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Constitutional Law


Constitutional law (I) Judicial power (2) Legislative Power (3) Executive Power (4) Federalism (5) Constitution's Protection of Individual Liberties (6) Individual Liberties (7) Equal Protection (8) First Amendment
Judicial Power--Article 3 Article 3 Grants article 3 courts power to hear all CASES and CONTROVERSIES.
Federal Judicial Power Federal judicial power extends to cases involving: (I) Interpretation of the Constitution, federal law, treaties, and admiralty/maritime laws. (II) Disputes btw. States, States & Foreign Citizens and citizens of DIVERSE citizenship.
Article I and Article 3 Courts Article I courts are (e.g. tax courts) Congress created courts. Judges in those courts do not have life tenure as do article III judges, and Congress may not assign to Art. I courts jurisdiction over cases that have traditionally tried in Art. III courts.
Requirements from the Cases and Controversy restriction. (I)Standing as proven by (1)injury (2)Causation and Redressability (3)No third Party Standing (4) No generalized grievances. (II) Ripeness. (III) Mootness (IV) Political Question Doctrine.
Standing: Injury (standing 1) -The issue is whether the PLA is the proper party to bring a matter to the CT for adjudication. TEST: Injury--the PLA must allege and prove the they have been injured or imminently will be injured. "PLA must have a concrete stake in the outcome"
Injury rules. (Standing 2) (i) PLA's only may assert injuries that they have personally have suffered. (ii) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm.
Causation and redressability (standing 3) The PLA must allege and prove that the Def. caused the injury so that a favorable court decision is likely to remedy the injury.
No third party standing (Standing 4) G/R: A PLA can't assert claims of others, of 3rd parties, who are not before the court UNLESS
Third Party Standing Exceptions (Standing 5) Third party standing is allowed if (1) there is a close relationship btw. the PLA and the injured 3rd party. (2) If the injured 3rd party is allowed if the injured party is unlikely to be able to assert his or how own rights.
Organization Standing (another third party standing exception) (Standing 6) An organization may sue for its members if (1) the members or a member would have standing to sue (2) the interest at suit is germane to the org.'s purpose, and (3) neither the claim nor relief requires participation of individual members.
No generalized grievances (Standing 7) A plaintiff must not being suing soley as a citizen or as a taxpayer interested in having the government follow the law. But its ok to sue as a class member. Except--tax payers have standing to sue pursuant to a federal stat. violating the establ. clause.
Ripeness Ripeness is the question of whether the fed. court may grant pre-enforcement review (PER) of a statute or reg. G/R: must est. (1) hardship will be suffered w/o PER and (2) the issue and record is fit for judicial review.
Mootness If events after the filing of a lawsuit end the PLA's injury the case must be dismissed as moot.
Exceptions to Mootness. (1) The wrong is capable of repetition but is evading review. (2) Voluntary cessation of act causing harm. (3) Class Action Suits: If the name class member's injury becomes moot, the case will not be dismissed so long as one class member still suffers.
The political Question doctrine This doctrine refers to constitutional violations that the Fed. Courts will not adjduciate: (1) The republican form of gov. clause, (2) Challenges to the Presidents conduct of foreign policy (3) Impeachment (4) partisan gerrymandering.
Supreme Court Original Jurisdiction SCOTUS has original jurisdiction in all cases affecting (1) ambassadors, public ministers, consuls and (2) those in which a state is a party. Congress has given concurrent jurisdiction to lower fed. cts. in all cases except states (congress may not bar)
Scotus Appellate Jurisdiction SCOTUS has appellate jurisidction to hear appeals on all cases in which federal power extends(subject to congressional regulations) They come by way of two way (1) Writ of Certiorari (2) and Appeals
Writ of Certiorari (1) All cases from the States come to SCOTUS by writ. (2) All Cases from the US Court of Appeals come to SCOTUS by writ (except for decisions by three-judge fed. district courts-direct appeal occurs).
