Con Law

Front 1

Federal Judicial Power - Justiciability Doctrines - Standing

Back 1

o whether P is proper party to bring case to court - 4 components:
 Injury:
 P must present only personally suffered injuries—generalized interest (mere ideological objection) insufficient
 For injunctive or declaratory relief, P must show likelihood of future harm
 Economic loss is usually best answer on exam
 Causation and redressability:
 Court decision must be likely to remedy the injury
 No advisory opinions—ruling must have some effect
 Best way to show remedy is to show that D caused harm
 No 3rd party standing:
 P cannot present claims of others before the court—MUST present personally suffered injuries
 3 Exceptions: BUT only if meet other standing requirements
• 1. Close relationship between P and injured 3rd party such that P can adequately represent interests of 3rd party (doctor-patient; custodial parent-child);
• 2. 3rd party is unable to assert his own rights, and P can represent the claims of 3rd party if there is reason to believe the 3rd party can’t come to court (jurors-criminal defendant)
o BUT P and 3rd party have to meet all the other standing requirements
• 3. Organizational standing: sue on behalf of members if:
o Individual members have standing to sue
o Their interests are germane to the organization’s purpose
o The claim and relief requested cannot require the participation of the individuals
 No generalized grievances:
 No citizen/taxpayer standing—cannot get into court solely as a interested citizen
 Exception: citizens can challenge govt. expenditures pursuant to statutes that violate the establishment clause
• i.e. statute gives aid to parochial schools
• b/c establishment clause meant as spending limit on congress

Front 2

Federal Judicial Power - Justiciability Doctrines - Ripeness

Back 2

o (whether federal court may grant pre-enforcement review of a regulation or statute) - 2 requirements (FDA)
 Hardship: P must show that he will suffer some hardship w/o pre-enforcement review
 Fitness: issues in the record must be fit for judicial review
 Court must have sufficient facts in record to answer the legal question
 Will court be able to better render judgment after prosecution? If yesnot ripe
 If case is pure question of lawno need for facts

Front 3

Federal Judicial Power - Justiciability Doctrines - Mootness

Back 3

 Controversy must be live—if events that precipitated lawsuit ends, the action is dismissed
 Non-frivolous money damages claim will keep claim alive
 NO advisory opinions issuances
 3 Exceptions:
 1. Wrongs capable of repetition but evading review:
• i.e. access to abortion—continuous wrong and 9 months is shorter than the amount of time it takes to go through court system
 2. Voluntary cessation does not insulate from review: if D voluntarily halts the practice being challenged, but is free to resume it at any time
• i.e. discriminatory hiring
 3. Class action exception:
• If P’s claim becomes moot, the class action will not be dismissed, as long as one member of the class has an ongoing injury

Front 4

Federal Judicial Power - Justiciability Doctrines - Political Question Doctrine

Back 4

 Allegations of constitutional violations that federal courts will not adjudicate
 Examples:
 Cases under Constitution Article IV—Republican form of government (representative) clause
 Challenges to the President’s conduct of foreign policy, especially president’s use of military
 Challenges to impeachment and removal process
 Challenges to partisan gerrymandering

Front 5

Federal Judicial Power - Supreme Court Review - 3 Ways to Get to SCOTUS

Back 5

 Writ of certiorari:
 All cases from state supreme courts and federal COA reach SCOTUS through cert.
 Review of 3-judge federal district courts:
 Where statute provides for SCOTUS review by appeal
 Key statute: Voting Rights Act contains provision
 Original and exclusive jurisdiction:
 Suits between state governments

Front 6

Federal Judicial Power - Supreme Court Review - Final Judgment Rule

Back 6

o no interlocutory reviews
 Court will hear case only AFTER a final judgment from:
 State high courts
 Federal COA
 3-judge district court panels

Front 7

Federal Judicial Power - Supreme Court Review - Adequate & Independent State Law Grounds

Back 7

 If state court decision rests on 2 grounds—1 federal and 1 state—SCOTUS will not hear the case unless reversing federal law ground will change the result (cop victim)
 If there is adequate state law ground to support the result, SCOTUS will have done useless work

Front 8

Federal Judicial Power - Lower Federal Court Review

Back 8

even when all justiciability grounds are met, 2 circumstances where courts still will not hear the case

