sample Constitutional Law Outline

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Constitutional Law:

1.      The Federal Judicial Power:

i)      The Requirement for Cases and Controversies (Four justiciability requirements):

(1)  Standing - standing is the question of whether the plaintiff is the proper party to bring a matter to the court for adjudication.

(a)  Injury - the plaintiff must allege and prove that he or she has been injured or imminently will be injured.

(i)    Types of injuries – many different kinds are sufficient for standing (torts, breach of K, violations of constitutional rights, violations of statutory rights, and any other harm that is sufficiently important) 

(ii)  Plaintiffs only may assert injuries that they personally have suffered.

(iii) Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm.

(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 (so the court won’t be issuing an advisory opinion).

(c)   No third party standing - a plaintiff cannot assert claims of others, of third parties, who are not before the court.

(i)    Exception 1: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party (e.g. – doctor/patient relationship – doctors bring suits against laws prohibiting abortions on behalf of their patients; bartender/customer).

(ii)  Exception 2: 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 Ds have 3^rd party standing to raise of prospective jurors to free from discrimination in jury selection).

(iii) Exception 3: an organization may sue for its members, if

1.     the members would have standing to sue;

2.     the interests are germane to the organization’s purpose;

3.     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.

(i)    Exception - taxpayers have standing to challenge government expenditures of money as violating the Establishment Clause (but taxpayers lack standing to challenge federal gov’t grants of property to religious institutions).

(2)  Ripeness - ripeness is the question of whether a federal court may grant pre-enforcement review of a statute or regulation (exam tip – when P asks for declaratory judgment, think ripeness).

(a)  Two criteria for pre-enforcement judgment:

(i)    The hardship that will be suffered without pre-enforcement review.

(ii)  The fitness of the issues and the record for judicial review.

(3)  Mootness - if events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot.

(a)  Exception 1 - wrong capable of repetition but evading review (e.g.: Roe v. Wade – no longer pregnant when case decided).

(b)  Exception 2 - voluntary cessation (if D voluntarily halts the offending practice but is free to resume it at any time).

(c)   Exception 3 - class action suits (even if named P’s claim becomes moot, a class action will not be dismissed so long as one member of the class has an ongoing injury).

(4)  The political question doctrine - the political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate.

(a)  Cases that are non-justiciable under the political question doctrine:

(i)    Cases under the  “republican form of government clause.”

(ii)  Challenges to the President's conduct of foreign policy.

(iii) Challenges to the impeachment and removal process

(iv) Challenges to partisan gerrymandering.

ii)    Supreme Court Review:

(1)  Virtually all cases come to the Supreme Court by writ of certiorari (discretionary review - 4 justices must vote to hear the case).

(a)  All cases from state courts come to the Supreme Court by writ of certiorari

(b)  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 (go straight to Supreme Court – obligated to take the case).

(d)  The Supreme Court has original and exclusive jurisdiction for suits 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 (final judgment rule – no interlocutory appeals).

(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 Court’s reversal of the federal law ground will not change the result in the case, the Supreme Court cannot hear it.

iii)   Lower Federal Court Review:

(1)  Federal courts (or state governments) may not hear suits against state governments.

(a)  The principle of sovereign immunity.

(i)    The 11^th Amendment bars suits against states in federal court.

(ii)  Sovereign immunity bars suits against states in state courts or federal agencies.

(b)  Exceptions - states may be sued under the following circumstances:

(i)    Waiver is permitted (must be explicit).

(ii)  States may be sued pursuant to federal laws adopted under §5 of the 14^th Amendment.  Congress cannot authorize suits against states under other constitutional provisions.

(iii) The federal government may sue state governments.

(c)   Suits against state officers are allowed.

(i)    State officers may be sued for injunctive relief.

(ii)  State officers may be sued for money damages to be paid out of their own pockets.

(iii) State officers may not be sued if the state treasury will be paying retroactive damages.

(2)  Abstention (federal court has jurisdiction, but must abstain) - Federal courts may not enjoin pending state court proceedings.

2.      Federal Legislative Power:

i)      Congress’ Authority to Act:

(1)  There must be express or implied Congressional power.

(a)  No general police power.

(b)  The only cases where it is proper to say that Congress is operating under its police power is when its legislating for the military, for Indian reservation, or federal lands or new territories or for the District of Columbia.