Appeal to Scotus RARE: SCOTUS MUST hear cases that come to it by appeal---like the a three judge federal district court panel (they skip Courts of Appeals).
Finality: Generally, the Supreme Court may hear cases only after they has been a FINAL JUDGMENT of the highest state court, US Court of Appeals, or 3 fed district ct. panel. I.e. No interlocutory appeals.
No Advisory Opinion Follows from standing requirements.
States Appeals For SCOTUS to review a state CT dec., there must not be an independent and adequate ST law ground for the dec. If a state CT dec. rests on two grounds, ST and FED, if SCOTUS's reversal on fed. grounds will not change the outcome, SCOTUS cant hear the cse.
Lower Federal Court Review Federal and State Courts may not hear suits against State governments because of (1) Sovereign Immunity and (2) 11th Amendment bars suits against states in fed. ct.
Exceptions to Sovereign Immunity and the 11th amendment States may be sued under the following circumstances: (1) Express waiver. (2) States may be sued pursuant to fed. laws adopted under section 5 of the Fourteenth amendment. (3) The Fed. gov. may sue States. (4) Bankruptcy proceedings.
Exceptions to Sovereign Immunity and the 11th amendment continued: (5) Suits against States Officers are allowed: State officers may be sued for injunctive relief, money dmgs. they pay out of their own pockets---but not if dmgs. are to be paid out of the State treasury.
Abstention Doctrine Federal Courts may not enjoin pending state court proceedings.
Legislative Power Congress's authority to act (1) must be express or implied power. (2) arise from the necessary and proper clause, (3) primarily arises from the tax & spending power and the commerce clause (4) Congress' power under Section 5 of the 14th amend.
Express or implied congressional power There is no general federal police power, Congress may only exercise those powers expressly enumerated except in case of the military, District of Columbia, Indian Reservations and Federal Lands.
Necessary and Proper Clause Art. I, Section 8: Congress may choose any means not prohibited by the constitution to carry out its laws--Congress has the power to make all laws necessary and proper for executing ANY power granted to ANY branch of the fed. gov.
Taxing and Spending power A. Congress may tax and spend for the general welfare B. Test: Taxes will be upheld if they bear some REASONABLE relationship to revenue production or if Congress has pwr. to regulate the activity taxed. Test for Spending: Any public purpose.
Commerce Power (A) Congress may regulate the (i) the channels;(2) the instrumentalities, persons, or things and (3) economic activities that have a substantial effect on interstate commerce (non-economic activity, subst. effect cant be based upon cumul. impact).
Intrastate Activity Congress's attempts to regu. intrastate activity will be upheld if it is commercial activity and there is a rational basis for the regulation on which Congress could conclude that the activity in aggregate subst. affects interstate commerc.
War and related powers: The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
Investigatory Power The power of Congress to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house.
Property Power Congress has general police power to dispose of and make rules for territories and other properties of the U.S.
Bankruptcy Power Congress's power to establish uniform rules for Bankruptchy is NONEXCLUSIVE, states may legislate in the field so long as their laws do not conflict with federal laws.
Postal Power The power is EXCLUSIVE. Under the postal power, Congress may validly classify and place reasonable restrictions on the use of the mails, but may not deprive any citizen or group of general mail privilege.
Power over Citizenship. Congress may est. uniform rules of naturalization. Aliens may be summarily barred from entering the U.S. but resident aliens are entitled to notice and a hearing b/f deportation.
Foreign Trade. Congress has near exclusive power over foreign trade, but they cannot nor can States tax EXPORTS to foreign countries.
Naturalization and Denaturalization Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away citizenship of any citizen-natural or native-born, without his consent.
Delegation of Congressional Power No limit to Congress's ability to delegate their legislative powers as long as intellegible standards are set and the power is not uniquely confined to Congress.
Legislative Vetos and and Line Item vetos Are unconstitutional.
Congress delegating executive power to itself or its officers. NOT ALLOWED.
