NY Bar Review Constitutional Law Overview

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW
NEW YORK COURSE CONSTITUTIONAL LAW

Professor Erwin Chemerinsky OVERVIEW OF ORGANIZATION I. II. III. IV. V. THE FEDERAL JUDICIAL POWER THE FEDERAL LEGISLATIVE POWER THE FEDERAL EXECUTIVE POWER FEDERALISM
Limits on state and local government power
THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES
VI.
DUE PROCESS
Government cannot deprive of any life, liberty or property without due process of law
VII. EQUAL PROTECTION VIII. FIRST AMENDMENT

(33 questions on MBE. The mini review outline is good. Among common law questions on MBE, 15% federal judicial power. 20% federal legislator and executive powers. 20% federalism. 25% V, VI, VII. 20% first amendment.)
I.
THE FEDERAL JUDICIAL POWER

A. THE REQUIREMENT FOR CASES AND CONTROVERSIES 1. Standing. Standing is the question of whether the plaintiff is the proper party to bring a matter to the court for adjudication. (**) Justices ability doctrines a. Injury. Plaintiff has to allege and prove that he has been or imminently will be injured. i. Plaintiffs only may assert injuries that they personally have suffered. (a personally suffered injury) ii. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm. Tip: If MBE asks "which of the following p has the best standing?" look initially at the choices whether p has personally suffered personal injury. if there is more than one choices, then the correct answer will be the one who has suffered economic loss. b. Causation and redressability. The plaintiff must allege and prove that the defendant caused the injury so that a favorable court decision is likely to redress the injury. Supreme Court states that in order for Ps to have standing, Ps must show that the ruling would remedy the injury; must show the D is the cause of the harm. No third party standing. A plaintiff cannot assert claims of others, of third parties, who are not before the court. Exception**: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party.
c.
i.
close relationship: p can be trusted to adequately represent the interest of the third party. e.g. doctor/patient. Exception: third party standing is allowed if the injured third party is unlikely to be able to assert his or her own rights. e.g. criminal defendants have third party standing to raise the rights of perspective jurors to be free from discrimination in the jury selection. (usually jurors have no incentive to sue) Exception: associational standing (least tested): an organization may sue for its members, if ---the members would have standing to sue; the interests are germane to the organizations purpose; neither the claim nor relief requires participation of individual members d. No generalized grievances. The plaintiff must not be suing solely as a citizen or as a taxpayer interested in having the government follow the law. TIP: USUALLY THE MBE QUESTION WOULD SAY THE P IS SUING AS A "CITIZEN" OR "TAXPAYER". EASY TO SPOT THE ISSUE. Exception: taxpayers have standing to challenge government expenditures (ONLY MONEY) as violating the Establishment Clause. NOTE: VERY NARROW PRINCIPLE. TAXPAYER LACKS
ii.
iii.
STANDING TO CHALLENGE FEDERAL GOVERNMENT'S GRANT OF PROPERTY TO RELIGIOUS INSTITUTIONS. 2. Ripeness. Ripeness is the question of whether a federal court may grant 3
preenforcement review of a statute or regulation. TIP: THE RIPENESS QUESTION ALWAYS ARISES WHEN THERE IS A REQUEST FOR DECLARATORY JUDGMENT. THE FEDERAL COURT WILL GRANT JUDICIAL REVIEW IF THE FOLLOWING TWO CRITERIA ARE MET: a. The hardship that will be suffered without preenforcement review. NOTE: THE GREATER THE HARDSHIP IS, THE GREATER POSSIBILITY THAT THE COURT WILL GRANT JUDICIAL REVIEW. b. 3. The fitness of the issues and the record for judicial review.
Mootness. If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. (A PLAINTIFF MUST PRESENT A LIVE CONTROVERSY ON AN ON-GOING BASIS.) a. Exception**: wrong capable of repetition but evading review. E.G. A PREGNANT WOMAN CHALLENGING THE STATUTE OF ABORTION. (THE P CAN BE PREGNANT AGAIN AND SEEK ABORTION IN THE FUTURE.) b. Exception: voluntary cessation. IF THE P VOLUNTARILY PAUSES THE CASE, SO LONG AS THE P IS LEGALLY FREE TO RESUME THE CASE AT ANY TIME, THE CASE WILL NOT BE DISMISSED FOR MOOTNESS. c. Exception: class action suits. IF THE NAMED P'S CLAIM IS MOOT, A CLASS ACTION WILL NOT BE DISMISSED SO LONG AS ONE MEMBER OF THE CLASS HAS AN ON-GOING INJURY. 4
4.
The political question doctrine. The political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate. THE FOLLOWING CASES ARE NON-JUDICIABLE POLITICAL
QUESTIONS: a. b. The republican form of government clause. (ARTICLE IV) Challenges to the President's conduct of foreign policy. Challenges to the impeachment and removal process.
c.
B.
SUPREME COURT REVIEW 1. Virtually all cases come to the Supreme Court by writ of certiorari. THE SUPREME COURT HAS COMPLETE DISCRETION WHETHER TO HEAR THE CASE BY WRIT OF CERTIORARI. a. All cases from state courts come to the Supreme Court by writ of certiorari. All cases from United States courts of appeals come to the Supreme Court by writ of certiorari. c. Appeals exist for decisions of 3-judge federal district courts. NOTE: IT SKIPS FROM THE COURT OF APPEALS AND GOES DIRECTLY TO SUPREME COURT FOR REVIEW. THE SUPREME COURT IS REQUIRED TO HEAR THE APPEAL. d. The Supreme Court has original and exclusive jurisdiction for suits 5
b.
between state governments. 2. Generally, the Supreme Court may hear cases only after there has been a final judgment of the highest state court, of a United States Court of Appeals, or of a 3-judge federal district court. 3. For the Supreme Court to review a state court decision, there must NOT be an independent and adequate state law ground of decision. If a state court decision rests on two grounds, one state law and one federal law, if the Supreme Courts reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it. C. LOWER FEDERAL COURT REVIEW 1. Federal courts (and state governments) may NOT hear suits against state governments. ** The principle of sovereign immunity. i. The 11th Amendment bars suits against states in federal court. ii. Sovereign immunity bars suits against states in state courts or federal agencies. b. Exceptions: circumstances: i. Waiver is permitted. (NOTE: THE WAIVER BY THE States may be sued ONLY under the following
a.
STATE MUST BE EXPLICIT.) ii. States may be sued pursuant to federal laws adopted under 5 of the 14th Amendment. 6 Congress cannot authorize suits
against states under other constitutional provisions. iii. c. The federal government may sue state governments.
Suits against state officers are allowed. state officers may be sued for injunctive relief state officers may be sued for money damages to be paid out of their own pockets HOWEVER, state officers may NOT be sued if the state treasury will be paying retroactive damages
2.
Abstention. Federal courts may NOT enjoin pending state court proceedings. (RARELY TESTED)
II.
THE FEDERAL LEGISLATIVE POWER