(2)  The necessary and proper clause.

(a)  Congress can enact all laws necessary and proper to carry out its authority (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.

(4)  The Commerce Power:

(a)  Congress may regulate the channels of interstate commerce (places where commerce occurs: highways, waterways; internet).

(b)  Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce (things that facilitate commerce: trucks, planes, internet, phone, and the things that go across trade lines: stock, cattle, etc.).

(c)   Congress may regulate activities that have a substantial effect on interstate commerce (in the area of non-economic activity, a substantial effect cannot be based on cumulative impact).

(5)  The 10^th Amendment as a limit on Congressional powers.  The 10^th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.

(a)  Congress cannot compel state regulatory or legislative action.

(b)  Congress may prohibit harmful commercial activity by state governments (e.g. – Congress prohibits state DMVs from publish lists of names and addresses of registrants).

(6)  Congress’ power under §5 of the 14^th Amendment - Congress may not create new rights or expand the scope of rights under §5 of the 14^th 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.

ii)    Delegation of Powers:

(1)  No limit exists on Congress’ ability to delegate legislative power to executive agencies or even to the judiciary.

(a)  No delegation of power has ever been declared unconstitutional.

(2)  Legislative vetos and line - item vetos are unconstitutional,

(a)  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.

(i)    legislative veto – Congress tries to veto an executive action (unconstitutional w/o bicameralism and presentment).

(ii)  line-item veto – President tires to veto some of the bill, while signing the rest.

(3)  Congress may not delegate executive power to itself or its officers.

3.      Federal Executive Power:

i)      Foreign Policy:

(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)  Treaties prevail over conflicting state laws.

(b)  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 - 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.

(a)  Executive agreements can be used for any purpose (anything that can be done by a treaty can be done by an executive agreement)..

(b)  Executive agreements prevail over conflicting state laws, but never over conflicting federal laws or the Constitution (see chart).

TREATIES AND EXECUTIVE AGREEMENTS
	IS SENATE APPROVAL REQUIRED?	CONFLICTS WITH STATE LAW	CONFLICTS WITH FEDERAL STATUTE	CONFLICTS WITH CONSTITUTION
TREATIES	YES	TREATY CONTROLS	WHICHEVER WAS ADOPTED LAST IN TIME CONTROLS	CONSTITUTION CONTROLS
EXECUTIVE AGREEMENTS	NO	EXECUTIVE AGREEMENT CONTROLS	FEDERAL STATUTE CONTROLS	CONSTITUTION CONTROLS

(c)   The President has broad powers as Commander-in-Chief to use American troops in foreign countries (broad power - never has been declared unconstitutional).

ii)    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.

(ii)  Congress may vest the appointment of inferior officers in the President, the heads of departments or the lower federal courts.

1.     Inferior officers includes independent counsel (b/c may be fired by AG).

(iii) Congress may not give itself or its officers the appointment power.

(b)  The removal power: 

(i)    Unless removal is limited by statute, the President may fire any executive branch official.

(ii)  For Congress to limit removal:

1.     it must be an office where independence from the President is desirable (e.g. – independent counsel, not president’s cabinet), and

2.     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 or for high crimes and misdemeanors.

(a)  Impeachment does not remove a person from office (conviction in the Senate results in removal).

(b)  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. 

(a)  However, the President does not have immunity for actions that occurred prior to taking office.

(4)  The President has executive privilege for presidential papers and conversations, but such privilege must yield to other important government interests (overriding needs for the information).

(5)  The President has the power to pardon those accused or convicted of federal crimes (only for criminal liability).

(a)  Exception – when a president is impeached by the house, he cannot be pardoned for the incidents that led to the impeachment.

4.      Federalism (limits on state and local gov’t power):

i)      Preemption – the Supremacy Clause of Article VI provides that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land.

(1)  Express preemption – if a federal law explicitly says that federal law is exclusive in the field, then state or local laws are preempted.

(2)  Implied preemption – even if the federal statute is silent about preemption, preemption can arise in the following ways:

(a)  If federal and state laws are mutually exclusive, federal law preempts state law.

(i)    States may set environmental standard stricter than federal laws unless Congress clearly prohibits this (not limited to environmental issues, not that’s the hypo that’s been tested).

(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 (even though statute silent – legislative history, etc.).

