constitutional law

Constitutional Law 

• a body of principles and rules either explicitly stated in the United States Constitution and those of the individual states 

• Federalism

• the authority to govern is split between a single, nationwide central government and several regional governments

• Doctrine of Implied Powers

• Powers that are not stated in the Constitution but that are necessary for Congress to carry out other, expressly granted powers

• Necessary and proper clause

• allow Congress to take actions not just specifically listed in the Constitution, but those powers that are reasonably related to carrying out the specifically listed powers

• Commerce clause

• allow Congress to regulate not only interstate commerce, but anything that has an effect on interstate commerce

The Bill of Rights

first ten amendments, very broad to leave debate determining what’s constitutional

State Action Requirement 

• a court-imposed requirement that most constitutional protections apply only if a governmental entity is involved

Doctrine of Selective Incorporation 

• constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment.

First Amendment

• pure speech and symbolic speech, political contributions, commercial speech

• Pure speech

• The use of spoken words to communicate information

• Symbolic speech

• The use of physical actions, rather than spoken or written words, to express a point of view

Political contributions

• Public funding of political campaigns

Commercial speech

advertising that communicates information about nature, availability, and prices for various commercial products and services 

Speech not protected by first amendment

obscenity, fighting words, threats, hate speech

Obscenity

• written and pictorial materials relating to sexual activities that are not protected by the First Amendment; have no “socially redeeming value”

3 part test for obscenity

1. The average person would find that the work appeals to prurient interests 

2. The work describes, in a patently offensive way, sexual conduct specifically defined 

3. The work “lacks serious literary, artistic, political, or scientific value” 

• Fighting words

• words generally expressed to incite hatred or violence from target 

• Baccala

• personal epithets

• True threat

• would cause the average person to be afraid of imminent bodily harm

• Hate speech

• communication that involves the expression of hatred for, or violence against, a specific minority group or other protected class of people 

why does context matter for first amendment

• Restrictions on free speech often target speech that is likely to provoke a disintegration of law and order

how are limitations imposed on 1st amendment

balancing tests, time and place restrictions, restrictions must be content neutral

overbreadth

• A statute will be struck down if it prohibits activities that are constitutionally protected (burning a cross.)

vagueness

• A statute will be struck down as void if it is ambiguous ( law criminalizing strolling and wandering)

• Free Exercise of Religion Clause

• Clause in the First Amendment that prohibits the gov’t from taking actions to prevent people from adopting any type of religious beliefs or following religious practices that do not violate general, religiously neutral laws

• Establishment of Religion Clause

• Clause in the First Amendment that restricts the types of actions the gov’t can take to recognize and support religious groups and religious principles

5th amendment

• “No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .”

14th amendment

• “. . . Nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .” 

• Procedural Due Process

• The requirement that governments follow certain procedures when seeking to deprive people of life, liberty, or property 

• Substantive Due Process

• The requirement that governments not deprive anyone of life, liberty, or property where the law being violated is found to be arbitrary or unreasonable 

how can the government do procedural due process

• includes notice, opportunity to be heard, neutral fact-finder, confrontation of witnesses, jury trial, appeal — the more serious the deprivation, the more process you are due (speeding ticket v felony)

substantive due process purpose

• Requires legislation to be fair and reasonable in content (right to privacy, contraceptives)  

equal protection under 14th amendment

• “Nor shall any State . . . deny any person within its jurisdiction the equal protection of the laws.”

equal protection claim

plaintiff must establish that the state, through the challenged statute, affords different treatment to similarly situated groups of individuals; and the statute does not withstand scrutiny under the equal protection clause

equal protection tests

rational basis test (standard scrutiny), intermediate scrutiny, strict scrutiny

rational basis test (standard)

• Is the law being challenged reasonably related to achieving a legitimate government purpose? (government>plaintiff) ex: claimed discrimination on basis of age

strict scrutiny (compelling interest test)

• (1) Is the law being challenged necessary to achieve a compelling government interest? (2) Is the law being challenged the least restrictive means available? (plaintiff > government)

suspect class elements

• Is the group easily identifiable?

• Can a member of the group easily change one’s identity?

• Is the a long history of discrimination against members of that group? (race, religion)

intermediate/heightened scrutiny

• Is the law being challenged substantially related to an important governmental objective? (applies in sex discrimination cases)

scale of equal protections tests

3 - rational basis, 2 - intermediate scrutiny, 1 - strict scrutiny

types of discrimination

race (strict scrutiny), sex (intermediate), sexual orientation (maybe intermediate) age (rational basis), economic (rational basis)

affirmative action

• actions taken by governments and private entities to increase the number of people in selected groups (usually race or sex) attending particular schools, being employed in specific corporations or fields of endeavor, or participating in various activities