Con Law Basics

• Law which seeks to regulate speech is presumptively unconstitutional. 
• To justify content-based regulation of speech, the government must show that the ordinance is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. 
• *Content-neutral-subject to strict scrutiny, and will be upheld if the gov can show 
• 1)advance important interest unrelated to suppression of speech
• 2) do not burden substantially more speech than necessary to further those interest

• To be valid, gov regulation on public forum speech must be 
• 1) content neutral
• 2) narrowly tailored (least burden on speech)
• 3)serve significant government interest
• 4)leave alternitive channels of communication

(Regulation in designated public forums=must meet same standard)

• Regulation in private forums: 
• 1) viewpoint neutral
• 2) reasonably related to legitimate gov interest.

• Art III, fed courts only have jurisdiction where actual case and controversy. Thus, plaintiff must have standing to assert claims in Fed court. Standing occurs when:
• 1) actual or imminent injury
• 2) cause by defendants conduct
• 3) redressible by the court

• Association my sue on behalf of its members 
• 1) the members would have standing to sue on their own
• 2) the interests of the litigation are germane to the organizations purpose
• 3)members would not need to participate in the suit

• A taxpayer has standing if
• 1) law was enacted under Congress's taxing and spending power
• 2) he alleges that congress has exceeded some specific limitation on that power 
• (logical nexus test)

Prohibits laws respecting the establishment of religion. If Gov regulation or activity gives preference to one religious sect over another, it is invalid unless it is narrowly tailored to sever a compelling state interest. 

• If Gov regulation or action contains no sect preference=vlaid under Establishment Clause if
• 1)secular purpose (non religious)
• 2) neither advances or inhibits religion
• 3) does not produce excessive Gov entanglement with religion. (excessive entanglement=involvement)

• Strict: Compelling state interest and means necessary to achieve 
• Intermediate: Importance state interest and means substantially related
• Rational Basis: Legitimate state interest and means rationally related

• Suspect: race and alienage=strict scrutiny
• Quasi Suspect: gender and illegitimacy=intermediate scrutiny
• Other classes: wealth, age, disability, sexual orientation=rational basis

• Has the government deprived a person of life liberty (a significant freedom secured by the Constitution or statue) or property (an entitlement to a continued receipt of a benefit). 
• What process is due? Balance: 1) importance of interest 2) ability of additional procedures to increase the accuracy of the fact finding and 3) gov. interest

• Does the gov have an adequate reasoan to take away a persons life, liberty or property=generally must meet strict crutiny
• a) economic liberties=rational basis test
• b)Taking=public purpose+just compensation
• c)Abortion=cant place an undue burden on the ability to obtain an abortion

• Article III provides that the federal courts only have jurisdiction where there is an actual case and controversy. 
• There is standing where the plaintiff alleges (1) an actual or imminent injury, (2) which was caused by the defendant’s conduct, and (3) which is redressible by the court.

• Must show:
• (1) members would have standing to sue on their own;
• (2) interests are germane to the organization’s purpose;
• (3) no need for member participation

• (generally establishment clause) Must show:
• (1) enacted under Congress’s taxing and spending power;
• (2) exceeds some specific limitation on power

• fitness of the issue
• question of hardship if review is denied

• actual controversy must exist at all stages of lit.,
• except: wrong capable of repetition but evading review, voluntary cessation

• Judicial (justiciability requirements + final judgment rule)
• Executive (foreign and domestic powers and limitations, especially executive privilege)
• Legislative (sources of power and limitation)

Congress may regulate the channels and instrumentalities of interstate commerce. And, may regulate economic activity that has a substantial effect on interstate commerce.

Elements: Article 1 sec 8/Regulate Channels of IC/ National/Cumulative EE (Reg I& P/T IC)/Regulate Activies Substantially Effect IC/Moderly-Broad Powers/ Argue Facts/ FED-N/P Clause / State 10th Am / New York v. US

Congress may use any means not prohibited by the constitution to carry out its authority.