Executive Power (1) Foreign Policy (2) Executive Agreements (3) Appointment and Removal Power (4) Commander in Chief Power. (5) Pardoning Power
Foreign Relations President has paramount power to represent the US in day-to-day foreign relations
Treaty power The president has the power to enter into treaties with consent of 2/3 of the Senate.
Treaties Treaties are the Supreme Law of the laws and prevail over conflicting State laws. They prevail over a conflicting federal statute if adopted last in time. But is invalidate if it conflicts with the Constitution.
Executive agreements Definition: An executive agreement is an agreement btw. the U.S. and a foreign country that is effective when signed by the Pres. and head of the foreign nation. May be used for any purpose. Federal law prevails over this agreements, but not state law.
Commander in Chief The president has no power to declare war, but may act militarily in actual hostilities against the U.S. w/o a declaration of war. Congress may limit this action thru its power of the purse.
Presidential power as Chief Executive (I) if Pres. acts with express or implied power of Congress, his authority is at its zenith. (II). If Pres. Acts when Congress is silent, his action will be upheld unless it usurps the power or prevents another branch of gov acting.
Presidential Power as Chief Executive versus express will of Congress Presidential power is at its lowest and likely invalid.
Appointment power The president appoints ambassadors, fed. judges, and officers of the U.S. and Senate must confirmed by a 2/3rds majority. But only the president may nominate.
Congress and Appointment power Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal federal courts. But! may not give itself or its officers the appointment power.
Removal Power. Unless removal is limited by statute, the President may fire any executive branch officer. Congress may only remove an officer through impeachment
Congressional limits on removal. For Congress to limit removal, it must be an office where independence from the President is desirable AND Congress cannot prohibit removal, but may limit the grounds to "good cause."
Veto power If the president disapproves an Act of Congress, the act may still become law if the veto is overridden by 2/3ds vote of EACH house.
Pocket Veto The president has 10 days to exercise the veto power. If he fails to act w/in that time the bill is automatically vetoed if Congress is not in session. If in session, the bill becomes laws.
Impeachment and Removal The president, Vice President, Fed. Judges, and officers of the US may be impeached and removed from office for treason, briber, or high crimes and misdeamonors.
Impeachment Does not remove a person from office, only a conviction removes a person from officer. Impeachment by the House requires a majority vote, Conviction in the Senate requires a 2/3rds vote.
Executive Privilege The president has a privilege to keep certain communications secret. National security secrets are given great deference by the courts. Except: in crim. proceedings, pres. communiques will be available to the pros. where a need for such info. is demonst.
Executive Immunity The president has absolute immunity from civil suits for ANY action while in office. But not for acts prior or committed after leaving office.
Pardoning power The President has the power to pardon those accused or convicted of federal crimes. Impeachment cannot be pardoned and its limited to criminal liability.
Federalism Preemption: The Supremacy Clause of Article VI provides that the Constitution, and the laws and treaties made pursuant to it, are the Supreme law of the land.
Express Preemption A valid federal statute or regulation may expressly occupy a field-express "field preemption"--by stating that local and state laws are preempted but are narrowly construed.
Implied preemption Even if federal statute is silent as to preemption, a state law is still preempted if...
Types of Implied preemption Fed. law preempts (1) if fed. and ST laws are mutually exclusive, unless its an environmental law, STs my set stricter standards. (2) The ST law impedes the achievement of a federal objective, (3) if Congress evidence a clear and manifest purpose.
Interstate Commerce Clause. If an agreement increases states' power at the expense of federal power, congressional approval is required.
Tenth Amendment States that all powers not granted to the US, or prohibited to them, are reserved to the States or the people.
States may tax. . . Federal government activity (inter-governmental immunity) if they are placing a significant burden on the activity or the State tax would be paid out of the federal treasury.
Intersovereign litigation Federal gov. may sue States w/o their permission. States may only sue the feds w/their permission or each other. Btw. States Feds have exclusive jurisdiction.
