Constitutional Law Final

hope this helps

Textualism

a method of constitutional interpretation that relies on strictly the language used, not considering the framers intentions or the changing world

Originalism

a method of constitutional interpretation that looks into the framers intentions when drafting the constitution

Living Constitutionalism

a method of constitutional interpretation that sees the Constitution as a living document, therefore having an expanded scope that can encompass issues that didn’t exist at the time of ratification. Its biggest critique is that it gives the government too much power, and gives laws too much flexibility in their application.

Justiciability

Justiciability refers to the capability of a court to address a legal matter. It is grounded in Article III of the Constitution, which grants federal courts jurisdiction over "cases" and "controversies."

cases and controversy v. advisory opinion

Courts settle actual disputes, while advisory opinions offer guidance without resolving a specific case. Federal courts are not allowed to provide advisory opinions to maintain their role as impartial arbiters

What can cause a case to be non-justiciable?

Matters may be deemed non-justiciable if they involve political questions, lack standing, are not ripe, or have become moot

Standing

Standing refers to a party's legitimate interest in the outcome of a case. It is established by showing injury-in-fact, causation, and redressability. Injury-in-fact means a concrete and particularized harm suffered.

Injury-in-fact

an injury that is “concrete and particularized” and “actual or imminent”—not “conjectural” or “hypothetical”

Causation

There must be a causal connection between the injury and the conduct complained of so that the injury is fairly traceable to the defendant's challenged action and not the result of the independent action of some third party who is not before the court.

Redressability

Redressability means that the court will be able to do something to make up for or correct the injury(s) of the plaintiff.

Ripeness/Mootness

Ripeness refers to the readiness of a case for judicial review, while mootness concerns cases where the issues are no longer live or the parties lack a legally cognizable interest.

Political Question Doctrine

The political question doctrine holds that certain matters are beyond the reach of judicial review due to their inherently political nature. It developed to prevent courts from intruding into the domain of the political branches

Baker v. Carr vs. Ruch v. Common Cause Justiciability

Baker v. Carr involved justiciable issues related to the equal protection clause, while Rucho v. Common Cause concerned non-justiciable political questions regarding gerrymandering.

Is all Gerrymandering non-justiciable?

Not all gerrymandering cases are deemed non-justiciable. The U.S. Supreme Court has intervened under certain circumstances, as seen in Shaw v. Reno, where racial gerrymandering raised constitutional concerns.

Supremacy Clause

establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions

Necessary and Proper Clause

allows Congress the ability to make laws or to act where the Constitution doesn't give it authority to act

McCulloch v. Maryland

McCulloch v. Maryland enlarged Congress's powers by affirming the constitutionality of the Bank of the United States and establishing the principle of implied powers. It interpreted the Necessary and Proper Clause to mean that Congress has the authority to enact laws that are "necessary and proper" for carrying out its enumerated powers, even if not explicitly mentioned in the Constitution. Additionally, the case invoked the Supremacy Clause by asserting federal laws' supremacy over state laws, thus invalidating Maryland's attempt to tax the Bank of the United States, which was a federal entity.

Gibbons v. Ogden

Gibbons v. Ogden (1824) defined commerce and the Commerce Clause by expanding Congress's regulatory authority. In this case, Ogden held a New York State monopoly on steamboat operations, while Gibbons operated a competing line under a federal coasting license. The decision interpreted commerce broadly to include not just buying and selling but also channels of trade and instrumentalities. This interpretation granted Congress the power to regulate waterways, roads, steamboats, and trains.

Dormant Commerce Clause

The Dormant Commerce Clause, implicit in the Commerce Clause, prohibits states from passing laws that discriminate against or excessively burden interstate commerce. It restricts state power in areas regulated by the Commerce Clause. When a conflict arises between a federal law and a state law regarding interstate commerce, the federal law preempts the state law. The Supreme Court can strike down state laws violating the Commerce Clause, invoking the Dormant Commerce Clause.

Supreme Court Analysis of State Power in Interstate Commerce

a. The Cooley case upheld state power in matters of interstate commerce when the concern was wholly local and did not hinder the national market.

b. State laws that do not create protectionist barriers to interstate commerce are upheld. For instance, in Dean Milk Company v. City of Madison (1951), the Court ruled against a local ordinance favoring in-state businesses.

c. If a state law discriminates against interstate commerce on its face, it's per se unconstitutional unless the state has a compelling reason, as seen in Maine v. Taylor (1987).

