Constitutional Law Flashcards Preview

Bar Exam > Constitutional Law > Flashcards

Flashcards in Constitutional Law Deck (26)
Loading flashcards...
1
Q

Standing - Components

A
  1. Injury - direct and personal
  2. Causation - causal connection
  3. Redressability

A person has standing to assert rights of a third party if it is difficult for the third party to assert his own rights, or a special reliationship exists such as doctor-patient.

2
Q

Standing - Organizational

A

An organization has standing if:

  1. There is an injury in fact to members that gives them a right to sue on their own behalf;
  2. The injury is related to the organization’s purpose; AND
  3. Individual member participation in the lawsuit is not required.
3
Q

Full Faith and Credit Clause

A

A state must recognize and give full faith and credit to all judgments rendered in other states if:

  1. The court that rendered the judgment had jurisdiction over the parties and subject matter;
  2. The judgment was on the merits; and
  3. The judgment was final.
4
Q

Privileges & Immunities - Art. IV

A

Prohibits discrimination by a state against non-resident citizens. Only fundamental rights are protected, such as civil liberties and the pursuit of a livelihood.

Requires “substantial justification” for an exception, meaning that the non-residents either cause or are part of the problem and there are no less restrictive means available.

5
Q

Dormant Commerce Clause

A

If the discrimination burdens interstate commerce and there is no applicable federal legislation, the action is invalid unless:

  1. If further an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives;
  2. The state is a market participant; or
  3. It involves government action regarding the performance of a traditional governmental function.

If it does not discriminate, but the law burdens interstate commerce and the burden outweighs the state’s interest in the action, then the law is invalid.

6
Q

Taxes on Interstate Commerce

A

Discriminatory taxes violate the Commerce Clause unless authorized by Congress. They may also violate the Privileges & Immunities or Equal Protection clauses.

Nondiscriminatory taxes are valid if:

  1. Substantial nexus between the activity and the taxing state;
  2. Fair apportionment according to some rational formula; AND
  3. Fair relationship to the services or benefits provided by the state.

A tax on insturmentalities of interstate commerce must have a taxable situs and be properly apportioned.

7
Q

Contract Clause

A

The contract clause prohibits states from enacting any law that retroactively imparis contracts rights (not applicable to federal government).

Private Contracts - Intermediate Scrutiny: State legislation that substantially impairs an existing private contract is invalid unless the legislation (1) services an important and legitimate public interest and (2) is a reasonable and narrowly tailored means of promoting that interest.

Public Contracts - Stricter Scrutiny: Legislation that impairs a contract to which a state is a party uses the same basic test, but will likely receive stricter scrutiny, particularly if the legislation reduces the contractual burdens on the state.

8
Q

Procedural Due Process Analysis

(Mathews v. Eldridge test)

A

The type and extent of required procedures are determined by a three-part balancing test:

  1. The importance of the interest to the individual; AND
  2. The value of specific procedural safeguards to that interest; AGAINST
  3. The government interest in fiscal and administrative efficiency.
9
Q

Prior Notice / Prior Evidentiary Hearing

A
  1. Commitment to a mental institution (except in emergency); children require prior screening by a neutral fact-finder.
  2. Welfare Benefits
  3. Termination of Parental Custody Rights
  4. Civil Forfeiture of Real Property
  5. Driver’s License Suspension (except breathalyzer suspension statutes)
10
Q

Prior Notice / Subsequent Hearing

A
  1. Disability Benefits
  2. Public Employment (tenured or for cause)
  3. Public Education (only requires opportunity to respond, no evidentiary hearing)
  4. Civil Forfeiture of Personal Property (no notice in exigent circumstances)
11
Q

Takings

A

Under the Fifth Amendment, private property may not be taken for public use without just compensation.

Public use is required - the government’s action must be rationally related to a legitimate public purpose.

Just compensation is measured by the loss to the owner, not the gain by the government.

12
Q

Rational Basis Test

A

The law will be upheld if it is rationally related to a legitimate government purpose.

Burden is on the challenger.

Just has to be something permissible or legitimate for the government to do. Actual purpose does not have to be legitimate, so long as there is a conceivable legitimate purpose. The means just have to be a rational means.

13
Q

Intermediate Scrutiny Test

A

The law will be upheld if it is substantially related to an important government purpose.

Government has the burden of proof.

More than just legitimate, must be important. Court will look only to actual purpose. Mean must substantially relate (be a very good way) to achieve the objective, i.e. “narrowly tailored”. However, the means do not need to be the best, or least restrictive method.