All powers not granted to the US, nor prohibited to the states, are reserved to the states.  So, Congress cannot compel state regulatory or legislative action.  But, Congress can induce state gov. action by putting strings on grants, so long as related to spending program.

President has no power to declare war, but may act militarily in actual hostilities against the US w/out a congressional declaration of war under his broad power as Commander-in-Chief to use American troops in foreign affairs. Congress may limit by military appropriations.

• President has paramount power to represent the US in foreign relations.
• Treaties: President has power to enter treaties w/ the consent of 2/3 of the senate
• Executive Agreement: President has power to sign an executive agreement with the head of a foreign country. No Senate consent required.

Under the supremacy clause, a federal law is the supreme law of the land, and thus may preempt or supersede state law. (express or implied

principal that state and local laws are unconstitutional if they place an undue burden on interstate commerce. 

Elements: Article 1 Sec 8/Concurrent Power/10th Am/ Facial Discrimination (exceptions?)/ Balance Burden on IC/ Alternative Means

• presumed undue burden on interstate commerce, unless it is necessary to achieve an important government purpose
• Exceptions: (1) congressional approval, (2) market participant.

• no state may deny to citizens on another state the privileges and immunities of its own citizens. 
• Violated where state regulation discriminates against individuals with regard to important economic activities or civil liberties unless it is necessary to achieve an important government interest

the Constitution only applies if there is action by a state or local gov officer or private individual whose behavior meets the requirements for state action.  E.g. individual or entity perform exclusive public function or has significant state involvement in their activities

• (1) gravity of harm justifies restraint; and
• (2) necessary to prevent harm

• A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. 
• A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated.

is protected (e.g. flag burning, cross burning (unless a threat), expenditures)

• Incitement of illegal activity: if substantial likelihood of imminent illegal activity
• Obscenity: if (1) appeals to prurient interest, (2) patently offensive under the law, (3) taken as a whole, lacks serious redeeming, artistic, literary, political or scientific value.
• Commercial speech: that inherently risks deception or ads for illegal activity

• Public Forums (e.g. sidewalks parks): regulations must be content and viewpoint neutral; may regulate the time, place and manner of speech to serve important interest. Must leave open adequate alternative places for communication.
• Limited Public Forums (non-public forums gov. opens to speech): same as above
• Non-Public Forums (military bases, airports, schools): gov may regulate so long the regulation is reasonable and viewpoint neutral

• laws that prohibit or punish membership in a group must meet strict scrutiny.  Must prove that the person
• (1) actively affiliated,
• (2) knowing of its illegal activities,
• (3) with the specific intent to further those activities

• the test:
• (1) law must have a secular purpose,
• (2) neither advances nor inhibits religion,
• (3) no excessive entanglement w/ religion.

• no state shall impair the obligation of contracts. 
• Interference w/ private Ks → intermediate scrutiny; gov Ks → strict scrutiny.
• Retroactive civil liability need only meet rational basis review

• Strict – compelling state interest and means necessary to achieve state interest
• Intermediate – important state interest and means substantially related
• Rational basis – legitimate state interest and means rationally related

• Suspect – race and alienage → strict scrutiny
• Quasi suspect – gender and illegitimacy → intermediate scrutiny
• Other classes – wealth, age, disability, sexual orientation → rational basis

Prohibits state governments from denying any person within its jurisdiction the equal protection of the laws.  While the 14th Amendment applies exclusively to state governments, grossly unreasonably discrimination by the federal government is prohibited by the Due Process Clause of the 5th Amendment.  Under either provision, the analysis is the same

• 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).
• What process is due?  Balance: (1) importance of interest to the individual, (2) ability of additional procedures to increase the accuracy of the fact finding; and (3) gov. interest

does the gov have an adequate reason to take away a persons life, liberty or property → generally must meet strict scrutiny.

• Economic liberties → rational basis test
• Taking → public purpose + just compensation
• Abortion → can’t place an undue burden on the ability to obtain an abortion