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68 Cards in this Set

  • Front
  • Back
Standing
Standing to challenge a statute requires that the plaintiff faces actual or imminent harm fairly traceable to the government, and that the relief requested will redress the harm that is alleged.
Equal Protection Clause
The EPC of the 14th Amendment limits the ability of the government to intentionally discriminate.
Strict Scrutiny
Strict scrutiny places the burden on the government to prove that the statute is necessary to serve a compelling governmental interest.
Commerce Clause (Dormant)
The Commerce Clause grants Congress the sole authority to regulate interstate commerce, and a state may not discriminate against or substantially burden interstate commerce without an important local interest. Here, ___.
Under the CC, a state statute that discriminates based on geography must pass strict scrutiny.
Congressional Consent Exception
State discrimination in violation of the dormant commerce clause can be authorized by federal law.
Supremacy Clause
Under the Supremacy Clause, a state law is preempted if it conflicts with a federal law. (But Congress may only do so when acting pursuant to powers granted by the Constitution.)
Due Process Clause
The Due Process Clause of the 14th Amendment limits the government's ability to interfere with a liberty interest...
Search and Seizure Clause
The Search and Seizure Clause of the 4th Amendment, applicable to the states through the 14th Amendment, prohibits governmental searches generally unless based on probable cause.
14th Amendment (Congressional Powers)
The 14th Amendment gives Congress power to act to remedy constitutional violations, but not the power to create new substantive rights.
Separation of Powers
The Separation of Powers concept prevents one branch of the federal government from doing something reserved to another. The power to interpret the constitution and laws is reserved for the judiciary.
Federalism
Under the concept of federalism, the federal government cannot interpret state laws.
Severability Clause
The Severability Clause authorizes courts to sever unconstitutional sections.
10th Amendment
The 10th Amendment reserves all powers not expressly granted to the federal government for the states.
Rational Review
Rational Review places the burden on the citizen challenging the statute to prove that the law is not rationally related to a legitimate governmental interest.
State Action
The Constitution only limits governmental/state action.
Pervasive Entwinement (state action)
Normally, the rules of a private organization do not have to pass constitutional muster, unless there is pervasive entwinement between the private group and the government.
Establishment Clause
The 1st Amend Establishment Clause, applicable to the states through the 14th Amend, may be implicated. Under the Lemon test, a law is proper if 1) it has a secular legislative purpose; 2) the primary effect neither advances nor inhibits religion, and 3) it does not cause excessive entanglement with religion.
Free Exercise Clause
The 1st Amend Free Exercise Clause, as applied to the states through the 14th Amend's Due Process Clause, limits the government's ability to inhibit or compel religious practice. A generally applicable law does not violate the FEC, even if it inhibits religious practice.
Vagueness
The vagueness rule of the 14th Amend's Due Process Clause requires that a law give a person of common intelligence notice of what is prohibited.
Overbreadth
The overbreadth doctrine holds that a statute that regulates speech and prohibits a substantial amount of protected speech is unconstitutional.
Procedural Due Process
The 14th Amend Due Process Clause requires that a person be given notice and the meaningful opportunity for a hearing before being deprived of liberty or property.
Free Speech Clause (Govt Employee regulation)
The 1st Amend Free Speech Clause, as applied to the states through the 14th Amend's Due Process Clause, provides that governments can regulate expression of its employees only to the extent necessary to ensure proper functioning of the government office.
Free Association Clause
The 1st Amend's Free Association Clause, as applied to the states through the 14th Amend's Due Process Clause, limit's the goverment's ability to regulate association with persons of one's choosing, absent involvement of some illegality.
Mootness
A case is considered moot if there is no longer a live controversy.

Exceptions: Harm is capable of repetition, yet will evade review; collateral consequences; class action where other members of class have a continuing interest in the outcome of case; necessary to prevent govt from returning to challenged activity
Ripeness
The ripeness requirement prevents causes of action that are too speculative or uncertain. (Or if government never prosecutes.)
Harm is capable of repetition, yet will evade review
Where the harm is capable of repetition, yet will evade review, a court may hear a case even though there is no longer a live controversy in the present case.
Collateral Consequences
A case may be heard even though moot if collateral legal consequences maybe imposed on the basis of the challenged conviction/cause of action.
Political Questions
A political question is an issue not for the courts, but should be decided by one of the "political" branches of government: Congress or President.
Abstention
A federal court may abstain from deciding the constitutionality of state laws and actions until the state courts have had a chance to resolve key issues of the state law.
Concurrent Jurisdiction
State courts have concurrent jxdn over matters within the jxdn of the federal courts, except where Congress/Constitution vests exclusive jxdn in the federal courts.
SC: Original and Exclusive Jurisdiction
The SC has original and exclusive jxdn in all cases between 2 or more states.
Adequate and Independent State Grounds
Supreme Court review is not available even if federal issues are involved if the state court decision is based upon an adequate and independent state ground. State procedural grounds are adequate if the procedure is uniformly applied and furthers a legitimate state interest.
Advisory Opinions
Federal courts cannot issue advisory opinions. (State laws that permit state courts to do so are fine.)
3rd Party Standing
A 3rd party must show 3 things in order to have standing: 1) the plaintiff must have suffered some injury (e.g. economic); 2) it is unlikely/difficult that/for the 3rd party would bring their own action; and 3) a special relationship exists btw the 3rd party and the plaintiff
(Federal) Taxpayer Standing
A federal taxpayer does not have standing to challenge federal expenditures except where Congress/Constitution specifies limits to congressional spending. (E.g. Establishment Clause)

