with
the ability of additional procedures to increase the accuracy of the best finding and;
the government’s interests in administrative efficiency.
- TERMINATION OF WELFARE BENEFITS
- require pre-termination notice and hearing.
- TERMINATION OF SOCIAL SECURITY
- A post-term hearing is sufficient when Social Security benefits are terminated.
- SCHOOL EXPULSION
- A student must have notice and opportunity to defend and explain before he is expelled or suspended from school. He can be suspended if circumstances warrant.
- CHILD CUSTODY
- Change of custody rights require notice and hearing.
- WHEN PUNITIVE DAMAGES ARE TO BE AWARDED
- instructions must be given to the jury and judicial review is available to insure reasonableness.
- U.S. CITIZEN BEING DETAINED
- A U.S. citizen being detained indefinitely as an unlawful combatant must have the ability to challenge their detention before an impartial judge.
- PREJUDGMENT ATTACHMENT AND GOVERNMENT SEIZURE
- Prejudgment attachment and government seizure of assets must be proceeded by notice and hearing except when exigent circumstances exist.
- PROPERTY INVOLVED IN A CRIME
- Due Process safeguards are not required, even for innocent owners, if the government can show "probable cause" to believe that the property was involved in a crime.
Even an innocent owner can lose valuable real estate.
- SUBSTANTIVE DUE PROCESS
- "Substantive" rights are those fundamental rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary.
Where a law limits a fundamental right, strict scrutiny will be applied.
- FUNDAMENTAL RIGHTS
- freedom of speech
freedom of religion
freedom of association
the right to travel
the right to privacy
the right to vote
- ECONOMIC RIGHTS
- The Constitution provides only minimal protection for economic liberties.
Only a rational basis test is used for laws affecting economic rights.
- TAKINGS CLAUSE
- the government may take private property for public use if it pays just compensation.
- THERE IS A TAKING IF
- the government confiscates or physically occupies property.
the government regulates an activity so that it leaves no economically viable use of the property.
- PUBLIC USE
- the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.
- JUST COMPENSATION
- requires the state to pay just compensation for any private property taken for the use or benefit of the public.
- CONTRACTS CLAUSE
- No state shall impair the obligations of contracts.
The contracts clause only applies to state or local interference with existing contracts.
State or local interference with government contracts must meet strict scrutiny.
- STANDING TO APPEAL CRIMINAL MATTERS
- Every person has standing to challenge a law under which he or she is being prosecuted by the state.
- States may not prohibit abortions but may regulate them so long as they do not create an undue burden on the ability to obtain one.
- GOVERNMENT DUTY TO SUBSIDIZE ABORTIONS
- The government has no duty
to subsidize abortions or
to provide them in public hospitals.
- CONSENT AND NOTIFICATION LAWS
- Spousal consent and notification laws are unconstitutional.
A state may require parental notice and consent for an unmarried minor’s abortion so long as it creates a judicial alternative.
The judge must find that it would be in the minor’s best interests or that she is mature enough to decide for herself.
- is the act of making untrue statements about another which damages his/her reputation.
If a comment brings a person into contempt, disrepute or ridicule, it is likely to be defamatory.
Anything that injures a person's reputation can be defamatory.
- PUBLIC FIGURES AND MALICIOUS INTENT
- Public figures, including officeholders and candidates, have to show that the defamation was made with malicious intent and was not just fair comment.
- PER SE LIBEL AND PER SE SLANDER
- An accusation that someone has committed a crime, has a feared disease or is unable to perform one's occupation is called libel per se or slander per se.
These claims can more easily lead to large money awards in court and even punitive damage recovery by the person harmed.
- EQUAL PROTECTION
- The principle is stated in the 14th Amendment to the Constitution: "No State shall…deny to any person within its jurisdiction the equal protection of the laws."
The right of all persons to have the same access to the law and courts and to be treated equally by the law and courts, both in procedures and in the substance of the law.
- AFFIRMATIVE ACTION
- Numerical racial set-asides require clear proof of past discrimination.
Educational institutions may use race as one factor in admissions decisions to help minorities.
Seniority systems may not be disrupted for affirmative action.
- GENDER CLASSIFICATIONS
- Gender classifications benefiting women that are based on role stereotypes will not be allowed.
Those designed to remedy past discrimination and differences in opportunity will be allowed.
- BASTARD CHILDREN LAWS
- Laws that deny benefits to all non-marital children, but grant it to all marital children are unconstitutional.
- RIGHT TO TRAVEL AND EQUAL PROTECTION
- The right to travel is a fundamental right protected under equal protection.
Laws that prevent people from moving into a state or apply durational residency requirements must meet strict scrutiny.
- TWO WAYS TO DETERMINE THE EXISTENCE OF CLASSIFICATIONS
- the classification is on the face of the law;
or facially neutral but has a discriminatory intent and a discriminatory impact.
- SUSPECT CLASSES
- QUASI SUSPECT CLASSES
Undocumented alien children
- NOT SUSPECT CLASSES
- JUSTICIABLE CASE OR CONTROVERSY
- WHAT KIND OF CONSTITUTIONAL QUESTION
- Scope of Federal Powers
Separation of Powers
State Interference Individual Rights
- WHAT IS AN UNDUE BURDEN?
- a 24 hour waiting period for abortions in not an undue burden
requiring a licensed physician is not an undue burden
the prohibition of “partial birth abortions” is an impermissible undue burden.
After viability (capable of living outside the uterus), state may prohibit abortions unless necessary to protect the woman’s life or health.
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