Front 9

Federal Judicial Power - Lower Federal Court Review - Sovereign Immunity

Back 9

 11th amendment bars suits against states in fed courts
 BUT not cities or other subdivisions of the state
 5 Exceptions:
 1. Waiver: must be explicit; no implied waiver
 2. Federal statutes adopted by Congress: if statute passed pursuant to Section 5 of 14th Amendment
• BUT Congress CANNOT override sovereign immunity using any other power
 3. Federal govt can sue state govts:
 4. Does not apply in Bankruptcy proceedings:
 5. Money damages and injunctive relief: state officers can be sued for money damages and injunctive relief in their official capacity
• BUT officers cannot be used if state treasury will be liable for retroactive damages

Front 10

Federal Judicial Power - Lower Federal Court Review - Abstention

Back 10

 Fed courts do not enjoin pending state court proceedings of federal issues
 Fed courts will wait for state courts to resolve first

Front 11

Federal Legislative Power - No General Federal Police Power

Back 11

o Congress may act only if there is express or implied authority
 State and local governments have the police power
o 4 Exceptions where congress has police power in legislating:
 1. Military
 2. Indian reservations
 3. Federal lands and territories
 4. Washington D.C.

Front 12

Federal Legislative Power - Taxing and Spending and the Commerce Clause

Back 12

o Congress can tax and spend for the general welfare—can adopt any tax to raise revenue or spend $ for any program it has power to adopt; BUT
 Tax as to have reasonable relationship for revenue production; AND
 Spending has to have a public purpose
o Congress has the power to regulate interstate commerce w/
 Foreign nations;
 Indian tribes; AND
 Among the several states:
 Channels of commerce: highways, internet, etc.
 Instrumentalities of commerce: people and things
 Activities w/ a substantial effect on interstate commerce:
• Can regulate activities wholly w/in a state
• If regulation is of economic activity presumed to have substantial effect
• Non-economic activity will not be upheld unless congress has good evidence of impact
• Aggregation principle: economic activity can be aggregated (growing crops)

Front 13

Federal Legislative Power - Section 5 of the 14th Amendment

Back 13

o INTERACTION W/ SECTION 1 OF 14TH A:
 Under Sec. 5, Congress has the power to pass laws to enforce Sec. 1 of the 14th A.
 Congress cannot create new rights or expand scope of rights protected under Sec. 1
 Congress can only act to prevent violation of rights
 Fed. Laws passed pursuant to Sec. 5 will be upheld if they are CONGRUENT and PROPORTIONAL to preventing or remedying violations of 14th A.

Front 14

Federal Legislative Power - Necessary and Proper Clause

Back 14

o Congress can do whatever is necessary and proper to effectuate its powers
o Congress can choose any means not prohibited to it to carry out its authority
 N&PC MUST operate in conjunction w/ another power

Front 15

Federal Legislative Power - 10th A. Restraint on Congress’ Power

Back 15

o Provides that all powers not granted to the fed govt nor prohibited to the states are reserved to the states/people
 Congress CANNOT compel or commandeer state legislative or regulatory activity—cannot do a state’s job
 Can’t force states to enact laws to accomplish congressional policies/objectives
 Congress CAN induce states to act by attaching strings to grants as long as 2 conditions are met:
 Conditions must be clear
 Conditions must be related to the purpose of the federal program
 Congress may PROHIBIT harmful state activity b/c doing so does not impose affirmative burdens on states (selling DMV lists)

Front 16

Federal Legislative Power - Delegation of the Legislative Power

Back 16

o Congress CANNOT delegate executive power to itself or its officers
o No significant limit exists on congress’ authority to delegate legislative powers to administrative agencies
 A delegation of legislative power must be accompanied by intelligible principles
 BUT since 1937, no fed laws have been deemed excess delegation
o Legislative vetoes: NO
 Statutory provision that permits one branch of congress to overturn executive action
 Legislative vetoes are unconstitutional b/c there is no bicameralism or presentment to president
o Line item vetoes: NO

Front 17

Federal Executive Power - Foreign Affairs - The Treaty Power

Back 17

 Treaties are entered into by president and must be approved by 2/3 of the senate
 Treaties are equal to statutes if treaty is self-executing
 When a treaty and statute conflict, the last in time wins
 Treaties that conflict with constitutional are BAD
 State laws that conflict with treaties are BAD