Dormant Commerce Clause Negative Implications of the Commerce clause: State and local laws are unconstitutional if they place an undue burden on interstate commerce
Article IV Privileges and Immunities Clauses (not applicable to corporations or aliens). "No State may deprive the citizens of other states, the priv. and immunities enjoyed by its citizens'.
Privileges and Immunities Clause of the 14th amendment. Do not discuss this unless it involves the right to travel. It is not applicable to corporations.
Analysis for Dormant Commerce Clause: (DCC-1) First, does the State law discriminate against out of staters?
If a State Law Does NOT Discriminate against out of staters (DCC-2) -The privileges and immunities clause of the Art. VI does not apply. -If the law burdens interstate commerce, it violates the commerce clause it its burdens exceeds its benefits under a balancing test.
If a State law DISCRIMINATES against out of staters in regards to interstate commerce.....(DCC-3) -If it burdens interstate commerce, it violates the dormant commerce clause, unless it is necessary to achieve an important government purpose-necessary means there is no less discrim. alternative means to achieve objective.
A state law is allowed to violate the dormant commerce clause if . . . (DCC-4) (1) Congress approve or (2) The State is acting as a market participant. A State or local gov. may prefer its own citizens in receiving benefits from government programs or in dealing with gov. owned business
If a State law discriminates against out of staters with regards to their ability to earn their livelihood. . . . It violates the privileges and immunities clause of art. VI unless it is necessary to achieve an important gov. purpose. Remember, discrimination must involves civil liberties or important economic activities.
State taxation of interstate commerce: (Rarely tested on so notes are only from lecture outline). 1. States may NOT use their tax systems to help in-state businesses. 2. A state may only tax activities if there is a substantial nexus to the state. 3. State taxation of interstate businesses must be fairly apportioned.
Taxes on commodities in interstates commerce NOT ALLOWED. A good enters interstate commerce when it (1) is delivered to an interstate carriers OR (2) actually starts it interstate journey.
When a commodity ends it interstate shipment (Ad Valorem Property Tax) It may be taxed by a state.
Tax on instrumentality used to Transport Goods Interstates (Ad Valorem Property Tax) Permissibility depends upon (1) whether the instru. has acquired a "taxable situs" in the taxing state and (2) whether the value of the instrumentality has been properly apportioned according to the amount of contacts with each taxing state.
Federal taxes and regulations applying to both state and private entities are valid Federal Taxes only on state governments may be limited by the Tenth Amendment
Commandeering of States officials by Congress is. . . SCOTUS has held that Congress may not require state executives to enforce federal laws...congress cannot compel state regulatory or legislative action as well. But may induce state action by putting strings on grants.
State privilege, license, franchise, or occupational taxes. Are generally valid. The taxes must (1) tax an activity that has a substantial nexus to the state and (2) the tax must be fairly apportioned and (3) the tax must fairly related to services provided by the state.
Full Faith and Credit Clause Courts in one state must give full faith and credit to judgments of courts in another state so long as: (1) That court rendered judgment had jurisdiction over the parties and subject matter and (2) the judgment was on the merits and (3) was final.
Constitutional protection of Individual Liberties applies... (1) if there is STATE action. The constitution only restricts state action, congress may thru statutes apply these norms.
Thirteenth amendment May be used to prohibit public and private racial discrimination, as part of congress's power to enforce this amendment which bars slavery and indentured fortitude.
Commerce clause and rights The commerce power may be used to apply constitutional norms to private conduct. I.e. Congress may prohibit PRIVATE racial discrimination that has a substantial effect on interstate commerce.
Congress and enforcement section of the 14th amendment Congress cant use section 5 to regulate private behavior. Here, Congress may NOT expand existing constit. rights or create new ones--it may only enact laws to remedy or prevent violation of already recog. rights. Such law must be congruent and proport.
