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22 Cards in this Set
- Front
- Back
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What are the three steps to a Basic Con Law Question?
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I. Is there a valid Case or Controversy?
II. What Kind of Constitutional Issue is raised? III. Are any Individual Rights affected? |
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What are the considerations for a valid Case or Controversy?
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RAMPSE
- Ripeness – Immediate threat of harm - Abstention – No standing for unsettled state law, Will not enjoin state criminal proceeding - Mootness – Live, Except: Class Action, Repetition evading review - Political Question – Const delegates to another branch - Standing Injury, Causation, Redressability - Eleventh Amendment – Sovereign States |
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What are the areas of Constitutional Issues we may see on the test?
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1. Separation of Powers
2. Federal Legislative Action 3. State Action - State passing a law |
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What should you raise in a Separation of Powers question?
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1. Judicial – See Case or Controversy Card. Defines limitation of power.
2. Executive – Foreign and Domestic Powers, Privileges. Act where doesn't conflict with congress. 3. Legislature – See legislative action card |
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What are the basic conerns for Legislative Action?
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1. Source of Power
. .a. Commerce, tax, Spend, Taking, Citiz, Civil Rights, Foreign Affairs, War, Elections 2. Necessary and Proper 3. 10th Amend |
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What are the basic concerns for State Laws?
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1. Preemption
2. DCC . .a. Discrimination . . . .i. Necessary to achieve an important state interest - Intermediate . . . .ii. Market Participant Doctrine . . . .iii. Favors a local gov entity . .b. Undue Burden on IC 3. P and I . .a. Art IV – Economic and Civil Liberties . .b. 14th – Travel Only . .c. Burden, substantial justification no less restrictive means - Strict |
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What is the list of Individual Rights?
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SSTRREPS
1. State Actor 2. Speech 3. Taking 4. Religion 5. Retroactive Legislation 6. Equal Protection 7. Procedural Due Process 8. Substantive Due Process |
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State Action / Actor
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State Must be the one who caused the act. Situations where private action qualifies as state action:
1. Public Function Doctrine . .a. Traditional and exclusive prerogative of the state 2. Significant State Involvement . .a. Entanglement . .b. Affirmatively facilitates, encourages, or authorizes acts of discrimination |
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What is the basic steps of a Speech analysis?
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1. Prior Restraint – Preventing Speech before it occurs, Narrowly tailored to achieve some compelling interest
. .a. Narrow, reasonable, definite . .b. Injunction is prompt . .c. Prompt final determination 2. Vagueness – No reasonable notice – chills 3. Over breadth – Regulating a substantial amount of protected speech 4. Content – Narrowly tailored to achieve compelling gov interest 5. Content Neutral – Generally necessary state interest |
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What is the test for content based speech restrictions?
What are the basic categories of Unprotected Speech? |
Strict Scrutiny
1. Content – Narrowly tailored to achieve compelling gov interest / these are comp interests . .a. Imminent Lawless . .b. Fighting words - True Threats . .c. Obscenity . .d. Defamatory Speech . .e. Commercial Speech |
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What is Imminent Lawless Action?
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a. Imminent Lawless Action
. .i. Clear and present danger – imminent illegal conduct likely . .ii. Speaker intended to cause |
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What is the test for Obscenity?
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c. Obscenity
. .i. Appeals to the prurient interest – local . .ii. Patently offensive – local . .iii. Lacks serious (literary, artistic, political, scientific) – natn’l |
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What are the concerns of Defamatory Speech?
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See Torts Cards
d. Defamatory Speech . .i. Public Concern - Then need Falsity and Fault . . . .1. Public official or figure - Fault must be Malice . . . .2. Private Figure - Fault must be negligence. |
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Commercial Speech
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e. Commercial Speech
. .i. No right to: Unlawful, misleading, fraudulent . .ii. But even true statements can be limited – Intermediate Scrutiny . . . .1. Substantial gov interest . . . .2. Directly advances |
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What are the requirements of Content Neutral Speech Regulations?
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Content Neutral – Import gov interests, not burden more speech than neces
a. Time Place Manner . .i. Public Forum – TPM if: . . . .1. Content Neutral . . . .2. Narrowly tailored to serve significant gov int - IS . . . .3. Leave open alternative channels . .ii. Non-Public – . . . .1. Viewpoint Neutral . . . .2. Reasonably related to a legitimate purpose - RB b. Symbolic Expression - TPM c. Freedom of Association . .i. May not prohibit nor unduly burden. Strict Scrutiny |
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What is the analysis for a Taking?
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1. Public Use
. .a. Liberally construed 2. Just Compensation . .a. Fair Market Value . .b. Taking v. Regulation . . . .i. Physical Taking is met if even a part of the land is taken . . . .ii. If regulatory must deny ALL econ value . . . .iii. Temporary restriction uses balancing |
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What are the issues with Religion?
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1. Establishment Clause
. .a. Secular Purpose S . .b. Secular Effect E . .c. No Excessive Entanglement X 2. Free Exercise Clause . .a. Regulating general conduct with incidental effect on religion |
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What is Retroactive Legislation?
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1. Impairment of Contract
. .a. Private Contract – Intermediate . . . .i. Important and legitimate gov purpose . . . .ii. Reasonable and narrowly tailored . .b. Pubic Contract – Stricter 2. Ex Post Facto Laws . .a. Criminal Offense . .b. Makes something in past a crime, lowers the evidence needed, greater punishment 3. Bills of Attainder . .a. Legislative acts that inflict punishment on individuals |
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What are the tests for Equal Protection?
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1. Strict Scrutiny – (Race, Alienate, Fundamental Right)
. .a. Necessary to achieve compelling gov interest 2. Intermediate – (Gender, Illegitimacy) . .a. Substantially related to an important gov purpose 3. Rational Basis – (Wealth, Age, Others) . .a. Rationally related to a legitimate gov purpose |
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Procedural Due Process
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Fair process (notice/hearing) is required for a government to individually take a person’s “life, liberty, or property”
1. Liberty . .a. Loses a significant freedom to act . .b. Denied a freedom under the constitution or statute 2. Property . .a. Legitimate claim or entitlement . .b. Reasonably expectation of continued benefit 3. Type of Process – Balance . .a. Importance of interest . .b. Value of procedural safeguards . .c. Government interest |
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Substantive Due Process
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Same as EP
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What are the basic Fundamental Rights?
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1. Right to Privacy
. .a. Marriage . .b. Use of Contraceptives . .c. Abortion . . . .i. Pre-Viability – No undue burdn . . . .ii. Viability – Health and safety exception . .d. Family . .e. Sexual Conduct 2. Right to Vote . .a. Residence, age, and citizenship(50 days) are RB. . .b. One person one vote . .c. Candidates – Age = RB, most else is SS. 3. Right to Travel . .a. International travel = RB 4. 1st Amendment |
