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Constitutional Law (IV. Individual Rights (F. First Amendment Freedoms…

- - - - a. Fundamental Rights
      - b. Other Rights and Interests
  - - - d. Regulation of Commercial Speech
      - e. Regulation of, or Impositions Upon, Public School Students, Public Employment, Licenses, or Benefits Based Upon Exercise of Expressive or Associational Rights
      - c. Regulation of Unprotected Expression
      - f. Regulation of Expressive Conduct
      - b. Content-Neutral Regulation of Protected Expression
      - g. Prior Restraint, Vagueness, and Overbreadth
      - a. Content-Based Regulation of Protection Expression
    - - b. Establishment
      - a. Free Exercise
- - - - The enabling clause of the Thirteenth Amendment gives Congress the power to adopt
        appropriate legislation, and the Supreme Court apparently will uphold legislation
        proscribing almost any private racially discriminatory act that can be characterized as a
        “badge or incident of slavery.”
    - - Eleventh Amendment: The Eleventh Amendment is a jurisdictional bar that modifies the judicial power by prohibiting
        a federal court from hearing a private party’s or foreign government’s claims against a
        state government.
      - State Sovereign Immunity: The Court has also held that the following are barred by the doctrine of sovereign
        immunity:
        a) Suits against a state government in state court, even on federal claims, without the defendant state’s consent [Alden v. Maine, 527 U.S. 706 (1999)—provision in federal Fair Labor Standards Act creating a private cause of action in state courts against state employers who violate the Act violates sovereign immunity]; and
        b) Adjudicative actions against states and state agencies before federal administrative agencies [Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002)].
  - - - The Supreme Court will hear a case from a state court only if the state court judgment
        turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and
        independent nonfederal grounds to support the state decision.
        a. “Adequate”
        The nonfederal grounds must be “adequate” in that they are fully dispositive of the
        case, so that even if the federal grounds are wrongly decided, it would not affect
        the outcome of the case. Where that is the case, the Supreme Court’s review of the
        federal law grounds for the state court’s decision would have no effect on the judgment
        rendered by the state court, so that the Supreme Court, in effect, would be rendering an
        advisory opinion.
        b. “Independent”
        The nonfederal grounds must also be “independent”: If the state court’s interpretation
        of its state provision was based on federal case law interpreting an identical federal
        provision, the state law grounds for the decision are not independent.
        c. Where Basis Is Unclear
        If it is unclear whether the state court decision turned on federal or state law, the
        Supreme Court may dismiss the case or remand it to the state court for clarification.
        However, the Court will usually assume that there is no adequate state ground unless
        the state court expressly stated that its decision rests on state law.
    - - Political Question
        The Court will not decide political questions.
        a. Definition
        Political questions are:
        (i) Those issues committed by the Constitution to another branch of government; or (ii) Those inherently incapable of resolution and enforcement by the judicial process.
        Examples: Political questions include:
        1) Questions regarding the conduct of foreign relations or issues as to when hostilities have stopped;
        2) Questions relating to which group of delegates should be seated at the Democratic National Convention [O’Brien v. Brown, 409 U.S. 1 (1972)];
        3) The procedures used by the Senate to “try” impeachments (e.g., the Court refused to rule on the constitutionality of the Senate’s delegation of the duty to take evidence and testimony to a committee of senators prior to the Senate deciding whether to vote for conviction on an impeachment of a federal judge) [Nixon v. United States, 506 U.S. 224 (1993)];
        4) What constitutes a “republican form of government” guaranteed to the state by Article IV, Section 4 [Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912)];
        5) Whether the number of votes a candidate for Congress received is sufficient to elect him [Roudebush v. Hartke, 405 U.S. 15 (1972)]; and
        6) Questions regarding partisan legislative reapportionment (i.e., partisan gerrymandering)—these are effectively nonjusticiable [see League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006)].
        b. Compare—“Nonpolitical Controversy”
        Presidential papers and communications are generally considered to be privileged and protected against disclosure in the exercise of the executive power. But where these
        documents are necessary to the continuation of criminal proceedings, the question of production is justiciable and not political. [United States v. Nixon, 418 U.S. 683 (1974)]
    - - Ripeness-Immediate Threat of Harm:
        A plaintiff generally is not entitled to review of a state law before it is enforced (i.e., may not
        obtain a declaratory judgment). Thus, a federal court will not hear a case unless the plaintiff
        has been harmed or there is an immediate threat of harm.
      - Mootness:
        A federal court will not hear a case that has become moot; a real, live controversy must
        exist at all stages of review, not merely when the complaint is filed. [See, e.g., De Funis v.
        Odegaard, 416 U.S. 312 (1974)—dismissing as moot a white law student’s challenge to state’s
        affirmative action program, since the student, although originally passed over for minority
        applicants with allegedly poorer records, had been admitted to law school while litigation
        was pending, was about to graduate by the time the case reached the Supreme Court, and
        would receive the same law degree whether or not the affirmative action program was invalidated]
      - No Advisory Opinions:
        The Supreme Court’s interpretation of the “case and controversy” requirement in Article III
        bars rendition of “advisory” opinions. Thus, federal courts will not render decisions in moot
        cases, collusive suits, or cases involving challenges to governmental legislation or policy
        whose enforcement is neither actual nor threatened.
      - Standing:
        The Supreme Court will not decide a constitutional challenge to a government action unless
        the person who is challenging the government action has “standing” to raise the constitutional
        issue. A person has standing only if she can demonstrate a concrete stake in the
        outcome of the controversy.