A. CONGRESS' AUTHORITY TO ACT 1. There must be express or implied Congressional power. TIP: THERE IS NO GENERAL FEDERAL POLICE POWER. STATE LOCAL GOVERNMENTS HAVE THE POLICE POWER. EXCEPTION: CONGRESS HAS POLICE POWER TO LEGISLATE FOR MILITARY, FOR INDIAN RESERVATION, FOR FEDERAL LANDS AND TERRITORY, OR FOR THE DISTRICT OF COLUMBIA. 2. The necessary and proper clause. CONGRESS MAY CHOOSE ANY MEANS NOT PROHIBITED BY THE CONSTITUTION TO CARRY OUT ITS AUTHORITY. 3. The taxing/spending power and the commerce power **
a.
Congress may tax and spend for the general welfare TIP: IF THERE IS A QUESTION ABOUT CONGRESS' AUTHORITY TO ACT, "GENERAL WELFARE" COULD BE A CORRECT ANSWER ONLY IN EITHER TAXING OR SPENDING OR WHEN CONGRESS HAS THE POLICE POWER.
b.
The Commerce Power i) Congress may regulate the channels of interstate commerce. (THE PLACES WHERE COMMERCE OCCURS, E.G. THE HIGHWAYS, RAILROADS, THE INTERNET, ETC.) ii) Congress may regulate the instrumentalities (TRUCKS, PLANES, INTERNET, ETC.) of interstate commerce and persons or things in interstate commerce. iii) Congress may regulate activities that have a substantial effect on interstate commerce. (NOTE: CUMULATIVE IMPACT CAN BE A BASE FOR FINDING A SUBSTANTIAL EFFECT BY ECONOMIC ACTIVITY. HOWEVER, in the area of noneconomic activity, a substantial effect cannot be based on cumulative impact.)
4.
The 10th Amendment as a limit on Congressional powers. a. **Congress cannot compel state regulatory or legislative action.
Note: Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. b. Congress may prohibit harmful commercial activity by state governments. 8
5.
Congress power under 5 of the 14th Amendment. Congress may NOT create new rights or expand the scope of rights under 5 of the 14th Amendment. Congress may act ONLY to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations.
B.
DELEGATION OF POWERS 1. No limit exists on Congress ability to delegate legislative power to executive agencies or even to the judiciary. (NOTE: EVERY DELEGATION, NO MATTER HOW BROAD, HAS BEEN UPHELD SINCE 1937.) 2. Legislative vetos and line - item vetos are unconstitutional For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto.) The President must sign or veto the bill in its entirety. LEGISLATIVE VETO: CONGRESS ATTEMPTS TO OVERTURN AN EXECUTIVE ACTION WITHOUT BICAMERALISM OR PRESENTMENT. A LINE-ITEM VETO: WHERE THE PRESIDENT ATTEMPTS TO VETO PART OF THE BILL AND SIGN THE REST OF THE BILL. 3. Congress may NOT delegate executive power to itself or its officers. TIP: CONGRESS CAN GIVE AWAY ITS POWER BUT CANNOT TAKE OTHER'S POWER TO ITSELF.
III.
THE FEDERAL EXECUTIVE POWER

A. FOREIGN POLICY 9
1.
Treaties. Treaties are agreements between the United States and a foreign country that are negotiated by the President and are effective when ratified by the Senate. a. b. Treaties prevail over conflicting state laws. ** If a treaty conflicts with a federal statute, the one adopted last in time controls. c. If a treaty conflicts with the United States Constitution, it is invalid.
2.
Executive agreements a. Definition. An executive agreement is an agreement between the United States and a foreign country that is effective when signed by the President and the head of the foreign nation.
NOTE: EXECUTIVE AGREEMENTS DO NOT REQUIRE SENATE APPROVAL IN ORDER TO BE EFFECTIVE.
b. c.
Executive agreements can be used for any purpose. Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution.
[See chart on the following page]
10
CONSTITUTIONAL LAW CHART 1

TREATIES AND EXECUTIVE AGREEMENTS
CONFLICTS IS SENATE APPROVAL REQUIRED? CONFLICTS WITH STATE LAW WITH FEDERAL STATUTE WHICHEVER TREATIES YES TREATY CONTROLS EXECUTIVE NO AGREEMENT CONTROLS WAS ADOPTED LAST IN TIME CONTROLS EXECUTIVE AGREEMENTS FEDERAL STATUTE CONTROLS CONSTITUTION CONTROLS CONSTITUTION CONTROLS CONFLICTS WITH CONSTITUTION
11
3.
** The President has broad powers as Commander-in-Chief to use American troops in foreign countries. TIP: TO JUSTIFY NON-INTERFERENCE BY THE JUDICIAL POWER OF THE PRESIDENT'S USE OF TROOPS IN FOREIGN COUNTRY, BEST ANSWER: IT'S A POLITICAL QUESTION; SECOND BEST: BROAD POWERS AS COMMANDER-IN-CHIEF TO USE AMERICAN TROOPS IN FOREIGN COUNTRIES.
B.
DOMESTIC AFFAIRS 1. The appointment and removal power a. The appointment power i. The President appoints ambassadors, federal judges and officers of the United States. (NOTE: THE SENATE MUST APPROVE THE NOMINEE.) ii. Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts. (E.G. CONGRESS CAN VEST THE APPOINTMENT POWER OF INDEPENDENT COUNCIL IN THE LOWER FEDERAL COURTS.) iii. **Congress may NOT give itself or its officers the appointment power. b. The removal power. Unless removal is limited by statute, the President may fire any executive branch office. i. For Congress to limit removal, it must be an office where independence 12 from the President is desirable (E.G.
INDEPENDENT COUNCIL, SPECIAL PROSECUTOR ARE OK, BUT NOT CABINET) and ii. Congress cannot prohibit removal, it can limit removal to where there is good cause. 2. Impeachment and removal. The President, the Vice-President, federal judges and officers of the United States can be impeached and removed from the office for treason, bribery or for high crimes and misdemeanors a. b. Impeachment does NOT remove a person from office. Impeachment by the House of Representatives requires a majority vote; conviction in the Senate requires a 2/3 vote. 3. The President has absolute immunity to civil suits for money damages for any actions while in office. OFFICE.) 4. The President has executive privilege for presidential papers and conversations, but such privilege MUST yield to other important government interests. (E.G. US. V. NIXON) (THE NEED FOR EVIDENCE IN A CRIMINAL TRIAL OUTWEIGHS THE PRIVILEGE.) 5. The President has the power to pardon those accused or convicted of federal crimes. EXCEPTION: IF A PERSON IS IMPEACHED BY THE HOUSE OF REPRESENTATIVES, SUCH PERSON CAN NEVER BE PARDONED. TIPS: (NOTE: PRESIDENT CAN BE SUED FOR ACTIONS OCCURRED PRIOR TO THE PRESIDENT TAKING THE
13
1.
THE PRESIDENT MAY PARDON ONLY TO FEDERAL CRIMES, NEVER TO STATE CRIMES.
2.
THE PRESIDENT MAY PARDON ONLY TO CRIMINAL LIABILITY, NEVER TO CIVIL LIABILITY. (E.G. CRIMINAL CONTEMPT V. CIVIL CONTEMPT)
IV.
FEDERALISM
A. PREEMPTION. The Supremacy Clause of Article III provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. (** 4 TO 6 QUESTIONS ON MBE) 1. Express preemption IF A FEDERAL STATUTE EXPRESSLY SAYS THAT FEDERAL LAW WHOLLY OCCUPIES A FIELD, THEN STATE LAW IS COMPLETELY PREEMPTED. 2. Implied preemption a. If federal law and state law are mutually exclusive, federal law
preempts state law. TIP: STATES MAY SET ENVIRONMENTAL LAWS STRICTER THAN FEDERAL STANDARDS UNLESS CONGRESS CLEARLY PROHIBITS THIS. b. If state law impedes the achievement of a federal objective,
federal law preempts state law. c. If Congress evidences a clear intent to preempt state law, federal
law preempts state law. (E.G. IMMIGRATION LAW, ANY ATTEMPT 14
BY STATE GOVERNMENT TO CONTROL IMMIGRATION IS CONTROLLED BY FEDERAL LAW.) 3. States may NOT tax or regulate federal government activity. (ALSO CALLED "INTERGOVERNMENTAL IMMUNITY") IT IS UNCONSTITUTIONAL TO PAY A STATE TAX OUT OF THE FEDERAL TREASURY. (E.G. FEDERALLY OWNED STORE) STATES CANNOT REGULATE THE FEDERAL GOVERNMENT IF IT PUTS SIGNIFICANT BURDEN ON FEDERAL ACTIVITY. B. THE DORMANT COMMERCE CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV (** 2 OR 3 QUESTIONS) 1. Definitions a. The dormant commerce clause: THE PRINCIPLE THAT STATE LOCAL LAWS ARE UNCONSTITUTIONAL IF THEY PUT AN UNDUE BURDEN ON INTERSTATE COMMERCE. TIP: "THE NEGATIVE IMPLICATIONS OF THE COMMERCE CLAUSE" MEANS THE ABOVE DEFINED DORMANT COMMERCE CLAUSE. b. The privileges and immunities clause of Article IV: NO STATE MAY DENY CITIZENS OF OTHER STATES OF THE PRIVILEGES AND IMMUNITIES IT OFFERS TO ITS OWN CITIZENS. TIP: IT IS AN ANTIDISCRIMINATION PROVISION THAT APPLIES ONLY WHERE THE STATE DISCRIMINATES CITIZENS OF OTHER STATES.
15
c.
The privileges or immunities clause of the 14 th Amendment: PROTECT THE CITIZENS OF THE STATE FROM CERTAIN ACTIONS OF THEIR OWN STATE. TIP: "THE PRIVILEGES OR IMMUNITIES CLAUSE OF THE 14TH AMENDMENT" IS ALWAYS A WRONG ANSWER UNLESS THE QUESTION INVOLVES THE RIGHT TO TRAVEL.
2.
Does the state law discriminate against out-of-staters? I.E. DOES THE STATE LAW TREAT IN-STATERS AND OUT-OF-STATERS IN THE SAME WAY?
3.
Analysis if the law does not discriminate. a. b. The privileges and immunities clause of Article IV does not apply. If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.
4.
Analysis if the law discriminates against out-of-staters a. If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. (NOTE: SUFFICIENT IMPORTANCE: E.G. TO PRESERVE THE NATURE RESOURCES IN THE STATE. NECESSARY: NO LESS DISCRIMINATORY ALTERNATIVE IS AVAILABLE TO ACHIEVE THE PURPOSE.)
i. Exception: Congressional approval
ii. Exception:
The market participant exception. A state or
local government may prefer its own citizens in receiving 16
benefits from government programs or in dealing with government owned businesses. (E.G. PUBLIC COLLEGES MAY CHARGE LESS
TUITIONS FROM IN-STATERS.) b. If the law discriminates against out-of-staters with regard to their civil liberties or their ability to earn their livelihood, it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose. TO INVOKE PRIVILEGES AND IMMUNITIES CLAUSE UNDER ARTICLE IV: 1. THERE MUST BE DISCRIMINATION AGAINST OUT-OFSTATERS; 2. THE DISCRIMINATION MUST BE WITH REGARD TO CIVIL LIBERTIES OR ECONOMIC ACTIVITIES (I.E. THE ABILITY OF A PERSON TO EARN A LIVING, NOT INCLUDING MERE HOBBIES). 3. CORPORATIONS AND ALIENS CANNOT INVOKE THIS PROVISION. TIP: IF THE P IS A CORPORATION, YOU USE ONLY THE DORMAN COMMERCE CLAUSE IN YOUR ANSWER. IF THE P IS AN INDIVIDUAL, CONSIDER BOTH THE DORMAN COMMERCE CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE UNDER ARTICLE IV. 4. A DISCRIMINATION IS ALLOWED ONLY WHEN IT IS NECESSARY TO ACHIEVE AN IMPORTANT GOVERNMENT PURPOSE. THE STATE GOVERNMENT 17
MUST
PROVE
THAT
NO
LESS
DISCRIMINATIVE
ALTERNATIVE IS AVAILABLE.
18
19