Extraterritoriality

Extraterritoriality refers to the application of state laws beyond its borders, which can violate the Dormant Commerce Clause if it affects interstate commerce.

Taxing and Spending Power

Article I, Section 8, Clause 1 grants Congress the power to tax and spend for the general welfare. "General welfare" encompasses the well-being of the nation as a whole. Taxes must be uniform, meaning they must be applied equally across similar situations.

Limits on taxing powers include prohibitions on taxing exports and taxes that violate fundamental rights.

Taxes must serve the legitimate purpose of raising revenue and not merely disguise regulations. In Sebelius, the penalty for not obtaining health insurance under the Affordable Care Act was upheld as a tax because it was not overly coercive and would generate significant revenue.

Sheet and Tube v. Sawyer (1952)

In Youngstown Sheet and Tube v. Sawyer (1952), the decision defined the circumstances under which executive power could be limited. Justice Jackson's concurrence introduced a three-part framework for evaluating the constitutionality of presidential actions based on congressional approval levels.

1. If a president acts with express or implied authorization from Congress, his authority is at its maximum, and his action is presumptively constitutional.

2. If a president acts in the face of congressional silence, known as the "zone of twilight," the extent of presidential power is uncertain, requiring judges to decide based on the demands of the situation.

3. If a president acts in defiance of Congress or when executive action contradicts Congress's will, the president's power is at its lowest ebb, and his action is presumptively unconstitutional.

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; of abridging the freedom of speech.

Religion (in terms of 1st Amendment)

1. Is there belief in a Supreme Being or something else that is at the center of one’s life

2. Is there a moral code beyond what is subjective?

3. Is it associational

4. Is it sincerely held religious belief?

Kozy Kitten Cat Food is not religion

Establishment Clause

prohibits the government from making any law “respecting an establishment of religion - some people interpret this to mean that church and state should be separated/minimally intertwined, others are non-preferentialists - meaning that as long as one religion is not preferred over another then it is okay

Lemon Test (Establishment Clause)

The Lemon test came out of the Lemon v. Kurtzman case of 1971.

In that case, the state government provided financial assistance to the religious schools through textbooks, instructional materials, and financing of a portion of secular teachers’ salaries. The Court applied a three-prong test to determine if the aid violated the Establishment Clause.

1. Is the purpose of the legislation secular?

2. Does it have a principal or primary effect that either inhibits or promotes religion?

3. Does it involve an excessive entanglement with religion?

In light of the Kennedy v. Bremerton and Carson v. Makin cases, it is safe to assume that the test has been overruled, however many decisions like Edwards v. Aguillard, requiring the teaching of creationism along with evolution and Lee v. Weisman, religious prayer at public high school graduation, that were made applying a Lemon test, have not been overruled.

Criticism: the Lemon test is excessive entanglement with religion, so the Lemon tests fails the Lemon test

Current interpretation of Establishment Clause

The current understanding, per Carson v. Makin and Kennedy v. Bremerton, two recent Roberts court decisions, from 2022, apply a test rooted in tradition, history, and original understanding. Both of those decisions, which also include issues related to free speech and free exercise of religion, provide for far less separation between church and state and acknowledge a tradition of allowance for greater role of religion in the public sphere.

More Establishment Clause Topics

• government can’t set up religious institutions pass laws that aid religions, or prefer one religion over another

• government can reimburse parents for transportation costs to religious schools because money was going to parents, not schools

• can’t withhold non-religious resources from religious schools

• religious institutions can be tax-exempt as they fit into the wider non-profit category (hospitals and charities)

• if a public forum is made available for secular student groups it can be restricted if religious student groups want access

• a public school facility could be used in the evening by a religious group

• too much association with prayer not allowed (moment of silence)

• prayer delivered at graduation violates the Establishment Clause because it promotes religion

• Town meetings can begin with a prayer because it is more out of tradition + less risk for coercion outside of the school setting

• if a religious scene is motivated by the endorsement of religion then it is not allowed, however, if there are no religious considerations it could be allowed

• The government may place a religious symbol on the grounds.

  It was one among many secular displays and monuments. It was not so noticeable. It was deemed a passive symbol.

• The Court said that in cases that involve religious symbols in government

  property that have long standing, the presumption should be to continue to maintain them.

Free Exercise Clause

Protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest

1. Holding religious beliefs – The law cannot compel a person to believe something in opposition to sincerely held religious beliefs. There is almost absolute protections against such government compulsion.

