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Constitutional Law - Coggle Diagram

- - - - Analysis: 1. is the law a sect preference? All sect preference laws are subject to strict scrutiny.
        
        If no sect preference, analyze under *Lemon test:
        The statute must have a secular legislative purpose
        The principal or primary effect or purpose must neither advance nor inhibit religion; and
        The statute must not foster an excessive government entanglement with religion.
      - In general, religious activities at public schools violate the Establishment Clause.
        Most government aid to religious schools is unconstitutional.
        If the program provides aid to all elementary and secondary school students including parochial schools, then the program passes the Lemon test.
        Holiday displays on government property are generally permissible if they do not favor one religion over another.
    - - Free Exercise Clause: religious beliefs are absolutely protected.
        The government may not punish an individual by denying benefits or imposing burdens based on religious belief.
  - - - Exceptions:
        Conduct-based regulations: if the regulation creates an incidental burden on the speech, it is allowed if it furthers an important or substantial government interest unrelated to the suppression of free expression, and the incidental restriction on speech is no greater than is essential to the furtherance of that interest.
        Government as speaker: when the government is the speaker rather than a private actor, the government may discriminate based on the content of the speech.
        Unprotected speech: speech that advocates violence or unlawful action: speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
        Fighting words: words likely to incite acts of immediate physical retaliation that are more than annoying or offensive. There must be a genuine likelihood of imminent violence.
        Hostile audience speech: speech that elicits an immediate violent response against the speaker by an audience may be grounds for prosecution.
        Obscene speech = three part test. 1. an average person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest; 2. the work depicts or describes in a patently offensive way, sexual conduct specifically defined by state law; and 3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
        Defamatory speech = constitutional restrictions on what is considered defamatory speech apply where the plaintiff is either a public official or public figure or where the statement involves a matter of public concern. Then the plaintiff must prove actual malice; that is, knowledge of falsity or reckless disregard of the truth or falsity of the statement.
- - - - Limitations on jurisdiction:
        Case or controversy: a real and substantial dispute that touches the legal relations of parties with adverse interests and that can be resolved by a judicial decree of a conclusive character. The court does not give advisory opinions.
        Mootness: if the matter has already been resolved, it will be dismissed as moot.
        Ripeness: bars consideration of claims before they have fully developed.
        Abstention: the court may abstain or refuse to hear a particular case when there are undecided issues of state law presented. May wait until the state courts resolve the issue of state law first (which may make a decision on the constitutional issue unnecessary).
        Standing: A person litigating a constitutional question must have standing. To prove standing, the litigant must show injury-in-fact, causation, and redressability.
        Political questions: the court can decline to address such questions due to separation of powers principles.
  - - - Appointment power: power to nominate and appoint all ambassadors, justices of the Supreme Court and all other officers of the United States
      - Veto power: can veto Congress's legislation.
        President has 10 days to act upon legislation. If the president fails to act, the proposed legislation becomes law. The president can pocket veto a bill passed within 10 days of the end of the congressional term by not signing it.
        Line item veto has been held unconstitutional.
        Congress may override a veto by 2/3 vote.
        Congress can enact legislation that delegates rulemaking power to an executive or administrative agency in designated areas.
        This is an exception to the general rule that the executive does not make law.
        Pardon power
        Executive privilege
        Can make treaties with foreign nations which require consent of two-thirds of Congress.
  - - - Substantially effects test: Congress must show that the regulated activity is economic in nature and that the regulated activity-when taken cumulatively throughout the nation-has a substantial effect on commerce.
- - - - Protected liberty interests include freedom from bodily restraints, physical punishment, and commitment to a mental institution.
      - Property interests include public education, welfare benefits, retention of driver's license, public employment, prejudgment garnishment, forfeiture of property, and business licensing.
      - Life interests: capital punishment, abortion or right-to-die situations (these fall under other areas of the Constitution)
  - - - Fundamental rights of personhood inquiries require either strict scrutiny or other forms of heightened scrutiny.
        
        Fundamental rights include right to travel, right to vote, and right to privacy.
        
        Privacy rights = CAMPERS
        Contraceptives
        Abortion
        Marriage
        Procreation
        Private Education
        Family Relations
        Sexual relations (private adult consensual activity)
- - - - State taxation of interstate commerce is permissible so long as the tax does not discriminate against or unduly burden interstate commerce. Courts generally require that:
        there must be a substantial nexus between the activity taxed and the taxing state; the tax must be fairly apportioned; the tax must not discriminate against interstate commerce; and the tax must be fairly related to the services provided by the taxing state.
- - - - Strict scrutiny: puts the burden of persuasion on the government to prove that the measure being challenged is necessary to further a compelling governmental interest. In the equal protection context, strict scrutiny applies to suspect classifications--race, alienage, and national origin.
        In other contexts, strict scrutiny applies to the deprivation of fundamental rights, First Amendment rights, and access to courts.
      - Intermediate scrutiny: places the burden of persuasion on the government to prove that the measure being challenged is substantially related to the achievement of an important governmental interest.
        "Substantially related" means an exceedingly persuasive justification must be shown. Intermediate scrutiny applies to quasi-suspect classifications (gender and illegitimacy)
      - Rational basis scrutiny: places the burden of persuasion on the plaintiff. The plaintiff must show that the measure being challenged serves no legitimate government interest or is not rationally related to any legitimate interest.
        Rational relationship means that the law cannot be arbitrary or unreasonable. Rational basis review applies to all classifications not falling under strict or intermediate scrutiny including classifications based on age, poverty, wealth, disability, and the need for necessities of life such as food, shelter, clothing and medical care.
        Rational basis is a lower hurdle and it is rare for a regulation not to meet rational basis scrutiny.