(3)  States may not tax or regulate federal government activity (it is unconstitutional to pay a state tax out of the federal treasury)

(a)  Can’t regulate federal gov’t if regulation puts a significant burden on the federal gov’t activity (e.g. – the federal gov’t would not have to comply with the stricter state environmental laws mentioned above).

ii)    The Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV:

(1)  Definitions:

(a)  The dormant commerce clause – the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce.

(i)    Also referred to as the “negative implications of the commerce clause.”

(b)  The privileges and immunities clause of Article IV – provides that no state may deny citizens of other states of the privileges and immunities it affords its own citizens (limits ability of state to discriminate against out-of-staters).

(c)   The privileges or immunities clause of the 14^th Amendment – always a wrong answer unless the question involves the right to travel.

(2)  Formula for answering a question involving above:

(a)  Does the state law discriminate against out-of-staters?

(b)  Analysis if the law does not discriminate.

(i)    The privileges and immunities clause of Article IV does not apply.

(ii)  If the law burdens interstate commerce, it violates the dormant commerce clause if its burdens exceed its benefits.

1.     e.g. – Illinois law with requires curved mud flaps on all trucks

(c)   Analysis if the law discriminates against out-of-staters:

(i)    If the law burdens interstate commerce, it violates the dormant commerce clause unless it is necessary to achieve an important government purpose (only purpose ever upheld – preserving natural resources).

1.     Exception 1:  Congressional approval

2.     Exception 2:  The market participant exception.  A state or local government may prefer its own citizens in receiving benefits from government programs or in dealing with government owned businesses (e.g. – higher tuition off out of state students in state schools).

(ii)  If the law discriminates against out-of-staters with regard to 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.

1.     The law must discriminate against out-of-staters.

2.     The discrimination must be with regard to civil liberties or important economic activities.

3.     Corporations and aliens cannot use the privileges and immunities clause.

4.     The discrimination must be necessary to achieve an important government purpose.

Comparison of the Dormant Commerce Clause and the Privileges and

Immunities Clause of Article IV

Dormant Commerce Clause ·                Does not require discrimination against out-of-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

iii)   State taxation of Interstate Commerce:

(1)  States may not use their tax systems to help in-state businesses.

(2)  A state may only tax activities if there is a substantial nexus to the state.

(3)  State taxation of interstate businesses must be fairly apportioned.

iv)   Full Faith and Credit:

(1)  Courts in one state must give full faith and credit to judgments of courts in another state, so long as:

(a)  The court that rendered the judgment had jurisdiction over the parties and the subject matter.

(b)  The judgment was on the merits.

(c)   The judgment is final.

5.      The Structure of the Constitution’s Protection of Individual Liberties:

i)      Is there Government Action?

(1)  The Constitution applies only to government action.  Private conduct need not comply with the Constitution.

(2)  Congress, by statute, may apply constitutional norms to private conduct.

(a)  The 13^th Amendment can be used to prohibit private race discrimination.

(i)    Discrimination never violates the 13^th Amendment itself, but can violate federal statutes under the 13^th Amendment (which Article 2 of the 13^th Amendment allows it to do).

(b)  The commerce power can be used to apply constitutional norms to private conduct.

(c)   Congress cannot use §5 of the 14^th Amendment to regulate private behavior.

(3)  Exceptions (situations where private conduct must comply with the Constitution):

(a)  The public function exception - the Constitution applies if a private entity is performing a task traditionally, exclusively done by the government (e.g. – company-run town tries to prohibit free speech; Texas lets political parties run their own primary elections and then those parties won’t let blacks vote).

(i)    A narrow exception (e.g. – courts have found that running a utility is not something that is traditionally, exclusively run by the gov’t).

(b)  The entanglement exception - where the government affirmatively authorizes, encourages, or facilitates unconstitutional activity.

(i)    There is State Action where Courts enforce racially restrictive covenants (a contract among members of a neighborhood that they would not sell property to blacks or Jews – this would be authorizing such behavior through the court system).

(ii)  There is state action when the government leases space to a restaurant that racially discriminates.

(iii) There is state action when the government provides free books to private schools that racially discriminate.

(iv) There is state action when a private entity regulates interscholastic sports within the state (distinction from above: Court says this applies entirely within one state, while NCAA operates over a number of states).