2. In profession of religious beliefs – not as absolute as beliefs, but religion is afforded the greatest protection of all forms of speech.

3. In religious conduct – The state with a compelling reason and a policy that is narrowly tailored to achieving that compelling reason or a legitimate interest under certain circumstances can prohibit religious conduct that is against policy.

The greatest protection is extended to matters involving religious beliefs

Religious Conduct

The state with a compelling reason and a policy that is narrowly tailored to achieving that compelling reason or a legitimate interest under certain circumstances can prohibit religious conduct that is against policy.

Free Speech Clause

Remember that although the First Amendment mentions Congress by the first half of the twentieth century, the Supreme Court began to interpret the free speech clause as pertaining to state and local governments as well. It interpreted the Fourteenth Amendment Dues Process clause: “nor shall any State deprive any person of life, liberty, or property, without due process of law” as incorporating the First Amendment Free Speech Clause.

Content Based Restriction

this kinda of restriction is triggered by the substance or content of the message that is conveyed - this is looked at under strict scrutiny because the censorship is bad (ie. school banned all speech in school that criticized the president) - To determine if a regulation is content-based, the Court will look at whether “on its face [it] draws distinctions based on the message a speaker conveys.” (motive not relevant)

Content Neutral Restriction

this type of restriction doesn’t have anything to do with the content of the speech (ie. banning speech in school involving current events)

Strict Scrutiny (in first amendment issues)

1. Compelling interest

2. Narrowly tailored

3. ample alternative avenues

Secondary Effects Doctrine

In the Renton v. Playtime Theaters, Inc., 1986 case. a city passed an ordinance prohibiting motion picture theaters showing sexually explicit films from operating within 1000 feet of any residential zone, multi-family dwelling, park, church or school. On its face, it looks like a content-based regulation. The Supreme Court determined it was content-neutral because the city was seeking to address secondary concerns like drug use and crime. The Court created the “secondary effects” doctrine.

Time, place, and manner restrictions

“Time, place and manner restrictions” on speech are content neutral. These are based on the circumstances under which expression takes place. They are not based on the identity or the subject or message of the speech.

Free Speech Clause and Incitement of Illegal Activity

• clear and present danger can be restricted (fire in a movie theater)

• Brandenburg test - speech can be restricted that advocated for unlawful conduct if there is imminent hard, a likelihood that the speech will produce illegal action, and intent to cause the illegal activity

• fighting words - minimal value so can be restricted, they must be likely to arouse immediate and violent anger from the person to whom the words were addressed (this had only been used once)

• offensive/hate speech mostly allowed if not directed to a specific group

• true threats or political hyperbole, if the threat is would be considered a threat by a reasonable person then it can be restricted

• offensive language allowed, because it can contain emotive messages

Free Speech in Schools

• students still have (limited) free speech rights in school, as long as the content of speech doesn’t substantially interfere with the functioning and discipline of the school

• schools can restrict vulgarity

• if something bears the emblem or imprimatur of the school the school can restrict the speech

• outside of school, schools don’t have latitude to restrict speech

Government Compelled Speech

Government Compelled Speech would have to pass a strict scrutiny test if it was determined it was pure speech and not just the regulation of conduct, where the speech was only incidental.

Obscenity and Indecency

The regulation and restriction of indecent speech is allowed:

a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest. . .

b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

(violence is not obscenity)

Defamation

Defamation is one of the categories of speech, along with fighting words, obscenity, and intentional imminent advocacy of likely unlawful conduct, that is unprotected under the Free Speech Clause.

Defamation is generally defined as speech that

(1) damages a party’s reputation in the community,

(2) is of and concerning the plaintiff, and

(3) was published to at least one person other than the plaintiff. Publication can be in oral or written form. Libel is the written form of defamation, and slander is the spoken form of defamation.

• defamation can’t be an opinion

• actual malice needed

Public Officials

“those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” The Court also described the public official as one who “would invited public scrutiny and discussion of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees.”

• not al govt. employees are public officials

• public figures, anybody who thrusts themselfs into the spotlight

Actual Malice Standard

The reckless disregard for truth or falsehood can also be inferred, if there is evidence the defendant should have known the statements were false. If a story is fabricated, is the product of imagination, or if the defendant’s allegations are so inherently improbable that only a reckless man would have put them into circulation, or if there are obvious reasons to doubt an informant’s veracity, then actual malice can be present.