14
Q

Strict Scrutiny Test

A

The law will be upheld if it is necessary to achieve a compelling government purpose.

Burden is on the government.

More than just something legitimate, must be crucial, vital, compelling. Looks only to actual purpose. Means must be necessary to obtain the objective, so must be the necessary and least restrictive means.

15
Q

Strict Scrutiny Rights

A
  1. Right to Marry
  2. Right to Procreate
  3. Right to Custody of Children
  4. Right to Keep Family Together
  5. Right to Control Raising of Children
  6. Right to Purchase and Use Contraceptives
  7. Right to Interstate Travel
  8. Right to Vote
  9. Freedom of Speech
  10. Freedom of Association
  11. Free Exercise of Religion
16
Q

Equal Protection Classifications

A

Strict Scrutiny / Suspect Classification: Race, national origin, alienage

Intermediate Scrutiny / Quasi-Suspect Classification: Gender, Illegitimacy, Undocumented Alien Children

Rational Basis: Alienage classifications related to self-government and the democratic process (police officers, school teachers), congressional regulation of aliens, age, disability, wealth, all others.

17
Q

Abortion

A

Under Burden Test
Two basic rules: pre-viability and post-viability.

Pre-Viability
No undue burden to require dorctor to give relevant information to make informed consent; requiring 24-hour waiting period; requiring parental consent or notice if there is a judicial bypass option; requiring performance only by license physician, and barring a well-defined partial-birth abortion procedure.

Spousal notification is an undue burden

Post-Viability: abortion may be prohibited so long as permitted if necessary to protect the woman’s health or safety.

18
Q

Free Speech - Scrutiny Levels

A

Content-based restrictions must meet strict scrutiny - may be subject matter restrictions or viewpoint restrictions.

Content-neutral restrictions must meet intermediate scrutiny.

Prior restraints on speech must meet strict scrutiny.

Government speech - rational basis.

Commercial speech - generally intermediate scrutiny.

19
Q

Vagueness / Overbreadth - Free Speech

A

Vagueness: a law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed.

Overbreadth: A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

Fighting words laws are almost always unconstitutionally vague and overbroad.

20
Q

Symbolic Speech / Incitement

A

Symbolic Speech

The government can regulate conduct that communicates if it has an important interest unrelated to the suppression of the message and if the impact on communication is no greater than necessary to achieve the goverment’s purpose.

Incitement of Illegal Activity

The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing illegal activity.

21
Q

Obscenity

A

All three requirements must be met:

  1. The material must appeal to the prurient interest (a shameful or morbid interest in sex);
  2. The material must be patently offensive under the law prohibiting obscenity (must delineate what materials are patently offensive); AND
  3. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (national standard).

Child pornography may be completely banned even as to private possession if actual children are involved.

Profane and indecent speech is generally protected.

22
Q

Public Forums - Traditional & Designated

A

The government may regulate speech in public forums and designated public forums with reasonable time, place, and manner regulations that:

  1. Are content-neutral;
  2. Are narrowly tailored to serve an important government interest; AND
  3. Leave open alternative channels of communication.

Even if the regulation meets this test, can still be invalid if overbroad, vague, or gives unfettered discretion.

23
Q

Limited Public Forums and Nonpublic Forums

A

The government can regulate speech in such a forum to reserve the forum for its intended use. In such locations, regulations are valid if they are:

  1. Viewpoint neutral; AND
  2. Reasonably related to a legitimate government purpose.
24
Q

Freedom of Association

A

Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person:

  1. Actively affiliated with the group;
  2. Knowing of its illegal activities; AND
  3. WIth the specific intent of furthering those illegal activities.

Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.

Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.

25
Q

Free Exercise Clause

A

The Free Exercise clause prohibits the government from punishing someone on the basis of the person’s religious beliefs. A law of general applicability will not be subject to invalidation even if it incidentally interferes with one’s religious practices. However, a law that is specifically designed to interfere with religion will be subject to the strict scrutiny test.

A belief must occupy a place in the believer’s life that is parallel to that occupied by orthodox religious beliefs.

26
Q

Establishment Clause

A

The Establishment Clause prohibits the establishment of religion. If the law or government program includes a preference for some religious sects over others, then the court will apply the strict scrutiny test. On the other hand, if the law does not have a sect preference, then strict scrutiny is not applied. Instead, the law or program is analyzed under the Lemon test, where it is valid if:

  1. It has a secular purpose;
  2. Has a primary effect that neither advances nor inhibits religion; AND
  3. Does not produce excessive government entanglement with religion.