Front 18

Federal Executive Power - Foreign Affairs - Executive Agreements

Back 18

 Agreements between the executive and the heads of foreign nations
 No senate approval required—effective when both parties sign
 Anything that can be done by a treaty can be done by an executive agreement
 Executive agreements prevail over conflicting state law, BUT not over conflicting federal laws or constitution

Front 19

Federal Executive Power - Foreign Affairs - Commander in Chief Power

Back 19

 President can send troops where he wishes
 Congress can refuse to appropriate $ and can fight the president’s decision in the political arena
 Supreme court has never declared the use of troops unconstitutional, even when congress has not formally declared war.
 Even when president vetoes legislation requiring him to remove troops an congress overrides veto: court will not adjudicate b/c of political question

Front 20

Federal Executive Power - Domestic Affairs - Veto Power

Back 20

 President has power to veto legislation, but line item vetoes are unconstitutional

Front 21

Federal Executive Power - Domestic Affairs - Appointment and Removal Power

Back 21

 President appoints ambassadors, federal judges, and officers of the U.S., subject to Senate confirmation
 Congress may vest the power to appoint inferior officers in the heads of departments and lower federal courts
 SCOTUS has never clearly defined officer v. inferior officers
 Inferior officers are those who can be fired by officers of the U.S.
 Congress cannot give itself power to appoint inferior officers b/c this would be giving itself executive power
 Congress can hire and fire its own staff
 If a person makes a decision on behalf of U.S., the person is an executive officer and must be hired/fired w/in the executive branch
 President can fire any executive official unless there is a statute limiting removal
 Congress may limit removal if:
• Independence is desired; AND
• Must permit removal for cause
 Congress cannot prohibit ALL removal (e.g., cabinet member)

Front 22

Federal Executive Power - Domestic Affairs - Executive Privilege

Back 22

 Protects papers and conversations w/ advisors
 BUT privilege must yield to overriding needs in criminal cases to ensure a fair trial
 These issues are resolved by balancing:
 President’s interest in maintaining privilege, w/
 Congress’ interest in disclosure

Front 23

Federal Executive Power - Domestic Affairs - Pardon Power

Back 23

 President has power to pardon all accused or convicted of federal crimes, not state crimes, even if the president claims a federal issue is involved
 Exception: president CANNOT pardon someone who has been impeached

Front 24

Federal Executive Power - Domestic Affairs - Removal, Impeachment, and Liability

Back 24

 Removal:
 All officers can be removed for treason, bribery, and high crimes and misdemeanors (politically defined term, no legal definition)
• House possesses power, and will issue a bill of impeachment
• Impeachment does not remove person from office
• After impeachment, senate holds trial, and person is removed only if 2/3 convicted
 Impeachment:
 If president is engaged in civil rights violations or criminal conduct
 Liability:
 President has absolute immunity for damages against civil suits for acts done by the president in the course of his official duties
 President may be sued when he is out of office
 President has no immunity for acts that occurred prior to his becoming president and can be used while in office

Front 25

Federalism - Supremacy Clause

Back 25

o Establishes that the constitution, laws, and treaties of the U.S. are the supreme law of the land
o Valid federal law overrides inconsistent state law

Front 26

Federalism - Vertical Federalism - Preemption

Back 26

 Express preemption:
 If a federal statute explicitly says that states cannot regulate, state/local laws are preempted
 Any time congress has authority to act, congress can provide that federal laws are exclusive
 Implied preemption/Conflict preemption: when fed & state laws are in conflict or mutually exclusive; 3 types:
 Impossibility preemption: when state & federal laws cannot both be enforced and complied with
 Obstacle preemption: if state & local laws impedes objectives of federal government
• Federal laws as floors, not ceilings
 Field preemption: congress can preempt an entire field of regulation if congress shows intent to preempt all state laws in a given field, i.e. immigration

Front 27

Federalism - Vertical Federalism - State’s Power to Tax or Regulate the Federal Gov’t

Back 27

 States cannot tax the fed govt. w/o fed consent, but they may impose non-discriminatory taxes on persons or businesses who work for or w/ the fed govt.
 i.e. private store on fed land is OK to tax
 rules benefiting state judges OK if fed judges receive the same exception
 States cannot directly regulate fed entities w/o fed consent
 States have no power over foreign affairs

