Constitutional Law

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State Action

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The Constitution does not provide for a redress of grievances for constitutional violations arising from actions by private citizens. Therefore, in order for a Constitutional violation to be asserted a governmental action must be present.

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Substantive Due Process

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The Due Process Clause of the 14th Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. The substantive due process prong of the Due Process Clause is judge-made law that provides that some rights are so fundamental to our existence as citizens and humans that a mere deprivation of them is a constitutional violation.

Here, the state is denying ________ the right to _________. The question is whether plaintiff has a fundamental right to _____________. If so, the deprivation is per se unconstitutional.

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Substantive Due Process - Fundamental Rights and Strict Scrutiny

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The rights to marriage, privacy, sexual relations, abortion and childrearing are all deemed fundamental under the substantive due process clause. When a fundamental right is being interfered with by the government, courts will apply the strict scrutiny test to the state action. Under the strict scrutiny test, the government has the burden of showing that its action is necessary to achieve a compelling state interest.

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Equal Protection

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The Equal Protection Clause of the 14th Amendment provides that no person shall be denied equal protection of the laws. This generally means that individuals can only be classified on the basis of a group characteristic in limited situations. In order to determine whether an Equal Protection Clause violation exists the classification being used must be scrutinized.

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Equal Protection - Classification

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Courts apply different levels of scrutiny for different classifications. Classifications based on a suspect class such as: race, national origin, and alienage are subject to strict scrutiny. Classifications that are based on gender and illegitimacy are subject to intermediate scrutiny. All other classifications are subject to the rational basis test.

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Equal Protection/Classification/Rational Basis Test

BC

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This test requires that the challenger show that the government’s classification is not rationally related to a legitimate government purpose. Under this test almost any governmental purpose will pass muster.

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Equal Protection - Fundamental Rights

BC

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Under the Equal Protection Clause, a regulation that does not classify on the basis of a suspect or quasi-suspect class but which burdens a fundamental right is subject to strict scrutiny. Rights deemed fundamental pursuant to the Equal Protection Clause are the privacy rights, the First Amendment rights, the right to vote, the right to be a candidate and the right to interstate travel.

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Individual Standing

BC

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Article III requires that an actual case or controversy exist before a constitutional challenge can be made. Part of that requirement is a plaintiff must have standing to sue. Standing means the individual has suffered: 1) an injury in fact; 2) that is redressable by a favorable court decision; and 3) was caused by the act being challenged.

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Third Party Standing

BC

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A claimant may have standing to assert the rights of a third party if: 1) it is difficult for the third party to assert his or her own rights; or 2) a special relationship exists between the claimant and the third party.

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Establishment Clause

BC

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The First Amendment of the US Constitution provides that the government shall not establish a religion. To determine whether the Establishment Clause has been violated, courts look first to whether a particular sect was preferred by the government. If not, the state action will stand if: 1) it has a secular purpose; 2) it neither advances nor inhibits religion; and 3) it does not create an excessive entanglement between church and state.

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Establishment Clause - Excessive Entanglement

BC

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An excessive entanglement can occur when the government’s policy results in excessive oversight or monitoring of a religious entity by the government.

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First Amendment Free Exercise Clause

BC

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The Free Exercise Clause contains both the freedom to believe in any religion and the freedom to conduct one’s self in accordance with any religion.

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First Amendment - Beliefs

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The freedom to believe in any religion is technically absolute and any government action that directly punishes someone on the basis of his or her religious beliefs is per se unconstitutional. Nonetheless, government regulations that indirectly impose burdens on people of certain religions will be upheld if the government can show that the regulation is necessary to achieve a compelling state interest (strict scrutiny).

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First Amendment - Freedom of Speech

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The First Amendment to the United States Constitution states that the government shall make no law that abridges the freedom of speech. When determining whether or not this protection has been violated the courts generally look to whether the law/regulation of speech is content based or content neutral. When looking at content-based speech regulations, courts distinguish between protected speech and unprotected speech.

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First Amendment - Freedom of Speech - Content Based Protected Speech/Strict Scrutiny

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A content-based regulation seeks to prohibit the expression of certain ideas or information. Such regulations are generally prohibited and are subject to the highest level of judicial review – strict scrutiny. Under this standard the government has the burden of showing that the regulation is necessary in furthering a compelling government interest and the regulation is narrowly drawn to achieve that interest.

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First Amendment - Content Neutral/Intermediate Scrutiny

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Content-neutral regulations are those that do not prohibit the expression of certain ideas, but prohibit speech in its entirety based on the time, place, and manner of the expression. Content neutral regulations must generally be narrowly tailored to serve a significant government interest and must leave open alternative channels of communication of the information.

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Overbroad

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Overbroad statutes are generally prohibited under the First Amendment. A statute is overbroad if it bans speech that could constitutionally be forbidden but also bans speech which is protected by the First Amendment.

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Vague

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A statute is unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning, or it the regulation fails to give notice of what speech is prohibited.

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The Regulation of Conduct

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Whether the government can regulate conduct depends on whether the forum in which the conduct occurs is a public, non-public or limited public forum.

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The regulation of conduct/Public Forum

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A public forum is a place where speech has traditionally be permitted, such as a public park. The government may regulate certain conduct in public forums provided: 1) the regulation is content-neutral; 2) is narrowly tailored to serve a significan government interest; and 3) there are alternative channels of communicaiton left open.