Comparison of the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV
Dormant Commerce Clause Does not require discrimination against outof-staters in order to apply Requires a burden on interstate commerce Corporations and aliens can sue under it Exceptions: Congressional approval and the market participant exception
Privileges and Immunities Clause Requires discrimination against out-of-staters in order to apply Requires discrimination with regard to civil liberties or important economic activities Corporations and aliens cannot sue under it No exceptions
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C.
STATE TAXATION OF INTERSTATE COMMERCE (RARELY TESTED) 1. 2. 3. States may NOT use their tax systems to help in-state businesses. A state may only tax activities if there is a substantial nexus to the state. State taxation of interstate businesses must be fairly apportioned.
D.
FULL FAITH AND CREDIT. Courts in one state must give full faith and credit to judgments of courts in another state, so long as: 1. The court that rendered the judgment had jurisdiction over the parties and the subject matter. 2. 3. The judgment was on the merits. The judgment is final.
V.
THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES

A. IS THERE GOVERNMENT ACTION? 1. The Constitution applies only to government action. Private conduct need NOT comply with the Constitution. THE CONSTITUTION APPLIES TO GOVERNMENT AT ALL LEVELS, AND APPLIES TO GOVERNMENT OFFICERS AT ALL LEVELS, FEDERAL OR STATE. 2. Congress, by statute, may apply constitutional norms to private conduct. a. The 13th Amendment can be used to prohibit private race discrimination. 21
TIP:
DISCRIMINATION ITSELF.
NEVER ONLY
VIOLATES
THE
13TH 13TH
AMENDMENT
SLAVERY
VIOLATES
AMENDMENT. HOWEVER, DISCRIMINATION CAN VIOLATE FEDERAL LAWS ADOPTED BY CONGRESS UNDER THE 13TH AMENDMENT. b. The commerce power can be used to apply constitutional norms to private conduct. c. Congress cannot use 5 of the 14th Amendment to regulate private behavior. 3. Exceptions: Constitution. The public function exception. The Constitution applies if a private entity is performing a task traditionally, exclusively done by the government. E.G. RUNNING A TOWN BY A PRIVATE COMPANY; HOLDING PRIMARY ELECTION BY PRIVATE ENTITY. VERY NARROW EXCEPTION. E.G. RUNNING PRIVATE UTILITY IS NOT TRADITIONALLY, EXCLUSIVELY DONE BY THE GOVERNMENT. THUS NO EXCEPTION IS AVAILABLE. The entanglement exception. The Constitution applies if the government affirmatively authorizes, encourages, or facilitates unconstitutional activity. 7 EXAMPLES: COURTS CANNOT ENFORCE RACIAL RESTRICTIVE COVENANTS. 22 situations where private conduct must comply with the
a.
b.
THERE IS STATE ACTION WHEN THE GOVERNMENT LEASES PREMISES TO A RESTAURANT THAT RACIALLY DISCRIMINATES. THERE IS STATE ACTION WHEN A STATE PROVIDES FREE BOOKS TO A PRIVATE SCHOOL THAT RACIALLY DISCRIMINATES. THERE IS NOT STATE ACTION WHEN A PRIVATE SCHOOL THAT IS 99% FUNDED BY THE GOVERNMENT FIRED ITS TEACHER BECAUSE OF THE TEACHER'S SPEECH. NOTE: GOVERNMENT SUBSIDY IS INSUFFICIENT FOR FINDING A STATE ACTION. THERE IS NOT STATE ACTION WHEN THE NCWA ORDERS TO FIRE A BASEBALL COACH OF STATE UNIVERSITY WITHOUT DUE PROCESS. THERE IS STATE ACTION WHEN A PRIVATE ENTITY REGULATES INTERSCHOOL SPORTS WITHIN A STATE. THERE IS NOT STATE ACTION WHEN A PRIVATE CLUB WITH A LIQUOR LICENSE IN THE STATE RACIALLY DISCRIMINATES.
B.
THE APPLICATION OF THE BILL OF RIGHTS 1. 2. The Bill of Rights applies directly only to the federal government The Bill of Rights is applied to state and local governments through its
incorporation into the due process clause of the 14th Amendment. Except: a. The 2nd Amendment right to bear arms. (STATE GOVERNMENT
CAN ADOPT WHATEVER GUN-CONTROL ACT.) b. The 3rd Amendment right to not have soldiers quartered in a person's home. c. The 5th Amendment right to grand jury indictment in criminal cases. (STATES DON'T HAVE TO USE GRAND JURY IF THEY DON'T WANT TO.) 23
d. e.
The 7th Amendment right to jury trial in civil cases. The 8th Amendment right against excessive fines.
C.
LEVELS OF SCRUTINY (NOTE: TO DEFINE PRECISELY IN ESSAY QUESTION) 1. Rational basis test A LAW WILL BE UPHELD IF IT IS RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE. SO LONG AS THERE IS A CONCEIVABLE LEGITIMATE PURPOSE, IT IS ENOUGH. NO ACTUAL LEGITIMATE PURPOSE IS REQUIRED. THE CHALLENGER HAS THE BURDEN OF PROOF. THE BURDEN OF PROOF WILL NOT BE MET UNLESS THE CHALLENGER CAN SHOW EITHER THERE IS NO LEGITIMATE GOVERNMENT PURPOSE OR IT IS NOT RATIONALLY RELATED. 2. Intermediate scrutiny A LAW WILL BE UPHELD IF IT IS SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE. THE COURT WILL LOOK AT ONLY THE GOVERNMENT'S ACTUAL OBJECTIVE. GOVERNMENT HAS THE BURDEN TO PROVE. THE MEANS MUST BE SUBSTANTIALLY RELATED IN A GOOD WAY, I.E. A NEARLY TAILORED WAY, BUT NOT REQUIRED TO BE IN THE BEST WAY. 3. Strict scrutiny 24
CONSTITUTIONAL LAW CHART 4 THE LEVELS OF SCRUTINY