Front 28

Federalism - Horizontal Federalism - Privileges and Immunities

Back 28

 Article IV establishes that no state may deprive citizens of other states of P&I that it accords its own citizens
 Limits state’s ability to discriminate against out-of-staters
 If a local and/or state govt. discriminates against out-of-staters WRT civil liberties OR the ability to earn a livelihood, the state law violates Article IV, unless it is necessary to achieve an important govt. purpose
 BUT OK to discriminate on hobbies (elk hunting)
 To show that discrimination necessary to achieve an important govt. purpose, the state must show
 Substantial interest in adopting legislation AND
 No less discriminatory alternatives can achieve the state’s objective
 Corporations and aliens CANNOT invoke this, ONLY individuals can

Front 29

Federalism - Horizontal Federalism - Dormant Commerce Clause

Back 29

o when states can regulate commerce in the absence of federal action
 States CANNOT discriminate against out-of-state interests—BUT applies to commercial interests, and not just individuals like P&I
 Can require license, but can’t discriminate
 Exceptions:
 If public health and safety require it, i.e. inspect produce
 Subsidies: when state hands out money, it can require recipients to reside in the state
 Market participant: when state acts as buyer or seller of goods, it can discriminate in favor of in-state businesses
 Any restrictions on non-discriminatory state legislation:
 Non-discriminatory state regulation is usually upheld, as long as there is no federal regulation on point
 Even non-discriminatory legislation will be struck down if it unduly burdens interstate commerce
 To determine if legislation burdens commerce, balance:
 Cost of complying w/ law AND
 State interest in regulation
• If cost>burden, the law will be struck down (mud guards)
 BUT congress can consent to or authorize state regulations that discriminates against out-of-staters or burdens interstate commerce
 21st Amendment: left power to states to regulate alcohol; states can prohibit the sale of alcohol, but cannot prohibit the shipment of alcohol through the state

Front 30

Federalism - Horizontal Federalism - Power of States to Tax Interstate Commerce

Back 30

 States may not use their tax systems to help in-state businesses (ethanol)
 States may only tax activities that have a substantial nexus to the state
 State taxation must be fairly apportioned if activity occurs in more than 1 state

Front 31

Federalism - Horizontal Federalism - Full Faith and Credit

Back 31

 Judgment by a court in one state must be enforced by courts in other states
 The court that issued the judgment MUST have jurisdiction over:
 Person; AND
 Subject matter
 The judgment MUST be:
 On the merits; AND
 Final

Front 32

Structure of Civil Liberties - Application of the Rights Provision of the Constitution - State Action

Back 32

 Constitution applies only to state, and not to private action, whether federal, state or local, legislative or administrative
 Entanglement: when there is entanglement of state and private action, whether state action exists depends on the facts
 If action is something traditionally and exclusively done by the governmentstate action applies
 Govt. cannot engage or facilitate private discrimination or aid and abet private discrimination
 Govt. cannot profit from private discrimination or enforce a private agreement to discriminate
 BUT govt. has no constitutional obligation to forbid discrimination by private actors (CAN forbid only)
 Police action, licenses: if law applied evenly, then OK

Front 33

Structure of Civil Liberties - Application of the Rights Provision of the Constitution

Back 33

 Bill of rights originally applied only to federal govt., but virtually all have been applied to the states
 14th amendment is a transfer agent
 Any claim that state violates bill of rights, need to say that it violates xst amendment AND 14th
 NO INCORPORATION of:
 2nd amendment right to bear arms
 3rd amendment right to not quarter soldiers
 5th amendment right to grand jury indictment in criminal cases
 7th amendment right to jury trial in civil cases
 8th amendment right against excessive fines

Front 34

Structure of Civil Liberties - Levels of Scrutiny - Rational Basis Review

Back 34

 Upheld if rationally related to a legitimate govt. purpose
 Govt’s actual purpose need not be legitimate as long as there is a conceivable legitimate purpose
 Chosen law need only be a rational way of achieving the result—need not be the best
 Standard: deferential to govt.
 Burden of proof: claimant has burden
 Applies to: all socioeconomic legislation

Front 35

Structure of Civil Liberties - Levels of Scrutiny - Intermediate Scrutiny

Back 35

 Upheld if substantially related to important govt. purpose
 Govt’s goal must be something more than legitimate—has to be important—court look to govt. actual purpose
 Burden of proof: Govt. has the burden
 Standard: The means have to be a very good way to achieve the objective
 Applies to: gender and legitimacy classifications