Public Function exception State action need not be present if a private entity is performing a task traditionally, exclusively done by a gov. (very narrorow)
Entanglement Exception The Const. applies if the gov. affirmatively authorizes, encourages, or facilities unconstitutional actively. E.g. COURTS CANNOT ENFORCE RACIALLY RESTRICT COVENANTS; state lease to racially discrim. restaurant.
Examples of Government Entanglement (1) -There is state action when a state provides books to schools that racially discriminates. -There is NO state action whena private scool that is over 99% funded by gov. fires a teach b/c of her speech. -There is no ST action when the NCAA orders anythin
Examples of Government Entanglement (2) -There is state action when private entity regulates interscholastic sports w/in a state. -There is NOT state action when a private club with a liquor license from the state racially discriminates.
Applicability of the Bill of Rights Only restricts the federal government except 14th amend. due process applies all the BoR except for certain provisions
The due process clause of the 14th amendment applies all of the bill of rights to the states except . . . -The Third Amendment Right not to have a soldier quartered in a person's home. -The Fifth Amendment right to a grand jury indictment in criminal cases. -The 7th amendment right to jury trial in civil cases. -The 8th amend. right against excessive fines
Levels of Scrutiny Rational Basis Test Intermediate scrutiny Strict Scrutiny
Rational Basis Test A law is upheld if it is rationally (conceivably) related to a legitimate gov. purpose. Burden of Proof is on the challenger.
Intermediate Scrutiny A law is upheld if it is SUBSTANTIALLY (often means narrowly tailored) to an IMPORTANT gov. purpose. Important is determined by on the ACTUAL purpose. BOP on the government.
Strict Scrutiny A law will be upheld if it is necessary to achieve a compelling gov. purpose. Necessary means it is the least restrictive alternative. BOP on the government.
Procedural Due Process A fair process is required for a gov. agency to individ. take a p's "life, liberty, or property." Only intentional, not negligent, deprivation of these rights violates DP. But in emergency, deprivation exists only if gov. action "shocks the conscience."
Liberty Not specifically defined, but a deprivation of a liberty occurs if there is a loss of a significant freedom provided by the Const. or statute. -Loss of reputation is not a taking.
Generally to take a liberty . . . . ....notice and an hearing is required
Property A deprivation of property occurs if there is an entitlement and the entitlement is not fulfilled. An entitlement exists if there is a reasonable expectation of a continued benefit.
Generally, the governments failure to protect people from privately inflicted harm.... ....does not deny due process.
What procedures are required: Procedures are determined by a balancing test btw. the following factors: (1) the importance of the interest to the individual and, (2) The ability of additional procedures to increase the accuracy of the fact-finding, and (3) the government's interest.
Procedural Due Process Examples (see lecture outline on pg. 24 for more examples). (1) Before welfare benefits may be terminated there must be notice and a hearing: contrast w/ . . . (2) S.S. benefits may be term. and only a post hearing is req. (3)When Student is punished by the school there must be notice & a chance to to explain...
Due Process and Waiver As a general rule, DP rights are, presumably, subject to waiver if the waiver is (1) VOLUNTARY and (2) Made KNOWINGLY!
Indigents and Due Process Gov. fees MUST be waived when imposition of a fee would deny a fundamental right to the indigent. However, fees may be imposed on non-fundamental right.
Economic liberties Only a rational basis test is used for laws affecting economic rights. The Constitution provides only minimal protection for economic liberties.
Takings clause (5th amendment) The gov. may take private property for public use if it provides just compensation.
A taking occurs when . . . Test: There is a taking when (1) possessory taking: gov. confiscation or phys. occupation is a taking and (2) Gov. regulation is a taking if it leaves no reasonable economically viable use of the property.
Public use and taking Public is is liberally construed, thus, if the gov. action is rationally related to a legitimate public use the public use requirement is met. If its not for public use the gov. must given the land back.
Government conditions (zoning) Gov. conditions on development of propety must be justified by a benfit that is roughly proportionate to the burden imposed: otherwise its a taking.
