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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);
2. Threats
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?

Secular Purpose
Secular Effect
No Excessive Entanglement

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