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34 Cards in this Set

  • Front
  • Back
DCC--> Discriminate against out of staters by burdening interstate commerce
Violates DCC unless NECESSARY to achieve IMPORTANT GOV INTEREST and NO REASONABLE NONDISCRIMINATORY ALTERNATIVE

(almost always invalid)

Exception: Market participant / congressional approval
Privileges and Immunities Clause / Article 4 --> Discriminate against out of staters w/ regard to ability to learn livelihood
Violates PI unless its NECESSARY to achieve an IMPORTANT GOV. INTEREST. Must be w/ regard to civil liberties or important economic activities.

Doesn't apply to corporations / aliens (must use DCC)
State taxation of interstate commerce
Cannot tax interstate commerce unless SUBSTANTIAL NEXUS, FAIR APPORTIONMENT, and FAIR RELATIONSHIP. Otherwise undue burden.
Full Faith and Credit
Jurisdiction, Merits, Final
Types of State Action (2)
Public Function --> Traditionally and exclusively done by gov.

Entanglement --> Affirmatively authorizes, encourages, or facilitates unconstional activity.
Rational basis test
Rationally related to a legitimate government purpose
Intermediate Scrutiny
Narrowly tailored

Substantially related to an important government purpose
Strict Scrutiny
Necessary

to achieve compelling governmental interest

Least restrictive means
Procedural Due Process balancing test
Importance of interest to individual

ability of additional procedures to increase accuracy of fact finding

government's interest
Possessory Taking Test
(1) Economic impact
(2) Extent of interference w/ investment backed expectations
(3) Character of the government action
Contracts Clause Tests (2)
Private contracts: Intermediate scrutiny

Government contracts = Strict Scrutiny

BIll of Attainder / Ex Post Facto --> Civil liability only needs rational basis
Fundamental Rights to Privacy

MAD VT (vermont) COPS protects fundamental privacy interest
M --> Marry
A --> Abortion
D --> Terminally ill person to Die

V --> Vote
T --> Travel

C --> contraceptives
O --> Obscene material in private
P --> Parenting rights (control upbringing and education of child)
S --> Sexual activity / sodomy

ALL GET STRICT SCRUTINY (except abortion)
Abortion Test
Cannot prohibit before viability.

OK to regulate as long as no undue burden on ability to obtain abortion.

Spousal consent / notification laws are unconstitutional.

Parental notice / consent OK as long as alternative procedure before judge.
No Fundamental Rights to...
Education

Practice a trade or profession
Equal Protection --> Strict Scrutiny classes
Race / National Origin

Alienage (unless government / democratic process issue --> gets rational basis)
Equal Protection --> Intermediate Scrutiny classes
Gender (IM + exceedingly persuasive justification)

OK to remedy past discrimination

Non-marital children

Children of aliens
Equal Protection --> Rational basis classes
Age
Disability
Wealth
Economic
Sexual Oreintation
Freedom of Speech Threshold Test:
Is it content-based or content-neutral?
Content-based speech test
Subject matter restrictions [topic] and viewpoint restrictions [ideology]

Get strict scrutiny.
Content-neutral speech test for public forums
Intermediate scrutiny

OK if time/place/manner regulation, Important governmental purpose, adequate alternatives for public forums
Content-neutral speech test for nonpublic forums
Reasonable and viewpoint neutral
Content-neutral speech test for private forums
No protection.
Prior Restraints
Must meet strict scrutiny

BUT if procedurally proper, must comply with the law until its overturned.
License / permit to speech
Ok ONLY if there are: important reasons / procedural safeguards / no discretion with authority.
Two challenges to speech laws
Vagueness --> Rx person cannot tell what speech is prohibited / allowed

Overbreadth --> Regulates substantially more speech than constitution allows.
Symbolic speech laws
Regulate conduct if it has impotant interest UNRELATED to suppression of the message, and impact is NO GREATER THAN NECESSARY to achieve gov's purpose.
Incitment of Illegal Activity
Gov can regulate if there is SUBSTANTIAL LIKELIHOOD OF IMMINENT ILLEGAL ACTIVITY, and speech is DIRECTED TO CAUSING IMMINENT ILLEGALITY
Obscene Speech
Must appeal to prurient interest, must be patently offensive under community standard.

Taken as a whole, lacks redeeming artistic, political, scientific, etc value.

Profane / indecent speech is protected, except over broadcast media and in schools (BONG HITS 4 JESUS)
Commercial speech
Illegal activity, false & deceptive ads are not protected.

Other commercial speech gets intermediate scrutiny.
Freedom of Association test
Strict Scrutiny
Punishing member of a group, gov must prove: (3)
(1) Active affiliation w/ group

(2) Knowledge of its illegal activities

(3) Specific intent of furthering those illegal activites
Laws that prohibit a group from discriminating are ____ unless ___
They are constitutitional, UNLESS it interferes with INTIMATE association, or expressive activity
Free Exercise Clause Test -->
Cannot be used to challenge neutral and general laws of applicability.

Must show government purpose to discriminate and religious speech / religion. Then gets Strict Scrutiny
Establishment Clause test
(1) Secular Purpose

(2) Effect must neither advance or inhibit religion

(3) No excessive entanglement with religion.