State taxpayer standing generally ok.
Speech and Debate Clause
Under the Speech and Debate Clause, Congressmen and their aides cannot be held accountable in any forum except Congress for acts integral to the deliberative and political process, such as speaking or voting on the floor of Congress.
Takings Clause
Under the Takings Clause of the 5th Amendment, the government cannot take private property for public use without just compensation. A taking is a physical taking or regulation so extensive that property has virtually no value.
The Amendments (Incorporated through Due Process Clause of 14th Amend)
1st Amend = speech and religion
2nd Amend = bear arms
4th Amend = search and seizure
5th Amend = self-incrimination, but NOT grand jury
6th Amend = criminal jury
8th Amend = cruel and unusual punishment, but NOT excessive bail
Enabling Clauses
Congress can enforce the 13th, 14th, and 15th Amendments:

13th Amend = outlaws slavery (private and public conduct!)
14th Amend = due process and equal protection
15th Amend = voting not infringed due to race
3rd Party Standing - Association
An association has standing to bring a case for an individual member if: 1) individual member would have standing; 2) interests asserted by association are germane/relevant to purposes of association; AND 3) the claim asserted nor relief requested requires individual member to testify
Commerce Clause (Federal)
Under the Commerce Clause, Congress has the power to regulate the channels of interstate commerce or activities that have a national economic impact.
Substantive Due Process
The 14th Amend Due Process Clause protects those rights "implicit in the concept of ordered liberty."
Bill of Attainder
State or federal legislation cannot impose punishment without the benefit of a trial.
Ex Post Facto
The government cannot impose retroactive criminal penalties.
Contracts Clause
State law cannot impair an existing contractual obligation absent an important public need.
Mid-Level Scrutiny (gender - Fed, illegitimacy)
Mid-Level Scrutiny requires the government to prove that the law is substantially related to an important governmental interest.
Privileges and Immunities Clause (Art. IV)
Under the P&I Clause of Article IV, states may not deprive a citizen of another state of the basic rights of citizenship. Here, because the state law discriminates against ____ for ____, the state must show that it has substantial reasons for discriminating and the discrimination bears a close relation to those reasons.
Freedom of Expression (general)
The 1st Amendment Free Speech and Association Clauses, applicable to the states through the Due Process Clause of the 14th Amend, limits the government's ability to interfere with protected expression.
Fully Protected Speech Test: Public Forum/No Place + Content-Based
Strict scrutiny!
Fully Protected Speech Test: Non-Public Forum + Content-Based
Constitutional if reasonable, considering purpose of property
Fully Protected Speech Test: Limited Public Forum + Content-Based + Viewpoint-Neutral
Constitutional if reasonable, considering purpose of property
Fully Protected Speech Test: Limited Public Forum + Content-Based + Viewpoint-Based
Strict scrutiny!
Fully Protected Speech Test: Public Forum/No Place + Content-Neutral
Constitutional as Time, Place, Manner Restriction
Time, Place, Manner Restriction
A content neutral regulation of fully protected expression that applies in a public forum may constitutionally impose time, place, manner restrictions if they are narrowly tailored to serve an important governmental interest and which leave alternative means to communicate.
Fully Protected Speech Test: Non-Public Forum + Content-Neutral
Constitutional if it is reasonable, considering the purpose of the property
Fully Protected Speech Test: Limited Public Forum + Content-Neutral
Constitutional if it is reasonable, considering the purpose of the property
Fighting Words
Fighting words are those reasonably likely to incite immediate violence against the speaker, and not protected by Constitution.
Incitement to Violence
Incitement to violence speech creates a clear and present danger of immediate lawless action against others, and is not protected by the Constitution.
Defamation
Defamation is a state tort of harm to reputation from falsehoods, and is not protected by the Constitution. Test: public figures v. private figures...
Obscenity (Miller)
Obscenity is defined by expression that appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, scientific value. If all 3 criteria are met, then it is not protected by the Constitution.
Indecency
Indecency includes expression that does not reach the level of obscenity, and has low level protection via the Constitution.
Commercial Speech
Commercial speech can be banned if illegal or misleading. Otherwise, it can only be regulated if the law directly advances a substantial governmental interest that reasonably fits the ends and means.
Prior Restraint
A prior restraint is a regulation that seeks to punish speech before it takes places. It will only be valid if it is narrowly drawn, reasonable and definite, if there is prompt & final determination and a notice and hearing are granted.
Right to Bear Arms
The 2nd Amend, applicable to the states through the Due Process Clause of the 14th Amend, prevents the government from totally banning the right to bear arms.
Fully Protected Expression
Analysis of a regulation of fully protected expression depends on whether the law regulated by content and/or by place.
Fully Protected Expression: By Content
The content-based/content-neutral distinction considers whether the regulation focuses on the message/content of the expression.
Fully Protected Expression: By Place
A public forum/non-public forum distinction considers whether the regulation applies to public property traditionally reserved for the expression of ideas.
8th Amendment
The 8th Amendment Cruel and Unusual Punishment Clause, applicable to the states through the 14th Amend, prohibits excessive punishment.