(v)  There is not state action when a private school that is over 99% funded by the government fires a teacher because of her speech (gov’t subsidy is insufficient for a finding of state action).

(vi) There is not state action when the NCAA orders the suspension of a basketball coach at a state university.

(vii)                There is not state action when a private club with a liquor license from the state racially discriminates.

ii)    The Application of the Bill of Rights:

(1)  The Bill of Rights applies directly only to the federal government.

(2)  The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14^th Amendment.  Except:

(a)  The 2^nd Amendment right to bear arms (thus states could adopt any kinds of gun control laws they wanted).

(b)  The 3^rd  Amendment right to not have soldiers quartered in a person's home.

(c)   The 5^th Amendment right to grand jury indictment in criminal cases.

(d)  The 7^th Amendment right to jury trial in civil cases.

(e)   The 8^th Amendment right against excessive fines.

iii)   Levels of Scrutiny:

(1)  Rational basis test – a law is upheld if it is rationally related to a legitimate gov’t purpose (any legitimate, conceivable purpose).

(a)  Need not be least restrictive means.

(b)  Burden of proof on challenger.

(2)  Intermediate scrutiny – a law is upheld if it substantially related to an important gov’t purpose (court will only look at the government’s actual purpose).

(a)  Most likely, need not be least restrictive means.

(b)  Burden of proof on gov’t.

(3)  Strict scrutiny – a law is upheld if it necessary to achieve a compelling gov’t purpose (court will only look at the government’s actual purpose).

(a)  Must be least restrictive means.

(b)  Burden of proof on gov’t.

THE LEVELS OF SCRUTINY
	MEANS?	ENDS?	LEAST RESTRICTIVE ALTERNATIVE ANALYSIS?	BURDEN OF PROOF?
RATIONAL BASIS TEST	RATIONALLY RELATED	LEGITIMATE CONCEIVABLE  PURPOSE	NO	CHALLENGER
INTERMEDIATE SCRUTINY	SUBSTANTIALLY RELATED	IMPORTANT ACTUAL  PURPOSE	UNCERTAIN, BUT PROBABLY NOT	GOVERNMENT
STRICT SCRUTINY	NECESSARY	COMPELLING ACTUAL  PURPOSE	YES	GOVERNMENT

6.      Due Process:

i)      Procedural Due Process: The 14^th Amendment Due Process Clause provides procedural safeguards against arbitrary deprivation whenever a governmental agency acts to deprive a person of his or her “life, liberty or property interest.”

(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.

1.     Except in emergencies, before an adult can be institutionalized, there must be notice and a hearing.

2.     When a parent institutionalizes a child, there only must be a screening by a neutral fact-finder.

3.     Harm to reputation by itself is not a loss of liberty (must be tangible loss associated with loss of reputation).

4.     Prisoners rarely have a loss of liberty.

(ii)  A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled.

1.     An entitlement exists if there is a reasonable expectation to the continued receipt of a benefit.

a.     Example 1 – a person is told he will have a job for a year, it is taken away mid-year (entitlement – thus must get due process).

b.     Example 2 – teacher has contract that might be renewed at the end of the year (no expectation – thus no due process required when contract is not renewed).

(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. 

(i)    However, in emergency situations, the government is liable under due process only if its conduct “shocks the conscience” (e.g. – kid killed during police chase – likely does not shock the conscience).

(c)   Generally, the government's failure to protect people from privately inflicted harms does not deny due process (only if gov’t does actual harming).

(2)  What procedures are required?

(a)  The test – balance the following

(i)    the importance of the interest to the individual.;

(ii)  the ability of additional procedures to increase the accuracy of the fact-finding; and

(iii) the government interest in administrative efficiency (cost of additional procedures to the gov’t).

(b)  Examples:

(i)    Before welfare benefits can be terminated, there must be notice and a hearing.

(ii)  When social security disability benefits are terminated, there need be only a post-termination hearing.

(iii) When student is disciplined in public school, there must be notice of the charges and a chance to explain.

(iv) Before a parent’s right to custody of a child can be permanently terminated, there must be notice and a hearing.

(v)  Punitive damages awards require instructions to the jury and judicial review to assure reasonableness (grossly excessive violate due process).

(vi) Except in exigent circumstances, pre-judgment attachment and gov’t seizure of assets must be preceded by notice and a hearing.

