Constitutional Law

Studicata Attack Outline

What is the 11th Amendment?

It prohibits:

1. Citizens of one state or foreign country from suiting another state, AND

2. Suits in federal court against state officials for violating state law

What are common exceptions to the 11th Amendment?

1. Consent

2. Injunctive Relief

3. Individual Damages

4. Congressional Authorization

What are the three elements that must be established to have standing?

1. Injury in Fact- Injury must be concrete

2. Causation- Injury must be traceable to challenged action

3. Redressability- It must be likely that court decision will redress an injury suffered by plaintiff

What are three exceptions where one can assert the rights of others to obtain standing?

1. 3rd party can’t assert their own rights

2. There is a special relationship between plaintiff and 3rd party

3. Plaintiff’s injury adversely affects the plaintiff’s relationship with the third party

When can an organization bring an action on behalf of its members?

1. Its members would have standing to sue in their own right, and

2. the interests they seek to protect are germane to the organization's purpose.

What is ripeness?

A case is not ripe if it is too early for the court to decide because the harm has not happened yet or is too speculative.

What is mootness?

A case is not ripe if it is too early for the court to decide because the harm has not happened yet or is too speculative.

What are three main exceptions to mootness?

1. Capable of repetition, yet evading review – The issue is likely to recur but is too short-lived to be fully litigated before it ends (e.g., pregnancy).

2. Voluntary cessation – The defendant stops the challenged behavior but is free to resume it at any time.

3. Collateral consequences – Some effects of the challenged action continue even after the main issue is resolved (e.g., criminal conviction consequences).

What is the necessary and proper clause?

A clause in the US Constitution that grants Congress the authority to make all laws which shall be necessary and proper for carrying into execution its enumerated powers.

What are the two requirements for a tax to be upheld by Congress?

A tax must be:

1. uniform across states and

2. must raise revenue for the federal government.

What is the commerce clause?

A clause in the US Constitution that gives Congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. It serves as a basis for federal regulation and has been interpreted broadly to encompass a wide range of economic activities.

What are the three requirements for something to fall under the commerce clause?

1. Involving interstate commerce, 2. Affecting more than one state, and 3. Instrumentalities of interstate commerce

What are the four main domestic powers of the president?

The four main domestic powers of the president include the power to veto legislation, issue executive orders, appoint federal officials, and grant pardons.

Give some examples of exclusive federal powers?

Exclusive federal powers include the power to regulate immigration, establish foreign relations, coin money, and declare war.

Give some examples of exclusive state powers?

Exclusive state powers include the power to regulate intrastate commerce, conduct elections, establish local governments, and enact laws concerning education.

What is the dormant commerce clause?

States are free to regulate a particular area of interstate commerce if Congress hasn’t enacted legislation if the action does not:
1. Discriminate against out-of-state commerce

2. Unduly burden interstate commerce; OR

3. Regulate wholly out-of-state activity

What is the supremacy clause?

The Supremacy Clause establishes that the Constitution and federal laws take precedence over state laws within the United States. It ensures that federal law is the supreme law of the land, meaning state laws that conflict with federal laws are invalid.

What is the difference between the due process clause of the 5th and 14th amendments?

The difference lies in their application; the 5th Amendment's due process clause applies to the federal government, while the 14th Amendment's due process clause applies to state governments, ensuring that both must respect individual rights and fair legal processes.

What is the due process clause?

The due process clause is a constitutional provision found in the 5th and 14th Amendments that guarantees individuals the right to fair legal proceedings and prohibits the government from depriving any person of life, liberty, or property without due process of law.

Can negligent deprivation of rights violate the due process clause?

• No

  • A due process violation requires at least deliberate or reckless conduct, not accidental or careless behavior.

What is the difference between procedural and substantive due process?

Procedural due process relates to the methods and procedures used to enforce laws, ensuring fair treatment during legal proceedings, while substantive due process involves the rights and principles that protect individual freedoms from government interference.

What are the three parts of the balancing test that determine procedural due process?

The three parts include: the private interest affected; the risk of erroneous deprivation through the procedures used; and the government's interest in using the current procedures.

What is the definition of strict scrutiny?

A law will be upheld under strict scrutiny only if:

1. It is necessary (narrowly tailored)

2. To achieve a compelling government interest, and

3. It is the least restrictive means of achieving that interest.

Who bears the burden of proof of strict scrutiny?

The government bears the burden of proof to show that the law serves a compelling interest and is narrowly tailored to achieve that interest.

Give three examples of strict scrutiny

Examples include laws that discriminate based on race, laws that infringe on fundamental rights such as voting, and laws that impose restrictions on free speech.

