Constitutional Law

Equal Protection
Temm 131

Powers
Temm 126-28

State Action
Temm 128-29

Due Process
Temm 129

Executive
POTUS = Chief Executive/Commander-in-Chief
Enforces the law

Legislative
CONGRESS
Creates the law

Judiciary
SCOTUS
Interprets the law

Procedural

  • 5th, 14th Amendments (fed, state)
  • Protects against deprivation of life, liberty, property w/out DP
  • Right to notice, fair and speedy trial

Substantive

  • Laws that affect rights of all persons concerning specific activity
  • Assures fair, reasonable, non-arbitrary laws

Levels of Scrutiny

Intermediate = govt's burden to show substantially related to achieving important gov't interest
Applies to quasi-suspect classes - gender; illegitimacy

Rational basis = plaintiff's burden to show not rationally related to a legitimate gov't interest
Applies where strict or intermediate does not, incl. classes based on age; poverty; wealth; disability; necessities (food, shelter, clothing, medical care)

Strict = govt's burden to show narrowly tailored to achieving compelling gov't interest
Applies to EP-suspect class; DP-fundamental rights; 1st Amendment rights; access to courts

Power derives from Article III and
Marbury v. Madison (judicial review)

Limitations on subject-matter jurisdiction

Mootness = if matter already resolved, will dismiss

Ripeness = if claim has not fully developed, will not consider

Abstention = may refuse to hear a case involving undecided issues of state law

Standing = litigant must show injury-in-fact, causation, redressability

Case or controversy = must be real and substantial legal dispute; conclusively decided

Political questions

Necessary and Proper Clause
Power includes:

  • Legislative
  • Commerce
  • Taxing
  • Spending
  • War and defense
  • Investigatory
  • Property
  • Eminent domain
  • Admiralty
  • Bankruptcy
  • Postal
  • Copyright and patent
  • Speech and debate
  • Civil War amendments

Power includes:

  • International affairs (incl. making treaties with foreign nations, but also need consent of 2/3 Senate)
  • Nominate and appoint ambassadors, Supreme Court justices, other officers
  • Veto Congress's legislation (Congress can override by 2/3 vote both houses)
  • Pardon power
  • Executive privilege
  • Deploy military forces (but not declare war)
  • Congress can delegate rulemaking power to exec/admin agencies via legislation

Commerce Clause
Power to regulate interstate commerce:

  • Channels (e.g. highways, waterways, traffic)
  • Instrumentalities (e.g. cars, trucks, ships, airplanes)
  • Activities that have substantial economic effect (i.e. economic in nature & cumulative effect nationwide is substantial)
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Dormant Commerce Clause
Temm 128

States' power to regulate local transactions affecting interstate commerce where Congress has not enacted legislation

States' power to tax interstate commerce if does not discriminate against or unduly burden:

  • substantial nexus between activity taxed and taxing state
  • fairly apportioned
  • does not discriminate
  • fairly related to services provided by taxing state


  • Congress's exercise of taxing power valid if:
    actually raises revenue (obj std)
    or
    intended to raise revenue (subj std)
  • May be used to regulate so long as Congress has power to regulate taxed activity
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If incidentally burdens interstate commerce, law must serve important state interest and burden must not be excessive

If law discriminates on its face between in-state and out-of-state economic actors, must serve compelling state interest and be narrowly tailored to achieve that interest (strict scrutiny)

Supremacy Clause
Federal law preempts state law (i.e. supersedes when fed and state laws conflict) where exercise of fed power constitutional


Action by fed or state gov't, NOT private citizen or entity (14th, 15th Amendments)


EXCEPT where private entity engaging in activities traditionally/exclusively performed by gov't, or where private entity so closely related to gov't that its action can be treated as action by gov't

Protects rights of persons (not just citizens)

Protects rights of persons (not just citizens)


Includes noncitizens; corporations (but corps not entitled to privilege against self-incrimination)

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Economic Regulations

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Fundamental Rights Regulations

Liberty
Freedom from bodily restraints; physical punishment; commitment to mental institution

Property
Public education; welfare benefits; retention of driver's license; public employment; prejudgment garnishment; forfeiture; business licensing

Life
Capital punishment; abortion; right to die

Right to Travel

Right to Vote

Right to Privacy
"CAMPERS"

Contraceptives

Abortion

Marriage

Procreation

Private Education

Family Relations

Sexual relations
(consensual adult)

Laws that affect rights of some persons concerning specific activity


State statutes only (not federal)


Suspect Classifications
Race, alienage, national origin
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First Amendment
Temm 132-34

U.S. Constitution

  • Supreme law
  • Sets parameters for federalism
  • Authorizes specific powers to each gov't branch

Bill of Rights Analysis
Essay

  1. Identify amendment
  2. How it applies to states
  3. Identify state action
  4. Give language of amendment
  5. Give Court's interpretation of language
    Temm 134

Freedom of the Press

Freedom of Religion

Freedom of Speech

Freedom of Association


Free Exercise Clause
Absolute protection of religious beliefs; gov't may not deny benefits or impose burdens based on them


Establishment Clause
Is the law a sect preference?
If no, Lemon test applies:

  • statute must have secular legislative purpose
  • principle/primary effect or purpose must neither advance nor inhibit religion
  • statute must not foster excessive gov't entanglement in religion


Aid to all students including those attending parochial schools (el/hi) permissible

Holiday displays on gov't property ok if do not favor one religion

No religious activities at public schools


"Close nexus" to speech


  • Same level of freedom as general public
  • No special right of access to gov't info
  • Same right as public to attend criminal trials
  • Gag orders rarely constitutional
  • Radio, tv, broadcasting can be more closely regulated
  • Cable tv between broadcast tv/newspapers


In general:

  • No gov't censorship or content-based discrimination
  • Regulations subject to strict scrutiny


Less than strict scrutiny applies to regulation of:

  • Commercial speech
  • Time, place, and manner of speech
    See Temm for specific rules/tests

Exceptions:

  • Content-based regulations
  • Gov't as speaker
  • Unprotected speech
    • Speech that advocates violence/unlawful action
    • Fighting words
    • Hostile audience speech
    • Obscene speech
    • Defamatory speech
      See Temm for specific rules/tests

MBE Strategies
See Temm 135-37