Glossary of Constitutional Law 2
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- What's the good analogy to remember for cases and controversy?
- Boxing match: every case needs adversary parties and a fight in progress
- Law bans one cookbook a month. Can cookbook author bring suit?
- No. Not yet ripe, unless he's informed it's his.
- How do you tell if a case is moot?
- If a jduge can't change the position of the parties.
- What keeps cases from becoming moot?
- Money damages.
- What is the exception to mootness?
- Capable of repetition yet evading review.
- How do you tell if it meets this standard?
- 1. Limited time duration and
2. could happen again to the individual in the lawsuit.
- When is there federal taxpayer standing?
- Establishment Clause to aid religion.
- What is the exception to this rule?
- Can't challenge federal government transfer of property.
- Can taxpayers challenge state/local establishment of religion?
- Yes. Even if it involves giving away of property.
- Can a taxpayer challenge tax exempt status?
- Who is protected by the 11th Amendment?
- STATES -- not cities or local governments.
- What does the 11th Amendment prevent?
- Suits against states by someone other than federal government or another court IN FEDERAL COURT unless 1. the state expressly consents or 2. Congress has clearly created a federal cause of action against state governments through the power granted to Congress by section 5 of the 14th Amendment.
- What do principles of federalism have to do with all this?
- Principles of federalism prohibit Congress from creating a cause of action against states in STATE COURT for the same as above.
- Does 11th Amendment prevent cases against state officials for money damages?
- No, but money has to come from their pocket.
- Does 11th Amendment or federalism principles prohibit suits against state officials for prospective relief?
- No, even though the state is the real party in interest.
Can get an order going forward, but can't get back pay.
- What are the only ways that Art. IV Privileges and Immunities allows states to discriminate against non-citizens?
- Voting; direct market participant.
- What are the Commerce Clause restrictions on state/local regulation of commerce?
- 1. Discrimination against out of state interests.
2. Excessively burdensome on interstate commerce.
- How do you know if a state/local law improperly discriminates against out of state interests?
- If it is not TRULY NECESSARY for an IMPORTANT OR SIGNIFICANT INTEREST (such as animals, people or environment)
- How do you know if a law is excessively burdensome on interstate commerce?
- The person attacking the law must show that the burden is clearly excessive when compared to legitimate local benefits.
- What if the exam quetsion tells you that the state could EQUALLY achieve its legitimate goal with two different options?
- Then make the state use the least burdensome. But if there is ANY difference, the State can choose.
- What are the strongest avenues of attack of state or local taxation of interstate commerce?
- 1. Art. IV (if it's David Letterman)
2. Commerce Clause (if it discriminates against out of state interests)
3. Equal Protection (if Congress gave immunity from Commerce Clause)
- When does a private person or entity have state action?
- 1. When it takes on functions traditionally done by government exclusively (selecting jury; running a town).
2. NONNEUTRAL involvement between government and the complained of activity (government grant is not enough)
- What is the Due Process Principle?
- A person should receive fair process if the government is about to deprive or has deprived a person of life, liberty or property.
- When has a person lost liberty?
- When they lose a constitutional right or significant freedom of action.
- When has a person lost property?
- When they have an entitlement (versus expectation) NOT RIGHT VERSUS PRIVILEGE.
- When is there a taking of property?
- 1. If the Government physically appropriates property or changes the right to occupy the property. EXCEPT FOR a. emergencies or b. civil liberty/labor regulations.
2. Laws that permanently deprive owner of all economic value of real property.
- What is the Rule of the Letter U?
- The property owner must carry the burden of proving that the law/regulation is so unfair and unjust that compensation should be required for the economic impact of the government regulation.
- It is never unjust/unfair to ban property uses that harm:
- animals, people or the environment.
- Where do we find the Due Process Clause?
- Federal government: 5th Amendment.
State and local: 14th Amendment.
- Where do we find the Equal Protection Clause?
- State and local: 14th Amendment.
Federal government: implied in the 5th Amendment Due Process Clause.
- How do you choose between substantive due process and equal protection?
- If it affects everyone equally, then choose substantive due process.
- Who has the burden of proof when the test is rational relationship to a legitimate interest?