LEAST RESTRICTIVE ALTERNATIVE MEANS? RATIONAL BASIS TEST INTERMEDIATE SCRUTINY STRICT SCRUTINY
RATIONALLY RELATED
BURDEN OF PROOF?
CHALLENGER
ENDS?
LEGITIMATE CONCEIVABLE PURPOSE IMPORTANT ACTUAL PURPOSE COMPELLING
ANALYSIS?
NO
SUBSTANTIALLY RELATED
UNCERTAIN, BUT PROBABLY NOT
GOVERNMENT
NECESSARY
ACTUAL PURPOSE
YES
GOVERNMENT
A LAW WILL BE UPHELD IF IT IS NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE. THE COURT WILL LOOK AT ONLY THE GOVERNMENT'S ACTUAL OBJECTIVE. THE GOVERNMENT HAS THE BURDEN OF PROOF. THE MEANS MUST BE SHOWN TO BE NECESSARY TO OBTAIN THE RESULT. THE COURT MUST CONCLUDE THAT IT IS THE LEAST RESTRICTIVE ALTERNATIVE. THE MEANS MUST BE THE BEST WAY. [See chart on the following page]
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VI.
DUE PROCESS
A. PROCEDURAL DUE PROCESS 1. Has there been a deprivation of life, liberty, or property? a. Definitions i. A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. NOTE: IT'S THE WRITTEN LAW, I.E. THE CONSTITUTION OR A STATUTE, THAT CREATES LIBERTY. IMPORTANT EXAMPLES: -EXCEPT IN AN EMERGENCY, BEFORE AN ADULT CAN BE CIVILLY COMMITTED, THERE MUST BE NOTICE AND HEARING. -WHEN PARENTS ARE INSTITUTIONALIZING A CHILD, THERE ONLY NEED TO BE A SCREENING BY A NEUTRAL FACT FINDER. -HARM TO REPUTATION BY ITSELF IS NOT A LOSS OF LIBERTY. (A PERSON SHOULD SHOW A TANGIBLE LOSS.) -ii. PRISONERS RARELY HAVE LIBERTY INTERESTS.
A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.
26
TIP: RIGHTS/PRIVILEGES DISTINCTION USUALLY IS NOT THE RIGHT ANSWER. THE MAGIC WORD IS "ENTITLEMENT". A PERSON HAS A PROPERTY INTEREST IF THERE IS AN ENTITLEMENT. AN ENTITLEMENT EXISTS IF THERE IS A REASONABLE EXPECTATION TO CONTINUE TO RECEIVE THE BENEFIT. E.G. A PERSON WORKS FOR THE GOVERNMENT AND THE GOVERNMENT PROMISES THAT THE JOB WILL BE HIS FOR THE NEXT YEAR. IN THE MIDDLE OF THE YEAR, THE PERSON IS FIRED. THERE IS ENTITLEMENT. AND DUE PROCESS IS REQUIRED.
b. Government negligence is NOT sufficient for a deprivation of due
process.
Generally, there MUST be intentional government action or at least reckless action for liability to exist. conscience. EMERGENCY SITUATION: E.G. HIGH SPEED CHASE; SHOCKS THE CONSCIENCE: ACT WITH THE INTENT TO CAUSE HARM TO PEOPLE. c. Generally, the government's failure to protect people from privately inflicted harms does not deny due process. NOTE: ONLY IF THE GOVERNMENT LITERALLY CREATES THE DANGER, DOES THE GOVERNMENT HAVE THE DUTY TO PROTECT. 2. What procedures are required? However, in emergency situations, the government is liable under due process only if its conduct shocks the
27
a.
The test: Balance Test i) ii) The importance of the interest to the individual; AND The ability of additional procedures to increase the accuracy of the fact-finding; AGAINST iii) The government interest in administrative efficiency.
b.
Examples i. BEFORE WELFARE BENEFITS CAN BE TERMINATED, THERE MUST BE PRIOR NOTICE AND PRIOR HEARING. ii. WHEN SOCIAL SECURITY DISABILITY BENEFITS ARE TO BE TERMINATED, THERE MUST BE POST HEARING. iii. WHEN A STUDENT IS TO BE DISCIPLINED BY THE PUBLIC SCHOOL, THERE MUST BE NOTICE OF CHARGES AND OPPORTUNITY TO EXPLAIN. NO FORMAL EVIDENTIARY HEARING REQUIRED. iv. BEFORE PARENTS' RIGHT TO CUSTODY OF THE CHILD CAN BE PERMANENTLY TERMINATED, THERE MUST BE PRIOR NOTICE AND PRIOR HEARING. v. PUNITIVE DAMAGES AWARDS REQUIRE INSTRUCTIONS TO THE JURY IN JUDICIAL REVIEW TO SHOW REASONABLENESS. (GROSSLY EXCESSIVE PUNITIVE DAMAGES VIOLATE DUE PROCESS.) vi. AN AMERICAN CITIZEN APPREHENDED IN A FOREIGN COUNTRY AND HELD AS AN ENEMY COMBATANT 28
MUST BE AFFORDED DUE PROCESS, I.E. NOTICE, REPRESENTATION BY ATTORNEY AND MEANINGFUL HEARING. vii. EXCEPT IN EXIGENT CIRCUMSTANCES, PREJUDGMENT ATTACHMENT OR GOVERNMENT SEIZURE OF ASSETS MUST BE PRECEDED BY NOTICE AND HEARING. viii. QUALIFICATION: DUE PROCESS DOES NOT REQUIRE AN "INNOCENT OWNER" DEFENSE TO GOVERNMENT SEIZURE. (WHEN PROPERTY IS USED IN ILLEGAL ACTIVITY, GOVERNMENT MAY SEIZE IT EVEN IF THERE IS AN INNOCENT OWNER.) [See chart on the following page]
29