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The reguation of conduct/Limited Public Forum

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A limited public forum is one that was not historically open to speech but has been designated for such purposes by the government, such as a school. Regulations in limited public forums must satisfy the same standards as those in public forums.

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The regulation of conduct/Non-public Forum

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Non public forums are government-owned property that are not open to speech (such as the White House). The government may regulate conduct and speech in non-public forums if: 1) the regulation is viewpoint neutral; and 2) the regulation is reasonably related to a legitimate government purpose.

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Intro Statement: Prior Restraint, Vagueness, Overbroad, or Unfettered Discretion

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Outside of hte tests pertaining to certain types of speech, courts also look to whether the regulation is a prior restraint, is vague, overbroad or permits government officials to have unfettered discretion in determining what conduct is or is not permitted.

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Prior Restraint

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Prior restraints, which are regulations that prohibit speech before it occurs, are generally not permitted. In order for a prior restraint to pass constitutional muster, the government has the burden of showing that the prior restraint is necessary in order to prevent some special societal harm.

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Procedural Safeguards for Prior Restraints

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Any system in place for prior restraints must contain certain procedural safeguards, including: 1) standards that are narrowly drawn, reasonable and definite; 2) an injunction that must be propmptly sought; and 3) there must be a prompt and final determination of the validity of the restraint.

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Vague

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A statute is unconstitutionally vague if hte conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning, or if the regulation fails to give notice of what speech is prohibited.

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Overbroad

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A statute is overbroad if it bans speech that could constitutionally be forbidden but also bans speech which is protected by the First Amendment. Overbroad statutes are almost always per se unconstitutional.

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Unfettered Discretion

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Under the First Amendment, a regulation that gives government officials unfettered discretion to determine what speech is prohibited is void on its face, and hte speaker can challenge the regulation before apply for a permit. If there ar esome guidelines or standards for the government official, however, the speaker must apply for and get rejected for a permit before challenging the regulation on First Amendment grounds.

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Commerce Clause

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Congress has the power to regulate the channels, instrumentalities, and any activity that substantially affects interstate commerce. Here, Congress has not regulated in the area of waste disposal, therefore City may impose a regulation within the limitations discussed below.

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Dormant Commerce Clause (DCC)

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If Congress has not regulated in an area the states may regulate on the particular subject matter as long as the regulation does not: 1) directly discriminate against out-of-state commerce; or 2) the regulation does not unduly burden interstate commerce.

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DCC - Direct Discrimination

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A law that discriminates against out-of-state commerce on its face by preferring local interests is presumed to be invalid. However, a facially discriminatory law may be upheld if: 1) it furthers an important non-economic interest; and 2) there are no less discriminatory alternatives available. Such laws will also be upheld if the state is acting as a market participant.

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DCC - Market Participant

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A state may prefer its own citizens when acting as a market participant, including buying or selling products, hiring labor and giving subsidies.

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DCC - Undue Burden (Burden Balancing Test)

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Even where a law does not facially discriminate, it may be unconstitutional if it unduly burdens interstate commerce. A law unduly burdens interstate commerce when the burden on commerce outweighs the local interests protected or benefited by the legislation. This is known as the burden balancing test.

If the law unduly burdens interstate commerce, it may still be valid if the state is acting to further an important interest and there are no less discriminatory alternatives. It will also be valid if the state is acting as a market participant.

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Privilege and Immuniities Clause

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Under the Privilege and Immunities Clause, a state cannot discriminate against residents of other states unless it can show a substantial justification for the differential treatment and that no less restrictive means were available.

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Contracts Clause

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The Contracts Clause generally prohibits states from enacting legislation that retroactively interferes with existing contractual relationships. Legislation that impairs a private contract is invalid unless the law: 1) serves an important and legitimate interest; and 2) is a reasonable and narrowly tailored means of promoting that interest.

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Organizational Standing

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Generally a third party does not have standing to bring an action on behalf of another individual. However, there are a few exceptions. An organization can bring an action challenging a governmental action on behalf of its members if it meets the following criteria: 1) individual members have suffered an injury infact and thus have standing to sue on their own behalf; 2) the injury is germane to the purpose of the organization; and 3) participation from individual members of the organization is not required.

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Equal Protection Clause - 14th Amendment/Classification/Discriminatory Intent

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In order for a classification to be subject to scrutiny under the Equal Protection Clause, however, the plaintiff must show that there was discriminatory intent behind the classification. Mere discriminatory impact is insufficient to establish an Equal Protection violation. Discriminatory intent can be shown when the classification is: 1) discriminatory on its face; 2) discriminatory in its application; or 3) has a discriminatory motive behind it.

Because the classification is ____, the level of scrutiny to be applied is _________.

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Equal Protection/Classification/Strict Scrutiny

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Under the strict scrutiny test, the classification must be necessary to serve a compelling government interest. Whe nthe strict scrutiny test is being applies, the government has the burden of proof.

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Equal Protection/Classification/Intermediate Scrutiny

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Under the intermediate scrutiny test, the classification must be substantially related to an important government interest. In general, an exceedingly persuasive justification must exist in order to warrant the classification. whe nthe intermediate scrutiny test is being applied, the government has the burden of proof.

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Equal Protection/Classification/Rational Basis

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Under the rational basis test, the classification must be rationally related to a legitimate state interest. When the rational basis test is being applied, the plaintiff has the burden of proof. Almost any legitimate state interest will pass muster.