1.     Due process does not require an innocent owner defense to gov’t seizure.

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 NO

What procedures must Government need not provide procedural

government supply?    due process.

    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

ii)    Substantive Due Process:

(1)  Ask whether the gov’t has an adequate reason for taking 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.

(i)    Is there a taking?

1.     possessory taking -  Government confiscation or  physical occupation of property is a taking.

2.     regulatory taking – Government regulation is a taking if it leaves no reasonable economically viable use of the property.

a.     Reduction of the value of property is not a regulatory taking.

b.     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).

c.     A property owner may bring a takings challenge to regulations that existed at the time the property was acquired.

d.    Temporarily denying an owner use of property is not a taking so long as the government’s action is reasonable.

(ii)  Is it for public use?

1.     If not for public use, gov’t must give the property back.

2.     For public use as long as the gov’t acts out of a reasonable belief that the taking will benefit the public (very broad).

(iii) Is just compensation paid?

1.     Measured in terms of loss to the owner in terms of reasonable market value (value to the taker is irrelevant).

(c)   The contracts clause - no state shall impair the obligations of contracts.

(i)    Applies only to state or local interference with existing contracts (doesn’t apply to the federal gov’t).

(ii)  State or local interference with private contracts must meet intermediate scrutiny.

1.     Called intermediate scrutiny but exact language is:

a.     Does the legislation substantially impair a party's rights under an existing contract?

i.      If so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

(iii) State or local interference with government contracts must meet strict scrutiny.

(iv) The ex post facto clause (which invalidates laws that criminally punishes conduct that was lawful when committed or increases the punishment for that conduct) does not apply in civil cases. 

1.     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.)

(3)  Privacy is a fundamental right protected under substantive due process.

(a)  The right to marry – fundamental right (thus gov’t must satisfy strict scrutiny).

(b)  The right to procreate - fundamental right (thus gov’t must satisfy strict scrutiny).

(c)   The right to custody of one's children - fundamental right (thus gov’t must satisfy strict scrutiny).

(i)    However, a state may create an irrebuttable presumption is the father of her child.

(d)  The right to keep the family together - fundamental right (thus gov’t must satisfy strict scrutiny).

(i)    Must be related to each other.

(e)   The right to control the upbringing of one's children – fundamental right (thus gov’t must satisfy strict scrutiny).

(i)    Parents have a right to choose to send their children to parochial schools.

(ii)  It violates due process for a court to order grandparent visitation over the parents’ objection

(f)   The right to purchase and use contraceptives – fundamental right (thus gov’t must satisfy strict scrutiny).

(g)   The right to abortion – strict scrutiny is no longer used for abortion rights

(i)    Current law for abortion rights:

1.     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.

a.     A requirement for a 24-hour waiting period for abortions is not an undue burden.

b.     A requirement that abortions be performed by licensed physicians is not an undue burden.

c.     The prohibition of “partial birth abortions”    is an impermissible undue burden.

2.     After viability, states may prohibit abortions unless necessary to protect the woman's life or health.

3.     The government has no duty to subsidize abortions or provide abortions in public hospitals.

4.     Spousal consent and notification laws are unconstitutional.

5.     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.

(h)  The right to refuse medical treatment – no level of scrutiny articulated

(i)    Competent adults have the right to refuse medical treatment, even life-saving medical treatment.

(ii)  A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended.

(iii) A state may prevent family members from terminating treatment for another.

(i)    There is no constitutional right to physician - assisted suicide (thus rationale-basis review).

(j)    The right to privacy does not protect private, consensual homosexual activity (thus rationale-basis review).

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 1st Amendment, §VIII) · Freedom of association (covered under 1st Amendment, §VIII) · Free exercise of religion (if the law burdening religion is not a neutral law of general applicability) (covered under 1st Amendment, §VIII)

Rights triggering     “Undue burden test” ·  Right to abortion

Not a fundamental right (Only rational basis review) · Right to practice a trade or profession · Right to physician-assisted suicide · Right to engage in private consensual homosexual activity · Right to education

7.      Equal Protection:

i)      An approach to Equal Protection Questions:

(1)  What is the classification?

(2)  What level of scrutiny should be applied?

