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Constitutional Law, Bill of Rights Analysis Steps - Coggle Diagram

- - - - is the law necessary to achieve a compelling government interest
        
        burden on government
        
        redressing societal racism is not a compelling government interest unless that exact government was discriminating
  - - - is the law substantially related to an important government insterest
        
        burden on government
  - - - is the law rationally related to a legitimate government interest
        
        burden on challenger
        
        law excluding aliens from jury service is rationally related to the state's legitimate interest in ensuring that only citizens perform functions that are central to self-government
        
        rational basis is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for office, or serving on jury
- - - - corporations do not have privileges against self incrimination
- - - - from the Establishment Clause
        
        religion in public schools violates establishment clause
        
        government aid to religious schools is unconstitutional
        
        if a program provides aid to all students including those going to parochial schools then it passes the Lemon Test
      - sect specific laws
        
        strict scrutiny
        
        is the law necessary to achieve a compelling government interest
        
        burden on government
      - general laws
        
        Lemon Test
        
        the statute must have a secular legislative purpose
        
        the principal or primary effect or purpose must neither advance nor inhibit religion
        
        the statute must not foster an excessive government entanglement with religion
        
        holiday displays on government property are generally permissible if they do not favor one religion over another
    - - Free Exercise Clause
        
        the government may not punish an individual by deny them benefits or imposing burdens based on religious belief
  - - - Except
        
        conduct-based regulations
        
        if the regulation creates an incidental burden on 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
        
        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; must be a genuine likelihood of 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)
        
        an average person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient interest
        
        the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law
        
        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
    - - not protected if false or deceptive or if related to an unlawful act
        
        government can regulate if
        
        serves a substantial government interest, directly advances the interest, is not more extensive than is necessary to serve the interest
    - - must be content-neutral as to both the subject manner and view-point
      - regulations must be narrowly tailored to serve a significant government interest
      - regulations leave alternative channels of communication open
  - - - cable tv receives protections somewhere between broadcast tv and newspaper
- - - - Article III
      - Marbury v. Madison
        
        establishes judicial review
    - - case or controversy
        
        real and substantial dispute
        
        legal relations of adverse parties
        
        can be resolved by a judicial decree of a conclusive character
      - mootness
        
        matter has already been resolved
      - ripeness
        
        cannot consider claims before they have fully developed
      - abstention
        
        can refuse to hear a case if there are undecided issues of state law
        
        if the state law issue is resolved, then the court might be unnecessary
      - standing
        
        injury-in-fact
        
        causation
        
        redressability
      - political questions
      - original jurisdiction
        
        ambassadors
        
        public ministers and consuls of foreign countries
        
        when states are party
        
        Congress cannot give the Sup Court original jurisdiction
  - - - international affairs
        
        can deploy military
        
        cannot declare war
        
        can make treaties
        
        need 2/3 Senate approval
        
        president alone has the authority to represent the US in foreign affairs
    - - appointment power
        
        Congress can delegate rule making powers to executive or administrative agencies
        
        except for this, the executive branch cannot generally make laws
    - - has 10 days to veto or "pocket veto"
        
        congress can override veto with 2/3rds
      - cannot line item veto
  - - - implied power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"
        
        legislative
        
        commerce
        
        see dormant commerce clause
        
        taxing
        
        taxes cannot raise revenue
        
        objective test
        
        taxes cannot intent to raise revenue
        
        subjective test
        
        Congress can use taxes to regulate the activity taxed
        
        State taxes cannot discriminate against or unduly burden commerce
        
        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
        
        the tax must be daily related to the serveces provided by the taxing state
        
        spending
        
        war and defense
        
        investigatory
        
        property
        
        eminent domain
        
        admiralty
        
        bankruptcy
        
        postal
        
        copyright and patent
        
        speech and debate
        
        Civil War amendments
- - - - channels of interstate commerce, such as highways, waterways, and air traffic
      - instrumentalities of interstate commerce, such as cars, trucks, ships, and airplanes
      - activities that have "substantial economic effect" upon interstate commerce
      - can regulate private actors
  - - - state must shoe the regulation serves a compelling state interest
        
        regulation is narrowly tailored to serve that interest
    - - state must show that the regulation serves and important state interest
        
        burden on interstate commerce is not excessive in relation to the interest served
- - - - freedom from bodily restraints
      - freedom from physical punishment
      - freedom from commitment to a mental institution
      - notice & hearing required for a government agency to take
    - - public education
      - welfare benefits
      - retention of a drivers license
      - public employment
      - prejudgment garnishment
      - forfieture of property
      - business licensing
  - - - regulations will be upheld if it is rationally related to a legitimate government interest
    - - Fundamental Rights
        
        Right to Privacy (CAMPERS)
        
        Contraceptives
        
        Abortion
        
        Marriage
        
        Procreation
        
        Private Education
        
        Family Relations
        
        Sexual relations
        
        meaning adult private consensual activity
        
        Right to Vote
        
        Right to Travel
        
        no residency requirements for a year or more to get state aid
  - - - can be a private actor acting as a state actor or entanglement
- - - - give the language of the amendment itself
        
        give the court's interpretation of that language