Constitutional Law

Powers

State Action

Dormant Commerce Clause

First Amendment

Due Process (14th Amendment)

Equal Protection

Procedural

Substantive

Legislature

Executive

Judiciary

Article III and Marbury v. Madison, which established judicial review. Under Marbury, the Court held that the Constitution is "law" and the judiciary's province and duty was to declare what the law is

Subject-matter jurisdiction limitations

Ripeness

Abstention

Mootness

Standing

Case or controversy

Political question

A real and substantial dispute that touches the legal relations of a conclusive character. The Court does not give advisory opinions

If the matter has already been resolved

Bars consideration of claims before they have fully developed

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

A person litigating a constitutional question must have standing. T prove standing, the litigant must show injury-in-fact, causation, and redressability

Powers rest in the president as Chief Executive and Commander-in-Chief

Powers extends to international affairs

Appointment power to nominate and appoint ambassadors, justices of the Supreme Court, and all other officers of the United States

Veto power over Congress's legislation.

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

Congress can enact legislation that delegates rulemaking power to an executive or administrative agency in designated area. This is an exception to the general rule that the executive branch does not "make law"

Pardon power

Executive privilege

As Commander-in-Chief, the president has the power to deploy military forces, but does not have the power to declare war

The president has power to make treaties with foreign nations, which require the consent of two-thirds of the Senate before enactment

The power to make laws

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

Eminent domain

Commerce

Admiralty

Legislative

Bankruptcy

Postal

Copyright and patent

Speech and debate

Civil War amendments

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

States may regulate local transactions affecting interstate commerce as long as Congress has not enacted legislation

This state power is subject to limitations known as the Dormant Commerce Clause

If a state law discriminates on its face between in-state and out-of-state economic actors, the state must show that the regulation serves a compelling state interest, and the regulation is narrowly tailored to serve that interest

If the state law merely incidentally burdens interstate commerce, the state must show that the regulation serves an important state interest and the burden on interstate commerce is not excessive in relation to the interest served

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

State taxation of interstate commerce is permissible as long as the tax does not discriminate against or unduly burden interstate commerce

Courts generally require that: (1) there must be a substantial nexus between the activity taxed and the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce: and (4) the tax must be fairly related to the services provided by the taxing state

The Supremacy Clause provides that a federal law will supersede any state law with which it is in direct conflict

Thus, the federal law preempts the state law in an area in which the exercise of federal power is constitutional. For example, Congress passed legislation in the 1960s mandating warnings on cigarette packaging. As a result, states cannot demand different warnings as the federal legislation preempts state legislation

Before analyzing any constitutional violation, you must show that there is government action and not action by a private citizen or entity. This state action requirement refers to actions by either the federal or state government

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

Originally, the Bill of Rights only applied to the federal government. The Court has since interpreted the 14th Amendment to apply the Bill of Rights to states by holding that fundamental rights are not privileges and immunities of national citizenship

For an essay question, always include how an amendment applies to the states through the 14th Amendment

Protects the rights of "persons," not just "citizens." Corporations and aliens are considered "persons," but corporations do not have the privilege against self-incrimination

The 5th and 14th Amendments protect against deprivation of life, liberty, or property without due process of law

Entitled to certain safeguards that include some form of notice and a meaningful hearing within a reasonable time

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

An economic regulation will be upheld if it is rationally related to a legitimate government interest (Rational Basis Test)

When evaluating government regulations that affect fundamental rights of personhood, either strict scrutiny or other forms of heightened scrutiny are used

Fundamental rights

Right to Travel

Right to Privacy (CAMPERS)

Right to Vote

Procreation

Private Education

Marriage

Family Relations

Abortion

Sexual relations (meaning private adult consensual activity

Contraceptives

Uses different standards of review depending on the classification in the statute

Strict scrutiny puts the burden of persuasion on the government to prove that the measure being challenged is necessary to further a compelling government interest

Applies to suspect classifications: race, alienage, and national origin

Intermediate scrutiny also 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

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

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

Freedom of Speech

Freedom of the Press

Freedom of Religion

Freedom of Association

Expression

Establishment

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

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

"Congress shall make no law ... abridging the freedom of speech" The government may not censor all categories of speech or engage in content-based discrimination with some exceptions

These categories of speech are not wholly protected by the First Amendment and thus can be regulated by the government provided they pass strict scrutiny

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

Obscene speech

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

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

Speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"

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

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

Other categories of speech receive lower levels of protection. One example is commercial speech

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

Regulations of time, place, and manner of speech are allowed. These restrictions apply to public areas such as streets, sidewalks, and parks.

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

Bears a close nexus to freedom of speech. State action that may curtail or have the effect of curtailing the freedom to associate is subject to the closest scrutiny

The press has no greater freedom to speak than any ordinary member of the general public.

No special right of access to government information

Both the public and the press have a right to attend criminal trials unless the judge finds an overriding interest that cannot be accommodated by less restrictive means

Gag orders on the press will almost never be held constitutional as the judge has other alternatives

Generally, radio and television broadcasting can be more closely regulated than the press, due to the limited number of airwaves available. Cable television receives First Amendment protection somewhere between broadcast television and newspapers

Constitutional Law Bill of Rights Analysis Steps

  1. Identify the state action
  1. Give the language of the amendment itself
  1. State how the amendment applies to states

5.Give the Court's interpretation of that language

  1. Identify the amendment