- The plaintiff.
- What classification does racial discrimination receive, and what test is used?
- 1. Race & National Origin: purposeful discrimination invalid unless gov't can prove it's necessary to promote a compelling interest. (aff. action must meet this test)
- What about alienage classification?
- 1. Federal Government needs only rational relationship to legitimate interest to discriminate against non-U.S. citizens.
2. State and local entitles need necessary to promote a compelling interest. UNLESS it relates to Democratic Process.
- What about illegal aliens?
- The only thing they get is that under Equal Protection their kids have a right to public school education.
- What level of scrutiny for legitimacy/illegitimacy classifications?
- Substantial relationship to an important state interest. Burden on state.
- What level of scrutiny for discrimination based on gender?
- Substantial relationship to an important interest.
- What are the fundamental rights?
- What level of scrutiny for violation of fundamental rights?
- Necessary to promote a compelling interest.
- What has the Court said about the right to die?
- We have an interest to refuse medical treatment, but family members do not have the right to deny treatment, and there is no right to assisted suicide.
- What is the standard for abortion pre-viability?
- Regulation is permissible if it does not impose an undue burden on the woman's freedom of choice.
- What is the standard for abortion post-viability?
- Government may ben or limit abortions unless there is a threat to the life or health of the woman.
- What is the rule for contraceptives?
- Can't ban their sale, even for unmarried persons (equal protection issue).
- What is the constitutional right for sexual activity?
- Only consenting adults in private have a constitutional right to sex.
- What is the Grandpa Rule?
- Cities can't limit dwellings to parents & children only.
But they CAN prevent unrelated persons from moving into a house!
- What if a State counts only every third voter?
- Violates equal protection.
- Can states regulate political parties and candidates?
- Yes, but it must be narrowly tailored to promote a compelling interest. The interest is preserving a stable political system and protecting the integrity of the process.
- Does the one person-one vote principle apply to referenda?
- What is the right to travel all about?
- We can move state to state.
The new state can withhold benefits long enough to make sure you're really a citizen (there's a compelling interest in avoiding fraud), but once that is set the government has to treat you like a citizen. Usu. 6 month delays are okay. This is Privileges and Immunities Clause of FOURTEENTH AMENDMENT.
- What is the standard for time, place, manner regulations on First Amendment?
- Time, place or manner regulations must be narrowly tailored to promote an important interest that is unrelated to the message being communicated.
- What three part test must time, place, manner regulations meet?
- 1. Content neutral
2. Significant/important interest
3. Alternative channels of communications (narrow tailoring).
- How may government allocate licenses for speech in truly public places?
- Must meet valid time, place or manner elements, and permit giver MUST HAVE NO DISCRETION.
- What is the standard for nonpublic fora?
- This is a place or channel of communication that the government own/controls and has not thrown open to general discourse.
The regulation has to be only reasonable and not viewpoint suppression.
- What are the types of unprotected speech?
- What are the two types of "clear and present danger" prohibitions?
- 1. Advocacy of illegal action (incitement to imminent lawless action);
- What is the usual problem with fighting words regulations?
- They are usually vague and overbroad.
- What must the government prove to make it illegal to ban a book?
- Sexy to Someone
Goes beyond Society's Standards (easy for government)
No Serious value (judged by reasonable person, NOT community standard)
- What types of commercial speech can be prohibited?
- False, deceptive or misleading commercial speech.
- What is the test for regulation of truthful speech about a lawful product?
- The regulation must be no more extensive than necessary to directly advance a substantial interest. (reasonable fit) Example: cigarette advertising.
- If Government wants to punish speech that is not unprotected, what does it need to show?
- Narrowly tailored to promote compelling interest.
- When can the Government punish a person because of his or her religious beliefs?
- Only if it is necessary to promote a compelling interest (Supreme Court can't even imagine a scenario!).
- When does Free Exercise Clause permit exemptions from general laws?
- 1. Some limited exemptions from unemployment compensation requirements for persons who must quit a job or refuse work for religious reasons.
2. Amish do not have to send their kids to school after the 8th grade.
- What is the standard for laws that provide aid to religion but which do not have a preference for particular sects?
No Excessive Entanglement
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