Front 36

Structure of Civil Liberties - Levels of Scrutiny - Strict Scrutiny

Back 36

 Upheld if necessary or narrowly tailored to achieving a compelling govt. purpose
 Govt’s goal must be compelling/vital/crucial—court look only to govt’s actual purpose
 Burden of proof: Govt. has the burden
 Standard: The means must be shown to be necessary/narrowly tailored to achieve objective
 least restrictive alternative analysis often used
 Applies to: race, alienage, national origin, ethnicity, laws that burden fundamental rights

Front 37

Due Process - Procedural DP - Life/Liberty/Property

Back 37

 Life: govt. must give a hearing before imposing death
 Liberty: usually violation of constitutional rights, ALSO:
 Detention, whether civil or criminal
 Physical punishment
 Restrictions on legal rights
 NO: harm to reputation
 RARELY: prisoners
 Property: physical things + govt. benefits
 Entitlement, as distinguished from expectation
 Have entitlements when govt. sets it up that way
 CUSTOM/POLICY of doing something is not an entitlement, BUT if oral promise was madethen would be entitlement
 LAW NOT: based on privileges and rights
• Based on: “have you lost an entitlement?”
 Deprivation:
 Has to be intentional deprivation (not accidental)
• Exception: accidental that shocks conscience
 No duty to protect individuals from privately inflicted harms (beating)

Front 38

Due Process - Procedural DP - Determining What Process is Due

Back 38

 Court balances 3 things:
 Importance of the interest at stake (more important the interestmore procedure required)
 Ability of the procedure to increase the accuracy of fact-finding (if more procedure reduce risk of erroneous deprivationmore procedure required)
 Govt’s interest (usually efficiency and saving $)
 Examples include:
 Right to appeal
 Right to counsel
 Trial type procedures (discipline by public school)
 Pre-deprivation hearings (welfare)
 Post-deprivation hearings (social security benefit)

Front 39

Due Process - Access to Courts

Back 39

o Filing fees must be waived if charging the fee would deny a fundamental right
 i.e. waive fee for someone seeking divorce but can’t pay

Front 40

Due Process - Substantive DP

Back 40

protects fundamental rights

Front 41

Due Process - Substantive DP - Recognized Fundamental Rights

Back 41

 Marriage and divorce:
 Strict scrutiny
 Only heterosexual marriage
 Not all marriage/divorce laws subject to strict scrutinyApplies only to core laws
 Right to procreate:
 Sterilization only if it meets strict scrutiny
 Access to contraception:
 To buy and use contraceptives
 Strict scrutiny
 Private consensual homosexual acts:
 Court did not articulate standard of review
 Refuse medical treatment:
 Court did not articulate standard of review
 Includes right to refuse food, water, lifesaving medical care
 NOT included: assisted suicide
 Requires clear and convincing evidence that person wanted treatment ended before ending treatment, b/c state has interest in protecting life
 State CAN prevent family members from terminating treatment for others
 Choose to have an abortion: UNDUE BURDEN STD
 Before viability: govt. can regulate abortion as long as it does not impose an undue burden
 After viability: state can ban abortion
 Abortion regs MUST contain exception to protect life and health of mother
 INFORMED CONSENT: OK
 WAITING PERIOD: OK
 PARENTAL NOTIFICATION/CONSENT: OK w/ judicial bypass
 SPOUSAL NOTIFICATION: NO
 LATE-TERM: OK
 No govt. financing is ever required, even if govt. pays for births
 Obscene material in the privacy of one’s home:
 Exception: child pornography
 Construct or form certain family relationships:
 Parents have fundamental right to custody of their children
 Parents have a fundamental right to educate their children as they see fit
• Parochial schools and in other language
 Violation of DP for court to order grandparent visitation rights over objection of parents
 Family has the right to live together
• BUT not people outside the family

Front 42

Due Process - Substantive DP - Non-Fundamental Liberties

Back 42

o state can abridge:
 Assisted suicide
 Hide from the government in your home
 Practice a trade or profession
 Economic liberties
 Only RBT needed for restricting freedom of K

Front 43

Equal Protection - Suspect Classes – Race, Ethnicity, Alienage - Race/Ethnic Classifications

Back 43

 Racial classification that burdens a minority will almost certainly be struck down
 Govt. must show a compelling interest to classify, and it rarely will be able to do this
 A law is race-based when the law classifies by race on its face or has discriminatory intent
 Discriminatory intent: must show more than disparate impact
 BUT racial purpose need not be explicit