Coming to the taking (i.e. coming to the nuisance) A property owner may bring a takings challenge to regulations that exists at the time the property was acquired.
Temporary denials of use of land... Temporarily denying an owner of all ecnomic use of property does not constitute a taking per se. A totality of the circumstances test will be applied to determine where in fairness and justice compensation is required.
Remedies for a taking (1) Pay the property owner just compensation for the property OR (2) Terminate the regulation and pay the owner for dmgs that occurred while the regulation was in place. Value is determined by the loss to the owner.
Just compensation Generally fair market value, as valued by the loss to the owner.
Contracts Clause This clause prohibits STATES from enacting any law that RETROACTIVELY impairs contract rights.
Test for the Contract class (Note: this is test use diff. language than traditionally used). Test: If a State legislation substantially impairs an existing PRIVATE K, it is invalid unless it serves (1) an important and legitimate public interest and (2) is a reasonably and narrowly tailored means of achieving that purpose.Intermediate Scrutiny.
State and local interference with GOVERNMENT contracts Must meet a strict scrutiny standard.
State and Federal governments are barred from passing Ex post facto laws. An ex post facto law is a law that criminally punishes conduct that was lawful when it was done or increases punishment for a crimes after it was committed or lowers the level of proof required. Thus, does not apply to CIVIL cases.
State and Fed governments and Bill of Attainder Neither gov. may issue Bills of Attainder. A Bill of Attainder are legislative acts that inflict punishment on individuals without a judicial trial.
Fundamental Rights.... (1) Privacy (and many rights thereunder): (2)Right to Bear Arms: (3) The Right to Travel; (4)The Right to Vote: (5) There IS NO fund. right to Edu. (6) Right to Speech: (7) Association: (8) Exercise of Religion.
Right to Privacy includes . . .(RTP -1) Right to...(1)marry--Strict Scrutiny Applies (S.S.)(2)Procreate--S.S. (3)Custody of One's Children--S.S. (4)Keep the family together: S.S. (5)Control the upbringing of one's children: S.S. (6)Purchase and use contraceptives: S.S. (7) Abortion . . .
Rights of Privacy includes. . . (RTP-2) Right to . . . (8)engage in private consensual homosexual activity: test undetermined. (9)refuse medical treatment.
The Right to Abortion Test Determined by viability of the fetus.
Prior to viability States may not prohibit abortions, but MAY regulation abortions so long as they do not create an undue burden the ability to obtain abortions. see pg. 30 of lecture outline for examples
After viability A state may prohibit abortions unless necessary to protect the woman's life or health.
Government Funding and Abortions The government has no duty to subsidize abortions or provide abortions in public hospitals.
Abortions and Spousal consent and notification laws are . . . unconstitutional.
Parental Notice and abortions. A ST may req. parent. notice andor consent for an umarried minor's abort. but must create an alt. proced. where a Judge may approve the abort. by finding it would be in the M's best interests or decide she is mature enough to decide for herself.
Right to bear arms This is not an absolute right, the government may regulate where and whom may have guns.
The right to Travel Laws that prevent people from moving into a state must meet strict scrutiny.
Durational Residency Requirements Impact the right to travel and therefore must meet strict scrutiny. However, restrictions on foreign travel need only meet the rational basis test.
The Right to Vote---protected by the 15th amendment and Equal Protection Clause of 14th Amendment. Laws that deny some citizens the right to vote must meet strict scrutiny, but regulations of the electoral process to prevent fraud only need to be on balance desirable.
The One person one vote rule . . . must be met for all state and local elections. AND voting districts must be of the same population.
At large elections are .... are constitutional unless there is proof of a discriminatory purpose.
The use of race in drawing election district lines must.... meet strict scrutiny
Bush v. Gore Counting uncounted votes without standards in a presidential election violates equal protection.
Equal Protection Clause Exists in the Fourteenth Amendment, and in the Due process provision of the 5th amendment. The equal protection clause limits the ability of the government to discriminate against classes of people.
