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Constitutional Law - Coggle Diagram

- - - - 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
      - 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"
      - 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
      - Government as speaker: when the government is the speaker rather than a private actor, the government may discriminate based on content of the speech
      - 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 the falsity or reckless disregard of the truth or falsity of the statement
      - Conduct-based regulation: 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
    - - Still highly protected, but not protected if false or deceptive or if related to unlawful activity. The government can regulate the speech only if the regulation: serves a substantial government interest; directly advances the substantial government interest; and is not more extensive than is necessary to serve that interest
      - Sexual speech: regulation must serve a substantial government interest and leave open reasonable alternative channels of communication
    - - Three part test used to determine the constitutionality of such restrictions: (1) regulation must be content-neutral as to both subject matter and viewpoint; (2) regulation must be narrowly tailored to serve a significant government interest; and (3) regulation leaves alternative channels of communication open
  - - - Under the Free Exercise Clause of the First Amendment, religious beliefs are absolutely protected. The government may not punish an individual by denying benefits or imposing burdens based on religious belief
    - - When analyzing an establishment clause issue, the first step is whether the law is a sect preference. All sect preference laws are subject to strict scrutiny analysis
        
        If there is no explicit sect preference, then the Court analyzes the legislation or government program under the Lemon test: (1) the statute must have a secular legislative purpose; (2) the principal or primary effect or purpose must neither advance nor inhibit religion; and (3) the statute must not foster an excessive government entanglement with religion
      - As a general rule, 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 those attending parochial schools, however, then the program "passes" the Lemon test
      - Holiday displays on government property are generally permissible if they do not favor one religion over another
- - - - Incidental to this power is the right to conduct investigations and hearings, consider matters upon which legislation may be enacted and do all other things "necessary and proper" to the enacting of legislation
      - The Necessary and Proper Clause gives Congress the implied power to "make all Laws which shall be necessary and proper for carrying into Execution the forgoing powers...:
      - Specific powers
        
        War and defense
        
        Investigatory
        
        Spending
        
        Property
        
        Taxing
        
        Power to lay and collect taxes, duties, imposts, and excises
        
        A congressional act purporting to be a tax should be upheld as a valid exercise of the taxing power provided that it does, in fact, raise revenue--an objective standard--or that it was intended to raise revenue--a subjective standard
        
        Congress can use its taxing power to achieve a regulatory effect as long as Congress has the power to regulate the activity taxed
        
        Eminent domain
        
        Commerce
        
        Commerce Clause: Gives Congress the power to regulate channels of interstate commerce, such as highways, waterways, and traffic; instrumentalities of interstate commerce, such as cars, trucks, ships, and airplanes; and activities that have a "substantial economic effect" upon interstate commerce
        
        Substantial Economic 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
        
        Admiralty
        
        Legislative
        
        Bankruptcy
        
        Postal
        
        Copyright and patent
        
        Speech and debate
        
        Civil War amendments
  - - - The president has power to make treaties with foreign nations, which require the consent of two-thirds of the Senate before enactment
    - - The 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
      - Congress can override a veto by a two-thirds vote of both houses of Congress
      - A line-item veto is unconstitutional. Only Congress has the power to amend legislation to delete provisions
  - - - 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 first, perhaps making a decision on the constitutional issue unnecessary
      - Mootness
        
        If the matter has already been resolved
      - Standing
        
        A person litigating a constitutional question must have standing. T prove standing, the litigant must show injury-in-fact, causation, and redressability
      - Case or controversy
        
        A real and substantial dispute that touches the legal relations of a conclusive character. The Court does not give advisory opinions
      - Political question
- - - - Liberty: Protected liberty interests include freedom from bodily restraints, physical punishment, and commitment to a mental institution
      - Property: Protected property interests include public education, welfare benefits, retention of driver's license, public employment, prejudgment garnishment, forfeiture of property, and business licensing
      - Life: capital punishment, abortion, right-to-die situation
  - - - Fundamental rights
        
        Right to Travel
        
        Right to Privacy (CAMPERS)
        
        Procreation
        
        Private Education
        
        Marriage
        
        Family Relations
        
        Abortion
        
        Sexual relations (meaning private adult consensual activity
        
        Contraceptives
        
        Right to Vote
- - - - This requirement is based on the 14th and 15th Amendments. Thus, analyzing whether a state action exists is the first step for both MBE and essay questions
      - Private actors may be found to be state actors when the private entity is carrying on activities traditionally and exclusively performed by the government or where the government and private entity are so closely related that the action by the private party fairly can be treated as action by the government
    - - For an essay question, always include how an amendment applies to the states through the 14th Amendment
- - - - Applies to suspect classifications: race, alienage, and national origin
    - - Applies to quasi-suspect classifications: gender and illegitimacy
    - - 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
      - This is a more deferential standard. Rarely does a regulation not meet rational basis scrutiny