PROCEDURAL DUE PROCESS
Has the government deprived a person of life, liberty (a significant freedom secured by the Constitution or Statute), or property (an entitlement to a continued receipt of a benefit)?
YES
What procedures must government supply?
NO
Government need not due
provide process.
procedural
BALANCE: a) Importance of interest to the individual; b) Ability of additional procedures to increase the accuracy of the fact finding; and c) The government interest in administrative efficiency
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B.
SUBSTANTIVE DUE PROCESS 1. Definition WHETHER THE GOVERNMENT HAS REASONABLE CAUSE TO TAKE AWAY A PERSON'S LIFE, LIBERTY OR PROPERTY. 2. The Constitution provides only minimal protection for economic liberties. a. Only a rational basis test is used for laws affecting economic rights. b. The takings clause. The government may take private property for public use if it provides just compensation. (NOTE: A SEPARATE TEST IS APPLIED ONLY FOR THE TAKING CLAUSE.) i. Is there a taking? a) possessory taking - Government confiscation or physical occupation of property is ALWAYS a taking. NOTE: NO MATTER HOW SMALL THE PROPERTY IS, THERE COULD BE A TAKING. b) regulatory taking Government regulation is a taking if it leaves no reasonable economically viable use of the property. (NOTE: IT IS NOT A TAKING IF THE REGULATION JUST DECREASES THE VALUE OF THE PROPERTY.) NOTE: 31 Government conditions on
development of property must be justified by a benefit
that is roughly proportionate to the burden imposed; otherwise it is a taking. NOTE: A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. NOTE: Temporarily
denying an owner use of property is NOT a taking so long as the governments action is reasonable. ii. Is it for public use? NOTE: IF IT IS NOT FOR PUBLIC USE, THE GOVERNMENT HAS TO GIVE THE PROPERTY BACK. HOWEVER, THE SUPREME COURT HAS BROADLY DEFINED THE "PUBLIC USE": A TAKING IS FOR PUBLIC USE SO LONG A AS THE GOVERNMENT ACTS WITH REASONABLE
BELIEF THAT THE USE WILL BENEFIT THE PUBLIC. iii. Is just compensation paid? NOTE: JUST COMPENSATION IS MEASURED IN TERMS OF THE LOSS OF THE OWNER FOR THE REASONABLE MARKET VALUE. THE GAIN TO THE GOVERNMENT IS IRRELEVANT. [See chart on the following page]
32

THE TAKINGS CLAUSE
Government may take private property for public use if it pays just compensation
Is it a taking?
Is there a government confiscation or physical occupation of property? viable use of the property? If YES to either question there is a taking If NO to both questions, there is no taking and NO government compensation is required Does the governments regulation leave no reasonable economically
Is it for public use? Does the government act out of a reasonable belief that its action will benefit the public? YES Just compensation must be paid. Government must pay economic market value of property in hands of owner (gain to the taker is irrelevant) Government must return the property NO
33
c.
The contracts clause. No state shall impair the obligations of contracts. (ARTICLE I, SECTION 10) i. Applies only to state or local interference with existing contracts. NOTE: THE CONTRACT CLAUSE NEVER APPLIES TO THE FEDERAL GOVERNMENT. NOTE: IT DOESN'T LIMIT THE STATE OR LOCAL GOVERNMENT'S ABILITY TO REGULATE FUTURE CONTRACTS. ii. State or local interference with private contracts must meet intermediate scrutiny. (NOTE: HERE, IT IS DIFFERENT FROM TRADITIONAL INTERMEDIATE SCRUTINY.) Does the legislation substantially impair a party's rights under an existing contract? If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? State or local interference with government contracts must meet strict scrutiny. The ex post facto clause does NOT apply in civil cases. Retroactive civil liability only need meet a rational basis test. (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial.) EX POST FACTO LAW IS A LAW CRIMINALLY PUNISHES THE CONDUCT THAT WAS LAWFUL WHEN WAS DONE OR INCREASES THE PUNISHMENT FOR THAT CONDUCT AFTER THE CONDUCT WAS COMMITTED.
iii.
iv.
3.
Privacy is a fundamental right protected under substantive due 34
process. (STRICT SCRUTINY IS USED FOR PRIVACY ISSUES.) a. The right to marry THE GOVERNMENT MAY INTERFERE ONLY WHEN SATISFYING THE STRICT SCRUTINY. b. c. The right to procreate The right to custody of one's children. QUALIFICATION: A STATE MAY CREATE AN IRREBUTTABLE PRESUMPTION THAT A MARRIED WOMAN'S HUSBAND IS THE FATHER OF THE CHILD. d. The right to keep the family together NOTE: THE DEFINITION OF "FAMILY" IS BROADER THAN PARENTS AND CHILDREN. IT INCLUDES EXTENDED FAMILY. IN ORDER TO BE CONSIDERED AS ONE FAMILY, INDIVIDUALS MUST BE RELATED WITH ONE ANOTHER. E.G. ZONING ORDINANCE KEEPING GRANDPARENTS FROM LIVING WITH THEIR GRANDCHILDREN IS UNCONSTITUTIONAL. e. The right to control the upbringing of one's children E.G. RIGHT OF UPBRINGING THE CHILD INCLUDES THE RIGHT OF THE PARENTS TO SEND THEIR CHILDREN TO PAROCHIAL SCHOOL. E.G. IT IS UNCONSTITUTIONAL FOR THE COURT TO ORDER GRANDPARENT'S VISITATION TO THE CHILD OVER THE PARENTS' OBJECTION. f. The right to purchase and use contraceptives
35
g.
The right to abortion NOTE: STRICT SCRUTINY IS NOT USED IN THE RIGHT TO ABORTION.
i.
Prior to viability, states may NOT prohibit abortions, but MAY regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. Example: a requirement for a 24 hour waiting period for abortions is not an undue burden. Example: a requirement that abortions be performed by licensed physicians is not an undue burden. Example: the prohibition of partial birth abortions IS an impermissible undue burden
---
--
After viability, states MAY prohibit abortions unless necessary to protect the woman's life or health. ii. ** The government has NO duty to subsidize abortions or provide abortions in public hospitals. Spousal consent and notification laws are unconstitutional. Parental notice and consent laws for unmarried minors. A state may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature enough to decide for herself.
iii.
iv.
h.
The right to privacy protects a right to engage in private consensual homosexual activity.
36
NOTE: THE SUPREME COURT DID NOT ARTICULATE THE LEVEL OF SCRUTINY IN THE DECIDING CASE IN THIS RESPECT. i. The right to refuse medical treatment. a) Competent adults have the right to refuse medical treatment, even life-saving medical treatment.
b) A state may require clear and convincing evidence
that a person wanted treatment terminated before it is ended.

c) A state may prevent family members from
terminating treatment for another. j. There is not a constitutional right to physician - assisted suicide.
37

Fundamental Rights Key examples
Rights Triggering Strict Scrutiny
Right to marry Right to procreate Right to custody of children Right to keep family together Right to control raising of children Right to purchase and use contraceptives Right to travel (covered under Equal protection VII-H) Right to vote (covered under Equal protection VII-H) Freedom of speech (covered under Equal protection VIII) Freedom of association (covered under Equal protection VIII) Free exercise of religion (if the law burdening religion is not a neutral law of general applicability) (covered under Equal protection VIII)
Rights Triggering Undue Burden Test