Front 44

Equal Protection - Suspect Classes – Race, Ethnicity, Alienage

Back 44

strict scrutiny

Front 45

Equal Protection - Suspect Classes – Race, Ethnicity, Alienage - Affirmative Action

Back 45

 Strict scrutiny, even though intended to help minorities
 Racial classifications inherently suspect
 Quotas are generally NOT allowed
 2 explicitly recognized compelling state interests:
 remedying past discrimination by the institution extending the preference
 diversity in the educational context
 TO PASS: school must engage in individualized consideration—no mechanical points; only serve as “plus”

Front 46

Equal Protection - Suspect Classes – Race, Ethnicity, Alienage - School Desegregation

Back 46

 De jure: unconstitutional
 Official state policies
 De facto: OK
 Separation of races where no state policies involved, such as voluntary housing patterns
 School busing: only if suburbs responsible for/complicit in the segregation
 “Scope of the remedy is limited by scope of violation”

Front 47

Equal Protection - Suspect Classes – Race, Ethnicity, Alienage - School Assignment Plans

Back 47

 Public schools cannot assign students on race unless:
 There is compelling interest AND
 The means are narrowly tailored

Front 48

Equal Protection - Suspect Classes - Race, Ethnicity, Alienage - Alienage

Back 48

 States cannot impose requirement of US citizenship for private employment or govt. benefits
 i.e. no citizenship requirement for license, tuition
 3 Exceptions:
 1. States can favor citizens for jobs:
• firefighter, police officer, teacher, probation officer, notary public.
• policy making
• implementing government functions
• self government and the democratic process
 2. At federal level, regulation of immigrants: RBT
• Fed has plenary power over immigration
• State level regulation: Strict Scrutiny
 3. State laws that burden immigrant children: intermediate scrutiny
• No standard known for illegal adults

Front 49

Equal Protection - Quasi-Suspect Classes - Legitimacy, Gender - Legitimacy

Back 49

o discrimination against non-marital children
 Most legitimacy classifications struck down
 OK to make laws regulating legitimacy to prevent fraud

Front 50

Equal Protection - Quasi-Suspect Classes - Legitimacy, Gender - Gender

Back 50

 Most gender classifications struck down
 Standard: Intermediate + state must have an EXCEEDINGLY PERSUASIVE justification to adopt gender classification
 SCOTUS attentive to the perpetuation of stereotypes
 3 Exceptions:
 1. Statutory rape laws: OK to prevent underage girls from getting pregnant
 2. The draft: OK if govt determines that it is appropriate based on average size/strength
 3. Citizenship laws: OK for women to easier pass on citizenship to child
 Disparate impact is not sufficient showing to show equal protection violation if law is facially neutral—need intent to discriminate
 “because of, not despite” test

Front 51

Equal Protection - Rational Basis

Back 51

all other laws other than classes above
o Law must be rationally related to state interest
o Almost impossible to fail
o All gov’t economic regulation subject to RBT
o AGE: RBT in terms of constitution, but there might be statutes that prohibit it
o POVERTY/WEALTH: RBT
o NO: if only justification as animus/moral disapproval
 Also, cases of SEXUAL ORIENTATION and DISABILITY

Front 52

Equal Protection - Fundamental Rights and EP - Education

Back 52

 Not a fundamental right, so unequal educational opportunities do not violate EPC

Front 53

Equal Protection - Fundamental Rights and EP - Right to Travel

Back 53

 Is fundamental right, so laws that keep people from entering/moving into a state must meet SS
 Durational residency requirements (need to be resident for X time to get benefits) invalid
 Voting: 50 days = maximum allowable durational requirement
 FOREIGN TRAVEL: only gets RBT

Front 54

Equal Protection - Fundamental Rights and EP - Right to Vote

Back 54

 15th A: right to vote cannot be denied on race
 Right to vote is fundamental right protected by EPC
 Laws to keep citizens from voting struck down
 Exception: water district for property qualification
 One person, One vote principle
 Districts must be of equal size for a elected body
 Applies whenever reps are elected by district
 Exception: specialized govts.—agricultural district
 At large elections allowed as long as there is no discriminatory purpose
 Gerrymandering:
 Racial: NO—Std is if district is drawn in too strangely, it must have been drawn for racial reasons
 Partisan: OK, not justiciable

