Essays Con Law

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dormant commerce clause

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If Congress has not enacted legislation in a particular area of interstate commerce,then the states are free to regulate, so long as the state law does not discriminateagainst out-of-state commerce, unduly burden interstate commerce, or regulateout-of-state activity.

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discrimination against out of state commerce

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A state or local regulation discriminates against out-of-state commerce if it protectslocal economic interests at the expense of out-of-state competitors.

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necessary to important government interest

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If a state regulation is facially discriminatory, then the regulation may be upheld ifthe state can establish that an important local interest is being served, and that noother nondiscriminatory means are available to achieve that purpose.

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undue burden on interstate commerce

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A state regulation that is not discriminatory may still be struck down asunconstitutional if it imposes an undue burden on interstate commerce. Thecourts will balance the objective and purpose of the state law against the burdenon interstate commerce and evaluate whether there are less restrictivealternatives.

If the benefits of the state law are grossly outweighed by the burdens on interstatecommerce, then even nondiscriminatory regulation may be struck down.

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procedural due process

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The Due Process clause of the 14th Amendment provides that no state shall deprivea person of life, liberty or property without due process of law. The concept offundamental fairness lies at the heart of this right, and includes an individual’sright to be notified of charges or proceedings against him and the opportunity tobe heard at those proceedings.

Due process also entitles a person to a fair decision maker and that the processaddress injury that results from an intentional governmental act.

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amount of process due

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The Court considers three factors in determining the amount of process that isdue: the private interest affected, the value of additional safeguards, and theburden or cost of additional process

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substantive due process

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The guarantee of substantive due process is based upon the idea that laws shouldbe reasonable and not arbitrary.

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substantive due process standard of review

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The standard of review in substantive due process cases is generally twofold: agovernmental action that infringes upon a fundamental right is subject to strictscrutiny. Fundamental rights include the right to vote; the right to travel, the rightto privacy, and the right to possess a firearm.

Under strict scrutiny, a law interfering with a fundamental right will generally beupheld only if it is necessary to achieve a compelling governmental interest. If anon-fundamental right is infringed upon, then there need be only a rational basisfor the regulation. Under this test, the law must be rationally related to alegitimate state interest.

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equal protection

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The Equal Protection clause of the 14th Amendment provides that no state shalldeny to any person within its jurisdiction the equal protection of the laws

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equal protection standards of review

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Courts will apply differing levels of review based upon the type of classificationinvolved. Strict scrutiny applies if a fundamental right or a suspect classification isinvolved. Intermediate scrutiny applies if gender or legitimacy is involved. All otherclassifications are subject to the rational basis test.

Under the strict scrutiny test, the law must be the least restrictive means toachieve a compelling governmental interest. Under the intermediate scrutiny test,the law must be substantially related to an important governmental interest.Finally, under the rational basis test, the law must simply be rationally related to alegitimate state interest.

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discriminatory intent

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To trigger strict or intermediate scrutiny, there must be discriminatory intent onthe part of the government, not simply a disparate effect. Legislation isdiscriminatory on its face if it creates distinctions between classes of persons by itsvery language. Legislation that is neutral on its face but is applied in adiscriminatory fashion will also demonstrate the requisite level of intent. Finally,legislation that is neutral on its face but has a disparate impact coupled withdiscriminatory motive will suffice.

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establishment clause

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When a governmental program shows preference to one religion over another, orto religion over non-religion, strict scrutiny applies. Courts apply a three-part test(the Lemon test) to determine whether the governmental action isunconstitutional.

A governmental action that benefits religion is valid if the law has a secularpurpose, the primary effect neither advances nor prohibits religion, and the lawdoes not result in excessive government entanglement with religion.

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free exercise clause

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The Free Exercise Clause of the 1st Amendment has been construed to include twofreedoms: the freedom to believe and the freedom to act. The degree ofprotection that individuals are afforded from governmental interference in religiondepends on whether religious belief or conduct is involved.

The freedom to believe in any religion or none at all is absolutely protected andcannot be restricted by law. Laws intentionally targeting religious conduct aresubject to the strict scrutiny test, but neutral laws of general applicability are onlysubject to the rational basis test.

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freedom of speech

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The 1st Amendment provides that Congress shall make no laws abridging thefreedom of speech. Freedom of expression is not absolute.

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expressive conduct

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A law regulating expressive conduct will be upheld if it is within the government’spower to enact, it furthers an important government interest, the interest isunrelated to suppression of ideas, and the burden on speech no greater thannecessary.

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overbreadth

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A statute is overbroad and therefore void if it burdens substantially more speechthan necessary to protect a compelling government interest. Overbroad statutesmay be challenged as “facially invalid” to prevent a chilling effect on protectedspeech

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vaguenuess

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A statute is void for vagueness if it fails to provide a person of ordinary intelligencewith fair notice of what is prohibited.

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prior restraints

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A restraint on speech in advance of its expression is invalid unless there isparticular harm to be avoided, and certain procedural safeguards are provided tothe speaker. Safeguards include narrowly drawn, reasonable, definite standards, apromptly sought injunction, and a prompt and final decision on the validity ofrestraint.

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time manner place restrictions

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While governmental regulation of the content of speech is severely constrained,governmental regulation of the time, place, and manner of speech is subject toless restriction.

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traditional/designated public forum

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Traditional public forums are those that are historically associated with expression,such as sidewalks, streets, and parks. A designated (or limited) public forum isone that has not historically been used for speech-related activities, but which thegovernment has opened for such use. If the forum is non-public, then theregulation must be viewpoint-neutral and reasonably related to a legitimategovernmental interest.

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content neutral regulation

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In either type of public forum, the government may impose reasonable restrictionson the time, place, or manner of protected speech, provided the restrictions arecontent-neutral as to both subject matter and viewpoint, are narrowly tailored toserve a significant governmental interest, and leave open ample alternativechannels for communication of the information.

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content based regulation

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In general, the government may regulate the content of speech only if theregulation is necessary to achieve a compelling governmental interest and isnarrowly tailored to meet that interest (strict scrutiny).However, the government may restrict speech on the basis of content if thespeech falls into one of the following historic and traditional categories—obscenity,subversive speech, fighting words, defamation, or commercial speech

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obscenity

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Sexy: must be erotic; appeal to the prurientinterest (gore and violence are not legally obscene)

Society sick: must be patently offensive to theaverage person in the society

· The societymay be the country as a whole, or a particular state or a major metropolitanarea

Standards: must be defined by the proper standardsfor determining what is obscene, not vague and/or overbroad

· Invalid law:tax on film displaying frontal nudity

Serious value: the material must lack serious value

· If materialhas serious value (artistic, scientific, educational, or political), it cannotbe held legally obscene

· This determinationis made by the court, not the jury, and it must be based on a nationalstandard, not a local

o Very objective