Right to abortion
Not a Fundamental Right Rational Basis Review

Right to practice a trade or profession Right to physician-assisted suicide Right to education
Level of Scrutiny Unknown

Right to engage in private consensual homosexual activity Right to refuse medical treatment
38
VII. EQUAL PROTECTION

A. AN APPROACH TO EQUAL PROTECTION QUESTIONS 1. 2. 3. B. What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny?
CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION 1. The equal protection clause of the 14th Amendment applies only to state and local governments. TIP: THE 14TH AMENDMENT NEVER APPLIES TO THE FEDERAL GOVERNMENT. 2. Equal protection is applied to the federal government through the due process clause of the 5th Amendment.
C.
CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN 1. 2. Strict scrutiny is used. How is the existence of a racial classification proven? a. The classification exists on the face of the law. E.G. BLACK CANNOT SERVE ON JURIES. BLACK AND WHITE CHILDREN CANNOT ATTEND THE SAME PUBLIC SCHOOL. b. If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent.
39
Example: discriminatory use of peremptory challenges based on race denies equal protection. (NOTE: IT DOES NOT MATTER WHETHER IT IS USED BY PROSECUTOR OR THE DEFENDANT) 3. How should racial classifications benefiting minorities be treated? a. b. c. Strict scrutiny is applied. Numerical set-asides require clear proof of past discrimination. Educational institutions may use race as one factor in admissions decisions to help minorities. NOTE: COLLEGES AND UNIVERSITIES CANNOT ADD POINTS TO APPLICANT'S ADMISSION SCORES SOLELY BASED ON THE RACE FACTOR. d. D. Seniority systems may not be disrupted for affirmative action.
GENDER CLASSIFICATIONS 1. Intermediate scrutiny is used. NOTE: GENDER CLASSIFICATION IS ALLOWED ONLY WHEN THERE IS "AN EXCEEDINGLY PERSUASIVE JUSTIFICATION". 2. How is the existence of a gender classification proven? a. b. The classification exists on the face of the law. If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent. Example: discriminatory use of peremptory challenges based on gender denies equal protection.
40
3.
How should gender classifications benefiting women be treated? (INTERMEDIATE SCRUTINY) a. Gender classifications benefiting women that are based on role stereotypes will NOT be allowed. E.G. IN CASE OF A DIVORCE, A WOMAN CAN BE AWARDED ALIMONY, BUT A MAN CAN NEVER BE AWARDED ALIMONY. UNCONSTITUTIONAL. E.G. IF THE HUSBAND DIES, THE WIFE CAN ALWAYS GET SURVIVORSHIP. BUT IF THE WIFE DIES, THE HUSBAND CANNOT GET SURVIVORSHIP UNLESS HE CAN PROVE DEPENDENCE ON THE WIFE. UNCONSTITUTIONAL. b. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. E.G. IN US NAVY, IF A MAN IS NOT PROMOTED IN 6 YEARS, HE SHOULD LEAVE THE NAVY; AS TO A WOMAN, 10 YEARS. CONSTITUTIONAL.
E.
ALIENAGE CLASSIFICATIONS ** 1. Generally, strict scrutiny is used. E.G. IN ORDER TO RECEIVE WELFARE BENEFITS IN THE STATE, THE PERSON HAS TO BE US CITIZEN. UNCONSTITUTIONAL. E.G. IN ORDER TO BE ADMITTED TO THE BAR, THE PERSON HAS TO BE US CITIZEN. UNCONSTITUTIONAL. 2. Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. BOTTOM LINE: THE GOVERNMENT CAN USE ALIENAGE CLASSIFICATION CONCERNING VOTING, SERVING IN A JURY, BEING A POLICE OFFICER, BEING A TEACHER, OR BEING A 41
PROBATION OFFICER IF THE RATIONAL BASIS REVIEW IS SATISFIED. 3. Only a rational basis test is used for Congressional discrimination against aliens. It appears that intermediate scrutiny is used for discrimination against undocumented alien children. E.G. CHILDREN OF CITIZENS AND DOCUMENTED ALIENS DO NOT NEED TO PAY FOR THE EDUCATION. BUT CHILDREN OF UNDOCUMENTED ALIENS HAVE TO PAY FOR THE EDUCATION. UNCONSTITUTIONAL. F. DISCRIMINATION AGAINST NON-MARITAL CHILDREN 1. Intermediate scrutiny is used.
4.
2. Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional. NOTE: LAWS THAT DENY A BENEFIT TO SOME NON-MARITAL CHILDREN MAY BE HELD CONSTITUTIONAL. E.G. LAW PROVIDING THAT PATERNITY MUST BE ESTABLISHED BEFORE THE FATHER'S DEATH IN ORDER FOR THE NON-MARITAL CHILD TO PARTICIPATE IN THE DISTRIBUTION OF THE ESTATE IS CONSTITUTIONAL. G. RATIONAL BASIS REVIEW IS USED FOR ALL OTHER TYPES OF DISCRIMINATION UNDER THE CONSTITUTION
1.
Age discrimination TIP: E.G. AN EQUAL PROTECTION CHALLENGE AGAINST MANDATORY RETIREMENT AGE. THE GOVERNMENT ALWAYS WINS.
42
2. 3. 4. 5. H.
Disability discrimination Wealth discrimination Economic regulations Sexual orientation discrimination
FUNDAMENTAL RIGHTS PROTECTED UNDER EQUAL PROTECTION 1. The right to travel a. Laws that prevent people from moving into a state must meet strict scrutiny. Durational residency requirements must meet strict scrutiny. DURATIONAL RESIDENCY REQUIREMENT: A PERSON MUST LIVE IN A JURISDICTION FOR A CERTAIN PERIOD OF TIME IN ORDER TO RECEIVE BENEFIT OF THE STATE. TIP: FOR A VOTING, 15 DAYS IS THE MAXIMUM ALLOWABLE DURATIONAL RESIDENCY REQUIREMENT. c. Restrictions on foreign travel need meet only the rational basis test.
b.
2.
The right to vote a. Laws that deny some citizens the right to vote must meet strict scrutiny. E.G. A POLL TAX IS UNCONSTITUTIONAL. TO PAY A FEE TO VOTE IS UNCONSTITUTIONAL. TIP: THAT PROPERTY OWNERSHIP IS A CONDITION FOR VOTING OR HOLDING PUBLIC OFFICE IS ALMOST NEVER ALLOWED. ONLY EXCEPTION: WATER DISTRICT 43
ELECTION. b. One-person - one-vote must be met for all state and local elections. (FOR ANY ELECTED BODY, ALL DISTRICTS MUST BE APPROXIMATELY EQUAL IN POPULATION.) TIP: VOTER APPROVAL DOES NOT JUSTIFY DEVIATION FROM ONE-PERSON-ONE-VOTE. c. At-large elections are constitutional unless there is proof of a discriminatory purpose. AN AT-LARGE ELECTION IS A VOTE WHERE ALL THE VOTERS VOTE FOR ALL THE OFFICE HOLDERS. d. The use of race in drawing election district lines must meet strict scrutiny. IF THE GOVERNMENT USES RACE AS A PREDOMINANT FACTOR TO DRAW ELECTION DISTRICT LINES TO BENEFIT MINORITIES, THE STRICT SCRUTINY MUST BE MET. e. Counting uncounted votes without standards in a presidential election violates equal protection.
3.
There is NO fundamental right to education [See chart on the following page]
44

