Barbri Constitutional Law
Terms
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- What is the standard for time, place, and manner regulations?
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1) Content neutral
2) Narrowly tailored to serve a significant government interest
3) Leaves open alternative channels of communication. - What are the elemetns of obscene speech?
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1) appeals to the prurient interest (community)
2) Is patently offensive to contemporary community standards (community)
3) Lacks serious balue (national reasonable person) - May an individually possess obscene speech?
- Yes...in there home (but does NOT apply to child porn).
- What is the standard for commercial speech?
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Upheld if truthful, but misleading/fraudulent may be regulated if:
1) serves a substantial government interest
2) directly advances that interest
3) Narrowly tailored to that interest. - What is the standard for abortions?
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Previability - cannot unduly burden access to abortion (eg must notify spouse, prohibit ALL abortions)
Post-viability - cannot prohibit abortion to save life or health of mother. - Is international travel a fundamental right?
- No
- Is property ownership req to vote valid? Is a 1 year residency to vote valid? Is a 30 day residency to vote valid?
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Property ownership: No.
1 year residency: No.
30 day residency: Yes. - What are the suspect classifications?
- Race, national origin, alienage
- What is the strict scrutiny test and who has the burden?
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Is the law necessary to achieve a compelling government interest?
Government has the burden - What is the intermediate scruity test?
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Is the law substantially related to an important government interest?
Burden on the government - What is the rational basis test?
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Is the law rationally related to a legitimate government interest (any legit government interest)
Burden on the plaintiff. - What are the quasi-suspect classifications?
- Gender, Legitimacy
- What is the standard for affirmative action?
- Strict scrutiny, but may remedy past discrimination.
- What is the special rule about alienage classifications?
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Congress has pleary power over aliens, so FEDERAL alienage classification are NOT subject to strict scrutiny (valid of not arbitrary and unreasonable)
STATE and LOCAL classification are subject to strict scruitiny.
EXCEPT, if a law discriminates against alien participation in state government, then rational basis is applied.
ALSO rational basis regarding important public policy positions (police officers, probation officers, teachers)
ALSO look at whether the position requires a role in government (eg a notary position cannot have a alienage restriction). - When is government action a taking?
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Actual appropriation or physical invasion, denial of ALL economic value of land
When decreasing economic value, use a balancing test:
1) social goals
2) diminution in value to owner
3) owner's reasonable expectations.
Remedy for taking is "just compensation" - What is the Contract Clause?
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Prohibits states from enacing any law that RETROACTIVELY impairs contract rights.
Does NOT apply to the federal government.
Intermediate scrutiny to private contracts, strict scrutiny for public contracts. - What is an ex post facto law?
- Law that RETROACTIVELY alters criminal offenses or punishments in a substantially prejudicial manner (1) makes criminal an act that was innocent when done 2) reduces the evidence required to convict, 3) prescribes greater punishment
- What type of process is required to satisfy due process?
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Balancing test:
1) Importance of the interest to the individual
2) Procedural safeguards to that interest
3) Government interest in fiscal and administrative efficiency. - What does the 14th Amendment prohibit?
- Prohibits STATE (only states, not federal) from depriving w/o due process and equal protection of the law
- What does the 15th Amendment prevent?
- prevents BOTH federal and state government from denying a citizen the right to vote on account of race or color.
- What is Section 5 of the 14th amendment?
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Gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by teh 14th amendment.
NOTE: Congress may NOT create new rights or expand existing rights...may only act to prvent or remedy violations of rights already recognized. - How can Congress prevent PRIVATE racial discrimination?
- Through the Commerce Clause
- What are two examples of state action (eg significant state involvement that would require due process)?
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* 1) Running a town
* 2) Conducting an election
3) Enforcing restrictive covenants prohibiting sale or lease of property through use of state courts
* 4) Leasing premises to a discriminatory lessee where state derives extra benefit from the discrimination
5) Allowing state official to act in discriminatory manner under "color of state law"
6) Administering a private discriminatory trust by public officials