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Con Law - Coggle Diagram
Con Law
Commerce Clause
dormant commerce clause--allows states to regulate local transactions as long as congress has not enacted legislation
substantially effective test--congress must show that the regulated activity is economic in nature and the regulated activity has a substantial effect on commerce
gives congress the power to regulate:
instrumentalities of interstate commerce (trucks)
activities that have substantial economic effect on interstate commerce
channels of interstate commerce (highway)
if a state law discriminates between instate and out of state, state must show that the regulation is narrowly tailored to serve that interest
congress has power to collect taxes, duty, imports, excises. a congressional act purporting a tax should be upheld as a valid exercise of taxing power
in reviewing state tax courts generally require that: there must be a substantial nexus between activity taxed and taxing state, the tax must be fairly apportioned, tax must not discriminate between interstate commerce, tax must be fairly related to the services provided by the taxing state
first amendment
association
state action may curtail the freedom to associate is subject to the closest scrutiny
speech
gov cannot censor all categories of speech or engage in content based discrimination. Regulations are allowed if they pass strict scrutiny
conduct based regulation: if the reg creates an incidental burden on speech, it is allowed if it furthers an imt or substantial gov interest unrelated to to suppression of free speech
gov as speaker: the gov can discriminate on the content of speech
unprotected speech: speech that advocates violence or unlawful action, fighting words, hostile audience speech (elicits violence against speaker), obscene speech test: an avg person apply contemporary standards would find the work, taken as a whole, offensive, the work describes sexual conduct in an offensive way, the work taken as a whole lacks serious literary, artisitic, political or scientific value; defamatory speech--where the P is either a public official or public figure where a statement invovles a matter of public concern
speech that has a lower level of protection: commercial speech: still protected but not if false or deceptive or related to unlawful activity. Gov can only regulate speech if the reg: seves a sub gov interest, directly advances the sub gov interest, is not more extensive than necessary, sexual speech
time place and manner can be restricted: reg must be content neutral, both to SM and viewpoint, reg must be narrowly tailored to serve a sign. gov interest, reg leaves alternative channels of open communication
religion
establishment
is the law a sect preference. All preference laws are subject to strict scrutiny
if there is no explicit sect preference, use the lemon test: the statute must have a secular legislative purpose, the principal or primary effect or purpose must neither advance not inhibit religion, the statute must not foster an excessive gov entanglement with religion
expression
religious beliefs are aboslutely protected
press
press has no greater freedom to speak than any ordinary member of the public
TV and radio can be more closely regulated
gag orders on press will almost never be constitutional, both public and press have right to attend criminal trial
Amendment essay analysis
identify the amendement 2. state how amendment applies 3. identify state action 4. give lang of amendment itself 5. give the court's interpretation of that language
Powers
executive
nominate and appoint ambassadors, justices of SC, and other officers of US, veto power over legislation
pardon power, executive privilege, power to deploy military forces but not power to declare war, power to make treaties with foreign nations but requires 2/3 vote of senate
legislative
congress has power to override veto by 2/3 vote. a line item veto has been held to be unconstitutional. Only congress has the power to amend legislations to delete provisions
congress and enact legislation that delegates rulemaking power to t executive or administrative agency
right to conduct investigations, hearings, consider matters upon which legislation may be enacted, and do all things necessary and proper to the enacting of legislation
legislative, commerce, taxing, spending, war and defense, investigatory, property, eminent domain, admiralty, bankruptcy postal, copyright and patent, speech and debate, civil war amendments
Judicial
judicial review--article III, marbury v madison--constitution is law and the judiciary duty is to declare wha the law is
limits on J
mootness--if the matter has already been resolved
ripeness--bars consideration before they ahve fully devleoped
case or controversy--a real and substantial dispute that touches the legal relations of parties with adverse interests and that can be resolved by judicial decree of a conclusive character
absentation--where there are undecided issues of state law presented
standing--must have standing--must how injury in fact, causation, and redressability
political questions
equal protection
immediate scrutiny
places burden on gov to show that measure being challenged is substantially related to the achievement of an important gov interest--substantially related means an exceedingly persuasive justification must be shown--gender and illegitimacy
rational basis scrutiny
places burden on P. P must show that the measure being challenged serves no legit gov interest--law cannot be arbitrary or unreasonable--age, poverty, wealth, disability, life necessities
strict scrutiny
puts burden of persuasion on the gov to prove the measure being challenged is necessary to further a compelling gov interest--race, alienage, national origin, deprivation of fundamental rights, first amendment rights, and access to courts
due process
Procedural
individual gets some kind of notice and meaningful hearing within a reasonable time
protected liberty interests: freedom from bodily restraint, physical punishment and confinment to mental institution
protected property interests: public education, welfare benefits, retention of drivers license, public employment, prejudgment garnishment, foreiture of property, and business licensing
substantive
economic regulation will be upheld if it rationally relates to a gov interest
when evaluating gov regulations that effect fundamental rights, either strict scrutiny or a heightened scrutiny are used. Fundamental rights are: right to travel, vote, privacy. Privacy rights are CAMPERS--contraceptives, abortion, marriage, procreation, private education, family relations, sexual relations
use substantive due process review when the law affects the rights of all persons with respect to the specific activity. use EPC when a law affects the rights of some persons with respect to a specific activity
State action
state action requirement--must be a government action and not by private citizen (analyzing whether state action exists is the first step)