EQUAL PROTECTION
EQUAL PROTECTION ISSUES CAN BE DIVIDED INTO 3 QUESTIONS: 1 - WHAT IS THE CLASSIFICATION? Two ways to determine the existence of classifications: a) The classification is on the face of the law; or b) If the law is facially neutral, there is both a discriminatory intent for the law and a discriminatory impact to the law. 2 - WHAT IS THE LEVEL OF SCRUTINY? Strict Scrutiny Law must be necessary to achieve a compelling government purpose. Race National origin Alienage - generally Travel (but not foreign travel) Voting Intermediate Scrutiny Law must be substantially related to an important government purpose. Gender Illegitimacy Undocumented alien children Rational Basis Test Law must be rationally related to a legitimate government interest. Alienage classifications related to self government and the democratic process Congressional regulation of aliens Age Handicap Wealth All other classifications
3 - DOES THIS LAW MEET THE LEVEL OF SCRUTINY?
45
VIII. THE FIRST AMENDMENT

A. FREE SPEECH METHODOLOGY 1. Content-based v. content-neutral restrictions a. Content-based restrictions on speech generally must meet strict scrutiny. Two types of content based laws: i. subject matter restrictions WHERE THE APPLICATION OF LAW DEPENDS ON THE TOPIC OF THE SPEECH. ii. viewpoint restrictions WHERE THE APPLICATION OF THE LAW DEPENDS ON THE IDEOLOGY OF THE MESSAGE. E.G. PRO-WAR MESSAGE IS ALLOWED, BUT ANTIWAR MESSAGE IS NOT ALLOWED. THAT IS A VIEWPOINT RESTRICTION. b. Content-neutral laws burdening speech generally need only meet intermediate scrutiny. E.G. NO PARADES ARE ALLOWED IN A PARTICULAR CITY PARK. 2. Prior restraints DEFINITION: A JUDICIAL ORDER OR AN ADMINISTRATIVE SYSTEM THAT STOPS SPEECH BEFORE IT OCCURS. a. Court orders suppressing speech must meet strict scrutiny.
46
TIP: GAG-ORDERS-UNDER-PRESS TO PREVENT PREJUDICIAL PRE-TRIAL PUBLICITY ARE NEVER ALLOWED. QUALIFICATION: Procedurally proper court orders must be complied with until they are vacated or overturned. A person who violates a court order is barred from later challenging it. b. The government can require a license for speech only if there is an important reason for licensing and clear criteria leaving almost no discretion to the licensing authority. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review.
3.
Vagueness and overbreadth a. Vagueness. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. ANY LAW THAT REGULATES SPEECH MUST BE CLEAR ABOUT WHAT IS PROHIBITED AND WHAT IS ALLOWED. b. Overbreadth. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. E.G. A LAW PROHIBITING ALL LIVE ENTERTAINMENT IS UNCONSTITUTIONALLY OVERBROAD. c. Fighting words laws are unconstitutionally vague and overbroad. TIP: FIGHTING WORDS ARE NOT PROTECTED BY THE FIRST AMENDMENT. HOWEVER, LAWS PROHIBITING FIGHTING WORDS ARE ALWAYS UNCONSTITUTIONALLY VAGUE AND OVERBROAD.
4.
Symbolic speech. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of 47
the message and if the impact on communication is no greater than necessary to achieve the government's purpose. 1. FLAG BURNING IS CONSTITUTIONALLY PROTECTED SPEECH. DRAFT CARD BURNING IS NOT PROTECTED SPEECH. NUDE DANCING IS NOT PROTECTED SPEECH. BURNING A CROSS IS A PROTECTED SPEECH UNLESS THERE IS PROOF OF INTENT TO THREATEN OR INTIMIDATE. CONTRIBUTION LIMITS IN AN ELECTION CAMPAIGN ARE CONSTITUTIONAL; EXPENDITURE LIMITS ARE UNCONSTITUTIONAL.
2.
3. 4.
5.
5.
Anonymous speech is protected THE 1ST AMENDMENT TO SPEAK INCLUDES THE RIGHT NOT TO SPEAK. AND THE RIGHT NOT TO SPEAK INCLUDES THE RIGHT TO SPEAK WITHOUT DISCLOSING ONE'S IDENTITY.
B.
WHAT SPEECH IS UNPROTECTED OR LESS PROTECTED BY THE 1ST AMENDMENT? 1. Incitement of illegal activity. The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality. ** Obscenity and sexually-oriented speech. a. The test i. The material must appeal to the prurient interest.
2.
48
A PRURIENT INTEREST IS "A SHAMEFUL OR MORBID INTEREST IN SEX". A LOCAL STANDARD. ii. The material must be patently offensive under the law prohibiting obscenity. THE LOCAL LAW PROHIBITING OBSCENITY SHOULD SHOW WHAT ACTIVITIES ARE PATENTLY OFFENSIVE. A LOCAL STANDARD. ii. Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value. IT IS DETERMINED BY NATIONAL STANDARD. b. The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters. c. Child pornography may be completely banned, even if not obscene. NOTE: THE MATERIAL MUST HAVE USED CHILDREN IN ITS PRODUCTION. COMPUTER-SIMULATED CHILD OR CHILD-LIKE ADULT IS OK. d. The government may not punish private possession of obscene materials; but the government may punish private possession of child pornography.
e. The government may seize the assets of businesses convicted of violating obscenity laws.
f. Profane and indecent speech is generally protected by the 1st
Amendment.
i)
Exception: over the broadcast media I.E. OVER TELEVISION OR RADIO. 49
NOTE: THE GOVERNMENT HAS LESS POWER TO REGULATE CABLE TELEVISION OR THE INTERNET.
ii)
Exception: in schools
3.
Commercial speech a. ADS FOR ILLEGAL ACTIVITY OR False and deceptive ads are NOT protected by the 1st Amendment. True commercial speech that inherently risks deception can be prohibited.
i.
b.
The government may prevent professionals from advertising or practicing under a trade name. The government may prohibit attorney, in-person solicitation of clients for profit. IF A LAWYER OFFERS FREE SERVICE, IN-PERSON SOLICITATION IS OK. A LETTER SOLICITATION IS ALSO OK.
ii.
iii. c.
The government may not prohibit accountants from inperson solicitation of clients for profit. Other commercial speech can be regulated if intermediate scrutiny is met. Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.
d.
4.
Defamation
50
the plaintiff can recover for defamation by proving falsity of the statement and actual malice. ACTUAL MALICE: THE DEFENDANT KNEW THE STATEMENT WAS FALSE OR ACTED WITH RECKLESS DISREGARD OF TRUTH.
b.
If the plaintiff is a public figure' the plaintiff can recover for defamation by proving falsity of the statement and actual malice. NOTE: THERE IS NO CLEAR DEFINITION OF "PUBLIC FIGURE".
c.
If the plaintiff is a private figure and the matter is of public concern, that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant. However, the plaintiff may recover presumed (A PRE-FIXED AMOUNT OF DAMAGES) or punitive damages only by showing actual malice. If the plaintiff is a private figure and the matter is not of public concern, the plaintiff can recover presumed or punitive damages without showing actual malice. (NOTE: NEVER SAID WHO HAS THE BURDEN OF PROOF OR WHAT IS THE STANDARD FOR COMPENSATION.) [See chart on the following page]
d.
51