Equal Protection Analysis 1. Ask what is the classification: 2. What level of scrutiny should be applied 3. Does this law meet the level of Scrutiny.
Discriminatory Classifications require... For Strict or Intermediate scrutiny to be applied, there must be intent on the part of the gov. to discrim. Intent may be shown by: (a) a law that discrim. on its face or (b) a discrim. applic. of a neutral law, or (c) a discrim. motive behind the law.
Discriminatory effect Alone, is not enough to prove discriminatory intent.
Classifications based on Race and National Origin (alienage) are SUSPECT CLASSES 1. Strict Scrutiny is used.
Racial Classifications benefiting minorities.... 1. Must upheld by Strict Scrutiny. 2. Numerical set-asides require clear proof of past discrimination. 3. Edu. institutions may use race as one factor in admissions decision to help minorities (but not public schools and not add points).
Gender is a QUASI suspect class and therefore Gender classifications... 1. Intermediate Scrutiny is used and only if there is exceedingly persuasive justifications.
Gender classifications benefiting women... 1. Must not be based upon gender stereotypes. 2. Gender classifications that are designed to remedy past discrimination and differences in opportunity are valid.
Legitimacy classifications discriminate against a QUASI suspect class as well Intermediate Scrutiny is applied.
Aliens Federal discrimination is upheld under a rational basis test due to Congress's plenary power over aliens. State and local action must meet a Strict Scrutiny standard...
Exception for State and local governments discriminating against aliens... Rational Basis is used when state gov.s or local govs. discriminate against aliens participation in self government or non-elective offices involving important public policy.
Undocumented Aliens are... NOT A SUSPECT CLASS. Thus, State laws affecting them only must a rational basis test.
Rational Basis scrutiny then is used for.... (1) Age Discrimination (2)Disability Discrimination (3) Wealth Discrimination (4) Economic Regulations (5) Sexual Orientation Discrim.
Substantive Due process If a law limits liberty of ALL persons to engage in some activity is is usually a due process question...and if it limits a fundamental right then S.S. is used, otherwise Rational Basis.
Sources of Substantive Due Process Federal government is restrained by the Due Process clause in the 5th Amendment. While State governments are restrained by the 14th amendment.
First Amendment and Free Speech (restricts gov. regulations of private speech). Restrictions on speech are generall determined by content neutral versus Content based restrictions, prior restraints, and vagueness and over-breadth concerns.
Content based restrictions... generally must meet a strict scrutiny standard....two types of Content based restrictions subject matter and viewpoint restrictions.
Prior Restraints Court orders suppressing speech must meet strict scrutiny. Procedurally proper court order must be complied with until they are vacated or overturned.
Prior restraints and licenses The government can require a license for speech only if there is an IMPORTANT reason for licensing and clear criteria leaving almost discretion to the licensing authority. Licensing schemes must contain procedural safeguards...
Vagueness If a criminal law or regulation fails to give person reasonable notice of what is prohibited, it may violate the Due Process clause. This principle is applied somewhat strictly to regulations of the 1st amendment.
Over-breadth A law is unconstitutional if it regulates SUBSTANTIALLY more speech than its plainly legitimate sweep is facially invalid.
Content neutral restrictions Need only meet an intermediate scrutiny.
Fighting words statutes are generally. both vague and overbroad and thus unconstitutional.
Symbolic Speech The govern may 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 governments purpose.
Anonymous Speech....... ..........is protected.
Scope of Speech The freedom of speech includes the right not to speak. Generally, the gov. cannot require. people to salute the flag or display messages they disagree with. But symbolic speech may be regulated.
Government speech... cannot be challenged as violating the First Amendment.
Types of Speech receiving greater or lesser protection. (1) Incitement of Illegal Activity. (2) Obscenity and sexually orientate speech. (3)Commercial Speech (4)Defamation (5)Privacy (6)Place restrictions. (7) Time, place, manner restrictions. (8) Fighting words.