Front 55

First Amendment - Freedom of Speech - Content-Neutral v. Content Based Speech

Back 55

 Is the law aimed at content?
 Content-based regulations:
 Strict scrutiny
 Often struck down
 Content-neutral regulations:
 Intermediate scrutiny
 Sometimes struck down
 How to establish that law is content based:
 Is the law a subject matter restriction
 Is the law a viewpoint restriction
 If there is discretion to pick and choose: NO
 Content-neutral: Time, place, manner restrictions OK
 If law is content neutral, it must allow for substantial other opportunities for speech
 Content-neutral laws that restrict speech must narrowly serve a significant govt interest

Front 56

First Amendment - Freedom of Speech - 5 Exceptions to Rule Against Content Based Restrictions

Back 56

 Incitement: if it tends to incite immediate violence
 Substantial likelihood of causing illegality, AND
 The action/speech is designed to cause illegality
 Fighting words/Hate speech:
 Have to be addressed to a particular person
 All fighting words statutes are vague or overbroad
 Obscenity:
 Appeals to the prurient interest or sex
 Patently offensive to the average person in the community—COMMUNITY SPECIFIC
 Lacks serious value
• If scientific, artistic, literary, political—NOT obscene no matter what
• Social value is judged by NATIONAL standards, not local standards
 Zoning of adult theaters is allowed
 Profanity is protected except that schools can punish profane student speech and FCC can ban broadcasts, but not print
 Child pornography can be banned, even in home
 Obscenity laws must contain standards—can’t be vague or overbroad or provide that obscenity is to be determined by a jury based on their opinion
 Defamation:
 If P is public official or candidate for public office: need clear and convincing evidence of:
• Falsity of the statement
• There has to be actual malice: that P knew statement was false or acted w/ reckless disregard for the truth
 If P is a private figure and is being criticized on an issue of public concern:
• Falsity of the statement
• Negligence on the part of the speaker
 If P is a private figure and speech does not involve a matter of public concern:
• P can recover presumed as well as punitive damages w/o actual malice
 Commercial advertising: Truthful advertising must be allowed, but 3 restrictions OK
 If it is misleading:
• Diff w/ political speech—misleading OK
• State may prohibit in person solicitation by lawyers for clients, but not accountants
 If it pertains to an illegal product
 If it meets intermediate scrutiny
• i.e. banning solicitation of accident victims for 30 days to prevent exploitation

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First Amendment - Freedom of Speech - 9 Other Important Free Speech Concepts

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 Vagueness:
 If law gives no clear notice of what is prohibited, it is void for vagueness
 Over-breadth:
 If the law burdens substantially more speech than is necessary to achieve a compelling interest
 Symbolic speech/conduct as speech: can be restricted if
 If the government has an important interest;
 The restriction is not related to suppression of speech; AND
 The impact on communication is no more restrictive than necessary
 Nude dancing is not protected speech
 Burning flag protected, burning draft card is not
 Burning cross is protected speech, unless done w/ intent to threaten
 Prior restraint is subject to strict scrutiny:
 Administrative order/judicial decision that stops speech before it occurs—i.e. Pentagon Papers—NO
 Gag orders on press to prevent pretrial publicity is not allowed, no matter the crime
 State can require permits for speech only if:
• Guidelines must be clear
• Have to be laid out in advance
• No discretion to executive officials
 Right not to speak:
 State cannot compel an individual to speak
 Electoral process:
 Campaign restrictions can be restricted
 Independent expenditures cannot be restricted
 Speech by government employees:
 Govt. employees have free speech rights and cannot be hired or fired based on political party or philosophy or any act of expression
 4 Exceptions:
• 1. Govt. employer can fire someone for their speech when speech is made pursuant to employee’s official duties
• 2. Hatch Act: prohibits public employees from speaking WRT political campaigns
• 3. Failure to perform one’s job can be basis for firing—i.e. fails to teach curriculum
• 4. Policy making officials and confidential advisors get no speech protection
 1st amendment right to anonymous speech: OK
 Invasion of privacy:
 State may not allow liability for truthful reporting of information lawfully obtained from govt records
 Media cannot be liable for illegally intercepted conversation as long as:
• Media did not participate in illegally obtaining the info
• Speech involves matters of public concern
 Govt. may restrict its own dissemination of info to protect privacy

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First Amendment - Freedom of Speech - Places Available for Speech