Defamation of Private Individuals

Private individuals only have to establish ordinary negligence in proving defamation. One arrives at the conclusion that the ordinary negligence proof is applied by a process of elimination. Is the plaintiff a public official, a public figure, a limited-purpose public figure, or a private individual seeking punitive or presumed damages (without proving actual harm) on a matter of public concern? If the answer is no to all of those, the plaintiff need not establish actual malice.

Commercial Speech

1) an advertisement

2) whether it mentions a specific product

3) whether the speaker had an economic motivation for the communication.

when is it allowed to limit commercial speech?

1) illegality or misleading representations: To come under the cover of the Free Speech Clause, the speech must involve legal activity and not be misleading.

2) Substantial government interest: Does the government have a substantial interest in regulating that speech?

3) The Regulation must directly advance that substantial government interest.

4) The regulation must not be more extensive than necessary.

Prior Restraint

When the government regulation suppresses the speech before it is uttered: Government securing an injunction to prevent a newspaper article from being printed and disseminated. - very high bar, ie related to national security

Symbolic Speech

Every speech has some conduct in it: holding a meeting, or planning a rally

• speech must not be incidental to conduct, is the speech is incidental then the conduct (and therefore speech) can be restricted

If the conduct has both speech and non-speech elements in it, the Court applies a four-part test: for evaluating whether the law is in violation of the First Amendment Free Speech Clause”

a. Is the regulation within the Constitutional power of Government?

b. Does the regulation “further an important or substantial governmental interest?

c. Is the government interest motivating the regulation unrelated to the suppression of free expression?

d. Is the incidental restriction on alleged First Amendment freedoms greater than is essential to the furtherance of the governmental interest?

Freedom of Association

The Court has carved out of the interpretation of the First Amendment a protection for Freedom of Association from the language: “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” NAACP v. Alabama ex rel. Patterson, 1958. Freedom of association also emanates from the Free Speech Clause, since speech is made more effective when people band together to exercise speech rights. People worship in groups, so there is also connection of association to the free exercise clause.

Boy Scouts of America v. Dale, 2000: The Supreme Court found that an anti-discrimination statute violated the Boy Scouts’ expressive association rights when it refused to allow a leader who was openly gay. The Court accepted that the admittance to a leadership position in the Boy Scouts of Dale contributed to undermining what was integral to the Boy Scouts’ mission.

Due Process

The Due Process Clauses of the Constitution can be found in the Fifth and Fourteenth Amendments, respectively. The Due Process Clause of the Fifth Amendment was originally applied exclusively to the federal government. The Due Process Clause of the Fourteenth Amendment textually protected against deprivation of life, liberty, and property without due process of law by the states. There are two categories of protected due process rights: procedural and substantive. Procedural rights you will discuss in Criminal Procedure. They are broadly those constitutional rights that a person has in the criminal justice system. Liberty interests can be taken away in the form of incarceration, but only after due process has been provided, only after one’s day in court. Substantive due process rights are very controversial. Justice Thomas, for example, has long been critical of the understanding that there are fundamental liberty interests or rights that should be interpreted to flow from an interpretation of the Due Process Clauses of the Fifth and Fourteenth Amendments.

Due Process Rights

• marital rights

• privacy and bodily autonomy rights

• right to contraceptives

• freedom to contract

Equal Protections Clause

The Equal Protection Clause protects against the state depriving an individual of equal protection of the laws. It has been incorporated through the Due Process Clause of the Fifth Amendment to also apply to the federal government. The Supreme Court has found a three tier system for evaluating equal protection claims:

1. Suspect Classifications, which include classifications based on race, national origin, and alienage are evaluated under a strict scrutiny analysis. The Court looks to see if the government has a compelling interest for its statute and if the statute is narrowly tailored to achieve that compelling interest. Statutes that impinge on fundamental rights like marriage and parental consent are also evaluated under a strict scrutiny analysis.

2. Quasi-suspect Classifications are based on gender and legitimacy. The government must show an important or substantial interest and that the statue is substantially related to achieving that interest.

3. Non-suspect classifications are all others. They would include socioeconomic class, age, disability, sexual orientation, profession, among others. The Court applies a rational basis standard. There must be a rational basis for a legitimate interest. It’s a very low

Prima Facie Case

1. Proof of facial discrimination. From the text of the statute, the plaintiff can establish there is discrimination on the basis of a suspect or quasi-suspect classification.

2. Proof of discrimination by design: a. there is disparate or disproportionate impact b. there is intent to discriminate. Intent can be proven by evidence from legislative record, comments by legislators, inferred from context or established by inference from application.