(3)  Does this law meet the level of scrutiny?

ii)    Constitutional provisions concerning equal protection:

(1)  The equal protection clause of the 14^th Amendment applies only to state and local governments.

(2)  Equal protection is applied to the federal government through the due process clause of the 5^th Amendment.

iii)   Classifications Based on Race and National Origin:

(1)  Strict Scrutiny is used.

(2)  How is the existence of a racial classification proven?

(a)  The classification exists on the face of the law.

(b)  If the law is facially neutral, proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent.

(i)    Example:  discriminatory use of peremptory challenges based on race denies equal protection.

(3)  How should racial classifications benefiting minorities be treated?

(a)  Strict scrutiny is applied.

(b)  Numerical set-asides require clear proof of past discrimination.

(c)   Educational institutions may use race as one factor in admissions decisions to help minorities.

(d)  Seniority systems may not be disrupted for affirmative action.

(4)  Gender Classifications:

(a)  Intermediate scrutiny is used – Substantially related to Important governmental interest

(b)  How is the existence of a gender classification proven?

(i)    The classification exists on the face of the law.

(ii)  If the law is facially neutral, proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.

1.     Example: discriminatory use of peremptory challenges based on gender denies equal protection.

(c)   How should gender classifications benefiting women be treated?

(i)    Gender classifications benefiting women that are based on role stereotypes will not be allowed.

(ii)  Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed.

(5)  Alienage Classification:

(a)  Generally, strict scrutiny is used.

(b)  Only a rational basis test is used for alienage classifications that concern self-government and the democratic process.

(i)    The gov’t may discriminate against aliens with regard to voting, serving on a jury, and being a police officer, teacher, or probation officer.

(c)   Only a rational basis test is used for Congressional discrimination against aliens.

(i)    Congress has plenary power to regulate discrimination.

(d)  It appears that intermediate scrutiny is used for discrimination against undocumented alien children.

(6)  Discrimination against non-marital children:

(a)  Intermediate scrutiny is used.

(b)  Laws that deny a benefit to all non-marital children, but grant it to all marital children are unconstitutional.

(7)  Rational basis review is used for all other types of discrimination under the Constitution:

(a)  Age discrimination;

(b)  Disability discrimination;

(c)   Wealth discrimination;

(d)  Economic regulations;

(e)   Sexual orientation discrimination;

(8)  Fundamental rights protected under equal protection:

(a)  The right to travel:

(i)    Laws that prevent people from moving into a state must meet strict scrutiny.

(ii)  Durational residency requirements must meet strict scrutiny.

1.     For voting, 50 days is the maximum allowable durational residency requirement.

(iii) Restrictions on foreign travel need meet only the rational basis test.

(b)  The right to vote:

(i)    Laws that deny some citizens the right to vote must meet strict scrutiny.

1.     Poll taxes are unconstitutional.

2.     Property ownership requirements are almost never allowed (only once allowed for voting in a water district election).

(ii)  One-person - one-vote must be met for all state and local elections.

(iii) At-large elections are constitutional unless there is proof of a discriminatory purpose.

(iv) The use of race in drawing election district lines must meet strict scrutiny.

(v)  Counting uncounted votes without standards in a presidential election violates equal protection.

(c)   There is no fundamental right to education

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?

8.      The First Amendment:

i)      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 the law depends on the topic of the speech.

(ii)  viewpoint restrictions – where the application of the law depends on the ideology of the message.

(b)  Content-neutral laws burdening speech generally need only meet intermediate scrutiny.

(2)  Prior restraints: - a judicial or administrative order that stops speech before it occurs.

(a)  Gag orders on the press to prevent prejudicial pre-trial publications are not allowed.

(b)  Court orders suppressing speech must meet strict scrutiny.  Procedurally proper court orders must be complied with until they are vacated or overturned.

(i)    A person who violates a court order to barred from challenging it as unconstitutional.

(c)   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. 

(i)    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.

(b)  Overbreadth - a law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated (entire law is invalid).

(c)   Fighting words laws are unconstitutionally vague and overbroad (though fighting words are not protected by the 1^st Amendment)..

(4)  Symbolic speech - the government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government's purpose.

(a)  Flag burning is constitutionally protected speech.

(b)  Draft card burning is not constitutionally protected speech.

(c)   Nude dancing is not constitutionally protected speech.