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 Public forums:
 Regulation must be subject and viewpoint neutral
 It not neutralmust meet SS
 If regulation is a neutral time, place, manner restriction, it must meet:
• Intermediate scrutiny
• But govt. does NOT have to use the least restrictive alternative
 Limited public forums:
 Places the govt. could close to speech but has nonetheless chosen to open to speech
 Same rules as public forums
 Non-public forums: military bases, areas outside jails, bus ads, sidewalk outside post-office, airports
 Govt. buildings that govt. can & does close to speech govt. can regulate if regulation is:
• Reasonable AND
• Neutral
 Privately owned property:
 NO 1st amendment right to use private property for speech purposes

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First Amendment - Freedom of Association

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o Laws that punish membership in a group: SS
o Govt. can require disclosure of affiliation w/ a group only if SS is met, b/c disclosure can chill speech
o Free association does not protect the right to discriminate, unless the discrimination involves
 Intimate discrimination (friends, partners); OR
 Discrimination is integral to the purpose of the group
 Ex. Boy scouts allowed to discriminate
o An individual can be punished for association w/ a group engaged in illegal activities if:
 Association is proven
 Knowledge of illegal activities is shown
 Person possesses specific intent to further illegal activities of the group

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First Amendment - Freedom of Religion - Free Exercise Clause

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 Free exercise clause protects religious belief absolutely
 BUT govt. can inquire into the sincerity of the belief, but not the validity of the belief
 Religious conduct:
 Cannot prohibit conduct b/c it is religious
 BUT religion does not get special protection from generally applicable laws if govt. has legitimate non-religious purpose to regulate, it can.
 No exceptions to generally applicable law
• EXCEPT: Amish

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First Amendment - Freedom of Religion - Establishment Clause

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o govt. can’t establish a religion
 A law is unconstitutional if it fails any prong:
 Law must have a secular purpose
 Law cannot be exceedingly tangled w/ religion
 Primary effect of law cannot be to promote religion or to endorse religion
 Endorsement is the governing idea: govt. cannot endorse a specific religion or religion as opposed to non-religion
 Coercive endorsement: public school prayer
 Nativity scene: OK, as long as there is something to dilute the religious message, i.e. Santa
 Can teach bible as history or literature
 Govt. cannot discriminate against religious speech or among religions unless it meets SS
 School can’t exclude religious groups
 Govt. can give money to religious schools as long as school doesn’t use them in religious instruction
 OK to give $ for facilities
 Vouchers also OK

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Individual Rights - Ex Post Facto Laws

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o NO: laws that criminalizes past behavior or applies retroactively
BUT applies to criminal sanctions only; CIVIL OK

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Individual Rights - Bill of Attainder

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o NO: legislative prescription of an individual
o i.e. “John is a felon”

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Individual Rights - Contract Clause

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o Constitution provides that no state shall impose the obligation of Ks
o Forbids retroactive impairment of Ks unless there is an overriding need
o Applies only to existing Ks
 Rules can be changed for the future
o Applies ONLY to the states and NOT the federal government
 States can interfere w/ private Ks only if intermediate scrutiny is met
 States can interfere w/ existing state or local Ks only if SS is met

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Individual Rights - 14th A. Privileges and Immunities

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o States cannot deny the privileges and immunities of national citizenship
o Applies today only when right to travel is at stake

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Individual Rights - Takings Clause

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• 5th Amendment
o When is there a taking:
 Taking requires physical occupation of your property
 Reduction in value is not a taking
 SIZE of occupation is not important
 Regulatory takings:
 Regulate your use of property, i.e zoning, envtl.
 Govt. must leave the owner economically viable use of property—but does NOT have to be the most profitable use or the owner’s intended use
 Govt. conditions on development of property must result in a benefit to govt. that is roughly proportionate to the burden on property owner
 Takings challenge to regs already in place at time land was acquired: OK
 Temporarily disallowing an owner of property the ability to develop a property: OK
 Permit cases:
 Govt. can require development or use permits, even though permits have fee—BUT permit has to be related to the impact of the development
o What is public use:
 As long as govt. acts out of a reasonable belief that it will benefit the public
 i.e. to create jobs in poor area
o What constitutes Just Compensation:
 Measured in terms of the loss to the owner
 Gain to the taker is irrelevant
 Calculated in terms of fair market value
 No sentimental value