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Con Law, Bill of Rights Analysis Steps - Coggle Diagram
Con Law
State Action
Supremacy Clause: Federal law trumps state law that directly addresses the same issues
Action by a government official, on behalf of the gov
Refers to action by state or federal official
Private actor can be considered state actor when the priv entity carries on activities traditionally and exclusively performed by the gov or where gov and private entity are so closely related that action by private entity can be considered gov action
Fourteenth amendment applies the Bill of Rights to the states
Dormant Commerce Clause
States may regulate local transactions affecting interstate commerce (as long as not preempted by fed law)
If state law discriminates on its face between in and out of state economic actors, state must show that the reg serves a compelling state interest and is narrowly tailored to serve that interest
If merely incidental discrimination: state must show reg serves important state interest and burden int. comm. is not excessive in relation to the interest served
State taxation of interstate commerce req's:
Tax is fairly apportioned
Tax must not discriminate against interstate comm
Tax must be fairly related to services provided by taxing state
Substantial nexus btw activity taxed and taxing state
First Amendment
Freedom of association
SS for any state action that may curtail or have effect of curtailing freedom to associate
Freedom of the press
Gag orders on press almost never ok if other options available
Press has no more / less right to info or speech then others
Freedom of Speech
Gov may not censor all speech or engage in content-based discrim. Speech that can be regulated if reg passes strict scrutiny:
Gov as speaker: when speaking as gov, may discrim. based on content of the speech
Speech advocating violence/unlawful action (directed to inciting or producing imminent lawless action & likely to produce such)
Content-based reg: incidental burden on speech is ok if it furthers an
important or substantial
gov interest unrelated to suppression of speech. Incidental restriction < essential to furthering that interest
Fighting words (likely to incite acts of immediate physical violence, that are more than annoying/offensive; must be genuine likelihood of imminent violence)
Hostile audience speech: speech that illicit immediate violent response against the speaker by an audience
Obscene speech: 3-part test
avg person w contemporary community standards would find that the work as a whole appeals to a prurient interest
work depicts/describes, in a patently offensive way, sexual conduct specificallydefined by state law, and
work as a whole lacks serious literary, artistic, political, or scientific value
Defamatory: restrictions on what is defamatory when P is public official or figure or where statement involves a matter of public concern. Then P must prove actual malice (knowledge of falsity or reckless disregard of truth of falsity)
Commercial speech: lower scrutiny than strict
Not protected if false/deceptive or related to illegal acts. Gov can regulate if the reg: serves substantial gov interest; directly advances the gov interest; is no more extensive than necessary.
Regulation of time, place, manner of speech. 3-part test:
Reg must be narrowly tailored to serve
significant
gov interest
Reg leaves alt channels of communication open
Reg must be content-neutral to subj. matter & viewpoint
Freedom or Religion
Establishment
Explicit sect preference = subject to strict scrutiny
If no sect preference then
Lemon
test:
Statute has a secular purpose
Principal or primary effect/purpose must neither advance nor inhibit religion
Statute must not foster excessive gov. entanglement w religion
religion in school generally not ok; funds ok to religious schools only if same funds go to
all
schools (secular&religious)
Expression
Gov can't impose burdens or deny benefits based on religion
Equal Protection
Apply when large groups affected (as opposed to an individual). Often a statute is involved
Strict scrutiny: burden on persuasion on gov to prove challenged measure is
necessary
to further a
compelling
gov interest
For EPC: to suspect classes -- race, alienage, nat'l origin
Intermediate scrutiny: burden on gov to prove measure is
substantially
related to an
important
gov interest
Applies to gender and illigitimacy
Rational basis: burden of persuasion on plaintiff to show measure serves no legit gov. interest or is not rationally related to any legit interest
All other classes (age, poverty/wealth, disability) and needs like food, shelter, clothing, medical care
Powers
Judicial Branch
Limits on jurisdiction:
Ripeness: Injury must be imminent or already happened
Abstention: Courts can decline to hear the case if there are unresolved issues of state law involved
Mootness: Issue cannot already be resolved
Standing: must be injury in fact, causation, repressibility
Case or controversy: must be a real and substantial dispute that touches the legal relations of parties with adverse interests and which can be resolved with judicial decree
Political Question: no advisory opinions
Executive Branch
Appointment: president nominates/appoints ambassadors, SCOTUS justices, all other officers of USA
Veto power of Congressional legislation (w/in 10 days): can be overridden by 2/3 of both houses of Congress
Rulemaking power: Congress can grant power to agencies in exec branch to make specific rules to achieve specific goals
Others: pardon power, executive privilege, deploy troops but
not
declare war, make treaties but not w/out 2/3 approval of Senate
Legislative
All things "necessary and proper" to enacting legislation
Specific powers: legislative, commerce, taxing/spending, war/defense, investigatory, property/eminent domain, admiralty, bankruptcy, postal, IP, speech and debate
Taxation: act purported to be a tax must actually or be intended to raise revenue. Can be used for reg. purposes if Congress otherwise has the power to regulate that area
Due Process: Fourteenth Amendment
Procedural
Liberty interests = freedom from:
Physical punishment
Commitment to mental institution
Bodily restraints
Property interests = freedom from:
driver's license
public employment
public education & welfare benefits
prejudgment garnishment & forfeiture of property
business licensing
Substantive
Rational basis: rationally related to legit gov interest
Economic regulations
Strict scrutiny (ot other heightened review)
Fundamental rights: right to travel, vote, privacy
Privacy rights: Contraceptives, abortion, marriage, procreation, private education, family relations, sexual relations
Apply when a specific person & activity are implicated (as opposed to whole groups affected)
Bill of Rights Analysis Steps
Identify amendment implicated
State how the amendment applies to states (Fourteenth Amendment)
Identify the state action
Give the language of the amendment itself
Give court's interpretation of that language