Inciting Imminent Lawless Action... Speech may be burdened if ti creates and clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is LIKELY and that the speaker INTENDED to cause it.
Obscenity Obscenity speech is not protected. It is obscene if it (1) Appeals to a prurient interest in sex, by a community standard; (2) is patently offensive (community standard) and; (3) Lacks serious liter, artistic, political, or scientic value (nat. standard).
Fighting Words -True threats are unprotected. Speech can also be burdened if they are fighting words (words that are likely to incite immediate physical retaliation in the reasonable person).
Obscenity regulations may... -gov. may use zoning ordinances to reg. the location of adult bookstores/theatres. -Child porno. may absolutely be banned and punish possession of it. May also seize materials of a business violating obscenity laws.
Profane and Indecent speech is generally protected by the 1st amendment... EXCEPT...over broadcast media and in schools.
Commercial Speech -Truthful commercial speech enjoys full protection. -Comm. Speech that proposes unlawful activity or is misleading or fraudulent may be burdened. -All other commercial speech regs will be upheld if it passes intermediate scrutiny.
Government regulation of commercial speech must also be.... narrowly tailored.
Defamation--public figures May be burdened. If the PLA is a public figure/official, they may recover if they prove falsity and actual malice by clear and convincing evidence.
Defamation--Private figure and public concern.... see tort law generally.
The government may regulate speech in public forums and designated public forums as to time, place, and manner if.... The regulation is (1) content-neutral and, (2) Are narrowly tailored to sever an important government interest, and (3) leave open alternative forms of communicates. Gov. almost always passes this test.
Privacy restrictions on the freedom of speech..... .....
The gov. can't.... create liability for the truthful reporting of info. that was lawfully obtained....
Liability is not allowed if... the media broadcasts a tape of an illegally intercepted call, if the media did not participate in the illegality and it involves a matter of public concern.
The government in general may... limit the dissemination of information to protect privacy.
Speech by government employees on the job in the performance of their duties.... IS NOT PROTECTED BY THE FIRST AMENDMENT.
What places are available for speech... (1) Public Forums, (2) Designated Public Forums, (3) Limited public Forums. (4) Non-Public Forums.
Public Forums are... government properties that the government is constitut. req. to make available for speech, like parks and sidewalks. -Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met.
Government regulations of public forums... -Need not use the least restrictive alternative and -City officials cannot have discretion to set permit fees for public demonstrations.
Designated Public forums: government properties that the gov. could close to speech, but chooses to open to speech (schools). Same rules as public forums.
Limited Public Forums These are gov. properties that are limited to certain groups or dedicated to the discussion of only some subjects. The gov. may regulate speech here so long as it is (1) reasonable and (2) viewpoint neutral.
Non-public forums -Government properties that the gov. may constitutionally close to speech. The gov. may regulate speech here so long as regulation is reasonable and viewpoint neutral. (military bases, post-offices).
There is no 1st Amendment right of access to .... Private Property for speech purposes.
Freedom of association.... laws that prohibit or punish group membership must meet S.S. And it must be proven that the person: (1) actively affiliated with the group and (2) knowing of its illegal activites; and (3) with specific intent to further those illegal activities.
Laws that require disclosure of group membership.... where such membership 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.
Freedom of Religion... The Free exercise clause may not be used to challenge a neutral law of general applicability...and note a governor cannot deny benefits to individuals who quit their jobs for religious reasons.
The Establishment clause... prohibits laws respecting the establishment of religion..
Sect preference under the establishment clause.... is invalid unless it meets a strict scrutiny is met.
No sect preference (lemon test) If the government action does not involve sect preferences, it is valid if: (1) has secular purpose and (2) has a primary effect that neither advances nor inhibits religion and (3) does not produce excessive gov. entanglement with religion.
Government sponsored religious activity in public schools is... Unconstitutional. But 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 communities. The gov. may provides parents vouchers which they use in parochial schools.
Created by: sachav3