DEFAMATION
LIABILITY STANDARD Actual Malice Actual Malice BURDEN OF PROOF Plaintiff Must Prove Falsity Plaintiff Must Prove Falsity
PLAINTIFF Public Official Public Figure
DAMAGES Compensatory Presumed/Punitive Compensatory Presumed/Punitive Compensatory for Actual Injury; Presumed or Punitive Damages Require Actual Malice Compensatory for Actual Injury; Presumed or Punitive Damages Do Not Require Actual Malice
Private Figure, Matter of Public Concern
Negligence and Actual Injury
Plaintiff Must Prove Falsity
Private Figure, Matter of Private Concern
Unclear Negligence
Unclear Burden on Defendant to Prove Truth
52
5.
Privacy a. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government.
b. Liability is not allowed if the media broadcasts a tape of an illegally
intercepted call if the media did not participate in the illegality and it involves a matter of public importance.
c. The government may limit its own dissemination of information so as
to protect privacy. NOTE: THE PRESS AND PUBLIC DO HAVE THE 1ST AMENDMENT RIGHT TO ATTEND CRIMINAL PRETRIAL HEARINGS. AS TO OTHERS, THE GOVERNMENT HAS THE RIGHT TO LIMIT. 6. Other government restrictions based on the content of speech must meet strict scrutiny.
C.
WHAT PLACES ARE AVAILABLE FOR SPEECH? 1. Public forums government properties that the government is required to make available for speech. E.G. SIDEWALKS IN PARKS. a. Regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met. Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. Government regulation of public forums need not use the least restrictive alternative. City officials cannot have discretion to set permit fees for public demonstrations.
b.
c.
d.
53
2.
Limited public forums (DESIGNATED PUBLIC FORUMS) government properties that the government could close to speech, but chooses to open to speech. E.G. SCHOOL FACILITIES IN EVENINGS AND WEEKENDS. ALL THE NON-PUBLIC FORUMS LISTED BELOW. THE RULE IS IDENTICAL TO PUBLIC FORUMS.
3.
Non-public forums government properties that the government constitutionally can and does close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. KEY EXAMPLES OF NON-PUBLIC FORUMS: 1. 2. 3. 4. 5. MILITARY BASES, EVEN IF THE BASES ARE OPEN FOR PUBLIC VISIT; AREAS OUTSIDE PRISONS AND JAILS; ADVERTISING SPACE ON CITY BUSES; ** SIDEWALKS ON POST OFFICE PROPERTY; AIRPORTS. (NOTE: THE GOVERNMENT MAY PROHIBIT SOLICITATION FOR MONEY, BUT THE GOVERNMENT CANNOT PROHIBIT DISTRIBUTION OF LITERATURE.)
4.
There is no 1st Amendment right of access to private property for speech purposes. E.G. PRIVATELY OWNED SHOPPING CENTER. NO 1ST AMENDMENT RIGHT TO SPEECH.
54

PLACES AVAILABLE FOR SPEECH
SUBJECT MATTER NEUTRAL? PUBLIC FORUMS (e.g., sidewalks, parks) LIMITED PUBLIC FORUMS (i.e., non-public forums that the government opens to speech) NON-PUBLIC FORUMS (e.g., military bases, airports) PRIVATE PROPERTY METHOD OF REGULATION ALLOWED?
TIME, PLACE, OR MANNER
VIEWPOINT NEUTRAL?
INTEREST REQUIRED?
YES
YES
IMPORTANT
YES
YES
TIME, PLACE, OR MANNER
IMPORTANT
NO
YES
REASONABLE
LEGITIMATE
NO 1st AMENDMENT RIGHT TO USE PRIVATE PROPERTY FOR SPEECH PURPOSES
55
D. FREEDOM OF ASSOCIATION 1. Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership in a group it must be proven that the person HAS: i. ii. iii. 2. ACTIVE AFFILIATION OF THE GROUP; KNOWLEDGE OF THE ILLEGAL PURPOSE OF THE GROUP; AND INTENT TO REALIZE SUCH ILLEGAL PURPOSE.
Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny. Laws that prohibit a group (INCLUDING PRIVATE CLUB) from discriminating are constitutional unless they interfere with intimate association or expressive activity. INTIMATE ASSOCIATION: E.G. A SMALL DINNER PARTY. EXPRESSIVE ACTIVITY: E.G. THE KLAN CAN EXCLUDE THE BLACK. E.G. THE BOY SCOUT CAN DISCRIMINATE GAY.
3.
E.
FREEDOM OF RELIGION 1. The free exercise clause

a. ** The free exercise clause cannot be used to challenge a neutral law of
general applicability. b. The government may not deny benefits to individuals who quit their jobs for religious reasons. 2. The establishment clause THE GOVERNMENT MAY MAKE NO LAW IN RELATION TO THE ESTABLISHMENT OF A RELIGION. a. The test "SEX" 56
i. ii.
There must be a secular purpose for the law. The effect must be neither to advance nor inhibit religion. KEY PRINCIPLE: THE GOVERNMENT MUST NOT SYMBOLICALLY ENDORSE RELIGION OR A PARTICULAR RELIGION.
iii.
There must not be excessive entanglement with religion. TIP: THE GOVERNMENT MAY PUT RELIGIOUS SYMBOLS ON GOVERNMENT PROPERTY IN DECEMBER HOLIDAY SEASON SO LONG AS THERE IS BOTH SYMBOLS OF OTHER RELIGIONS AND SECULAR SYMBOLS.
b.
The government cannot discriminate against religious speech or among religions unless strict scrutiny is met. Government sponsored religious activity in public schools is unconstitutional. But religious student and community groups must have the same access to school facilities as non religious groups. E.G. STUDENTS' DELIVERY OF PRAYER BEFORE FOOTBALL GAMES IS UNCONSTITUTIONAL. EVEN SILENT PRAYER IN PUBLIC SCHOOL IS UNCONSTITUTIONAL.
c.
d.
The government may give assistance to parochial schools, so long as it is not used for religious instruction. The government may provide parents with vouchers that they may use in parochial schools.
57

An Approach to Constitutional Law Questions Ask: Who is the actor in the question?
Congress
The issue is either or both: 1) Does Congress have the authority to act?
(See infra., Lecture Handout, II)
President or Federal Executive Branch The issue is either or both:

1) Has the President/Executive branch exceed the scope of executive powers?
(See infra., Lecture Handout, III)
Federal Court
The issue is: Does the Federal Court have the authority to hear the case?
(See infra., Lecture Handout, I)
State/ Local Government

The issue is: Has the State or local government violated a limit on its powers?
(See infra., Lecture Handout, IV, VI, VII, VIII)
Private (non-government actor) The issues are:

1) Is there state action?
(See infra., Lecture Handout, V)
and, if so 2) Does it violate the constitution?

(See infra., Lecture Handout, VI, VII, VIII)
and/or 2) Has Congress violated a limit on its power?

and/or 2) Has the President/Executive branch violated a limit on government power?

(CHEMERINSKY@LAW.DUKE.EDU)
58

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BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

NEW YORK COURSE CONSTITUTIONAL LAW

THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES

VII. EQUAL PROTECTION VIII. FIRST AMENDMENT

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

THE FEDERAL JUDICIAL POWER

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

THE FEDERAL LEGISLATIVE POWER

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

THE FEDERAL EXECUTIVE POWER

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

[See chart on the following page]

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 1

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

law preempts state law. (E.G. IMMIGRATION LAW, ANY ATTEMPT 14

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

The market participant exception. A state or

local government may prefer its own citizens in receiving 16

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

[See chart on the following page]

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 3

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF INDIVIDUAL LIBERTIES

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 4 THE LEVELS OF SCRUTINY

UNCERTAIN, BUT PROBABLY NOT

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 5

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

development of property must be justified by a benefit

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 6

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

Privacy is a fundamental right protected under substantive due 34

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

that a person wanted treatment terminated before it is ended.

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

CONSTITUTIONAL LAW CHART 7

Rights Triggering Undue Burden Test

Not a Fundamental Right Rational Basis Review