(d)  Burning a cross or painting a swastika is constitutionally protected speech.

(i)    Gov’t may punish destruction of other’s property in such cases.

(ii)  Gov’t may punish cross-burning, etc. when its used as a threat.

(e)   Punishment enhancements for hate-motivated crimes are constitutional.

(f)   Contribution limits in election campaigns are constitutional; Expenditure limits are unconstitutional.

(5)  Anonymous speech is protected.

(a)  Don’t have to disclose identity in order to be able to speak.

ii)    What speech is unprotected or less protected by the 1^st Amendment?

(1)  Incitement of illegal activity – gov’t may punish if there is a substantial likelihood of imminent illegality and if the speech is directed at causing imminent illegality

(2)  Obscenity and sexually-oriented speech.

(a)  The test:

(i)    The material must appeal to the prurient interest (shameful or morbid interest about sex – a local or community standard).

(ii)  The material must be patently offensive under the law prohibiting obscenity.

(iii) Taken as a whole, the material must lack serious redeeming artistic, literary, political or scientific value (on a national scale).

(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.

(i)    Must actually use children in its production (not virtual or adults that look like children).

(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 1^st Amendment.

(i)    Exception: over the broadcast media

1.     It is uniquely intrusive into the home, so gov’t may regulate.

2.     This applies to public broadcast, but not to cable, which people voluntarily bring into their homes.

(ii)  Exception: in schools

(3)  Commercial speech:

(a)  False and deceptive ads are not protected by the 1^st Amendment.

(b)  True commercial speech that inherently risks deception can be prohibited.

(i)    The government may prevent professionals from advertising or practicing under a trade name (otherwise bad doctors, etc. could keep changing their trade name to fool the public).

(ii)  The government may prohibit attorney, in-person solicitation of clients for profit.

1.     States may not prohibit solicitation for free representation

2.     Letter solicitation is ok.

(iii) The government may not prohibit accountants from in-person solicitation of clients for profit.

(c)   Other commercial speech can be regulated if intermediate scrutiny is met.

(d)  Government regulation of commercial speech must be narrowly tailored, but it does not need to be the least restrictive alternative.

(4)  Defamation:

(a)  If the plaintiff is a public official or running for public office, the plaintiff can recover for defamation by proving falsity of the statement and actual malice (D knew the statement was false or acted with reckless disregard to the truth).

(b)  If the plaintiff is a “public figure'” the plaintiff can recover for defamation by proving falsity of the statement and actual malice.

(i)    Public figures are those who thrust themselves into the limelight.

(c)   If the plaintiff is a “private figure” and the matter is of “public concern,” that state may allow the plaintiff to recover compensatory damages for defamation by proving falsity and negligence by the defendant. 

(i)    However, the plaintiff may recover presumed (automatic damages – preset by law) or punitive damages only by showing actual malice.

(d)  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.

DEFAMATION
PLAINTIFF	LIABILITY STANDARD	DAMAGES	BURDEN OF PROOF
Public Official	Actual Malice	Compensatory Presumed/Punitive	Plaintiff Must Prove Falsity
Public Figure	Actual Malice	Compensatory Presumed/Punitive	Plaintiff Must Prove Falsity
Private Figure, Matter of Public Concern	Negligence and Actual Injury	Compensatory for Actual Injury; Presumed or Punitive Damages Require Actual Malice	Plaintiff Must Prove Falsity
Private Figure, Matter of Private Concern	Unclear -         Negligence	Compensatory for Actual Injury; Presumed or Punitive Damages Do Not Require Actual Malice	Unclear - Burden on Defendant to Prove Truth

(5)  Privacy

(a)  The government may not create liability for the truthful reporting of information that was lawfully obtained from the government.

(i)    e.g. – can’t punish reporter for invasion of privacy for printing name of rape victim that reporter lawfully obtained from a publicly available court record.

(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 dissemination of information to protect privacy.

(i)    Nothing requires the gov’t to turn information over to the press (public and press only have right to attend criminal trials).

(6)  Other government restrictions based on the content of speech must meet strict scrutiny.

iii)   What places are available for speech?

(1)  Public forums – government properties that the government is required to make available for speech (sidewalks, parks, etc.).

(a)  Regulations must be subject matter and viewpoint neutral (otherwise strict scrutiny).