Define intermediate scrutiny

A law will be upheld under intermediate scrutiny if:

1. It serves an important government interest, and

2. It is substantially related to achieving that interest.

Who bears the burden of proof in intermediate scrutiny?

The government bears the burden of proof to demonstrate that the law serves an important interest and is substantially related to achieving that interest.

Give three examples of intermediate scrutiny

Examples include laws that discriminate based on gender, laws that regulate commercial speech, and laws that impact parental rights.

What is rational basis?

A law will be upheld if:

1. It is rationally related

2. To a legitimate government interest

Who bears the burden of proof related to rational basis review?

The burden of proof is on the challenger to demonstrate that the law is not a rational means to achieve a legitimate government interest.

What are three examples of rational basis?

Examples include laws addressing economic regulation, laws prohibiting certain non-marital relationships, and laws imposing age restrictions.

What is the equal protection clause?

The Equal Protection Clause is a provision in the Fourteenth Amendment of the United States Constitution that prohibits states from denying any person the equal protection of the laws, ensuring that individuals in similar circumstances are treated equally.

What is the difference between suspect classification, quasi-suspect classification and other classifications with respect to the equal protection clause?

The difference lies in the level of scrutiny applied by the courts. Suspect classifications receive strict scrutiny, requiring a compelling state interest, while quasi-suspect classifications receive intermediate scrutiny, necessitating an important state interest. Other classifications are reviewed under the rational basis standard, focusing on a legitimate state interest.

What is the takings clause?

The Takings Clause is a provision in the Fifth Amendment of the United States Constitution that states private property cannot be taken for public use without just compensation. It protects property owners from government seizure without appropriate remuneration.

What are the three factors used to determine whether a “taking” of property has occurred?

The three factors include the economic impact of the government action on the property owner, the extent to which the action interferes with reasonable investment-backed expectations, and the character of the governmental action.

What is overbreadth?

A regulation is considered overbroad if it restricts more speech than necessary, thereby infringing on First Amendment rights. This means the regulation encompasses a wide range of protected speech, leading to potential unconstitutional applications.

What is vagueness?

A regulation is considered vague if it fails to clearly define what constitutes prohibited conduct, making it difficult for individuals to understand their rights or obligations. This can lead to arbitrary enforcement and infringements on due process.

What is content-based regulation?

Content-based regulation is a law that restricts speech based on the subject matter or content of the message, often requiring strict scrutiny to ensure it does not violate First Amendment protections.

What is are the two main requirements for content-neutral regulations?

1. Significant Government Interest

2. Narrowly Tailored & Leave Open Alternative Channels

Is the government able to regulate time, place and manner?

Yes, but it depends on whether the forum is public or nonpublic

Define public forum, nonpublic forum, and limited public forum?

A public forum is a government property that is open to public expression, such as parks or streets; a nonpublic forum is government property not generally open for public communication, like military bases; and a limited public forum is a forum created by the government for specific types of speech, like municipal meeting rooms.

What are the three requirements for regulating speech in a public forum?

1. Content Neutral 2. Narrowly tailored to serve an important government interest 3. Leave open adequate alternative channels for communication.

What are the two requirements for regulating speech in a non-public forum?

1. Viewpoint Neutral, and

2. Reasonably related to a legitimate government purpose

What are the five types of unprotected speech?

1. Inciting imminent lawless actions

2. Fighting words

3. Obscenity

4. Defamatory Speech

5. Some commercial speech

What are fighting words?

Fighting words are a narrow category of unprotected speech under the First Amendment. They are:

"Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
— Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Is obscene speech protected under the 1st amendment?

Obscene speech is not protected under the First Amendment. To be considered obscene, it must meet the Miller test, which evaluates

1. whether the material breaks community standards,

2. depicts sexual conduct in a patently offensive way,

3. and lacks serious literary, artistic, political, or scientific value.

Give examples when commercial speech would not be protected under the 1st amendment

Commercial speech is not protected under the First Amendment if it is misleading, false, or promotes illegal activity. This includes advertising that contains deceptive claims or encourages actions like drug sales or false representations.

What is the free exercise clause?

The Free Exercise Clause is part of the First Amendment that prohibits the government from interfering with individuals' rights to practice their religion freely. It protects religious beliefs and, in some cases, certain religious practices from governmental restriction.

What is the establishment clause?

The Establishment Clause is part of the First Amendment that prohibits the government from establishing an official religion or unduly favoring one religion over another. It ensures the separation of church and state.

What are the three main reasons why a challenge to legislation under the Establishment clause may fail?

1. Has a secular purpose;

2. Has a primary effect that neither advances nor inhibits religion; and

3. Does not produce excessive government entanglement with religion