(b)  Regulations must be a time, place, or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication.

(c)   Government regulation of public forums need not use the least restrictive alternative.

(i)    e.g. – NY adopts ordinance that in order to have concert in park, must use city equipment in order to limit notice.  Ps argued that city could simply set a decibel limit.  Court found that least restriction means is not necessary.

(d)  City officials cannot have discretion to set permit fees for public demonstrations.

(2)  Limited (designated) public forums – government properties that the government could close to speech, but chooses to open to speech.

(a)  example – school (generally non-public) that opens its doors to community groups in the evening.

(b)  Rules are the same as for public forums.

(3)  Non-public forums – government properties that the government constitutionally can and does close to speech. 

(a)  The government may regulate speech in non-public forums so long as the regulation is reasonable (meets a rational-basis test) and viewpoint neutral (need not be subject-matter neutral).

(i)    Examples:

1.     Military bases (even parts usually open to the public);

2.     Areas outside prisons and jails;

3.     Advertising space on city buses;

4.     Sidewalks on post office property;

5.     airports;

a.     Gov’t may prohibit solicitation of money but cannot prohibit distribution of literature (fails rational basis);

6.     Candidate debates sponsored by gov’t owned stations.

(4)  There is no 1^st Amendment right of access to private property for speech purposes.

(a)  e.g. – private owned shopping centers, etc.

PLACES AVAILABLE FOR SPEECH
	SUBJECT MATTER NEUTRAL?	VIEWPOINT NEUTRAL?	METHOD OF REGULATION ALLOWED?	INTEREST REQUIRED?
PUBLIC FORUMS (e.g., sidewalks, parks)	YES	YES	TIME, PLACE, OR MANNER	IMPORTANT
LIMITED PUBLIC FORUMS (i.e., non-public forums that the government opens to speech)	YES	YES	TIME, PLACE, OR MANNER	IMPORTANT
NON-PUBLIC FORUMS (e.g., military bases, airports)	NO	YES	REASONABLE	LEGITIMATE
PRIVATE PROPERTY	NO 1st AMENDMENT RIGHT TO USE  PRIVATE PROPERTY FOR SPEECH PURPOSES

iv)   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:

(a)  actively affiliated with the group;

(b)  knowing of its illegal activities; and

(c)   with the specific intent of furthering those illegal activities.

(2)  Laws that require disclosure of group membership, where such disclosure would chill association, must meet strict scrutiny.

(3)  Laws that prohibit a group from discriminating are constitutional unless they interfere with intimate association or expressive activity.

(a)  E.g. – all-male organization argues that freedom of association gives them the right to exclude women (court said no, gov’t has a legitimate interest in preventing discrimination).

(b)  Intimate association – picture a small dinner party;

(c)   Where discrimination is integral to expressive activity:

(i)    E.g. – KKK can exclude blacks; Boy scouts can exclude gays

v)   Freedom of Religion:

(1)  The free exercise clause:

(a)  The free exercise clause cannot be used to challenge a law of general applicability unless the law is motivated by a desire to interfere with religion (e.g. – peyote case: law of general applicability).

(b)  The government may not deny benefits to individuals who quit their jobs for religious reasons.

(2)  The establishment clause:

(a)  The test:

(i)    There must be a secular purpose for the law;

1.     If purpose is to advance religion, it violates the establishment clause.

2.     e.g. – no secular purpose in KT law requires the posting of the 10 commandments in public schools.

(ii)  The effect must be neither to advance nor inhibit religion; and

1.     The gov’t may not symbolically endorse religion or a particular religion.

a.     Nativity scene, menorahs, etc (all by themselves) – unconstitutional

i.      OK if accompanied by symbols of other religions and secular symbols.

(iii) There must not be excessive entanglement with religion.

1.     Generally can’t directly pay teachers salaries in parochial schools.

(b)  The government cannot discriminate against religious speech or among religions unless strict scrutiny is met.

(i)    E.g. - Christian student group should get funds entitled to all student groups (can’t discrimination b/c it’s a religious group).

(c)   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.

(i)    School prayer is unconstitutional.

(ii)  Voluntary prayer is unconstitutional.

(iii) Clergy delivered prayer is unconstitutional.

(iv) Student delivered prayer is unconstitutional.

(v)  Moment of silent prayer is unconstitutional.

(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.