1.
"Content Neutral" Regulation of
Time, Place, Manner (Method): Apply 3-part test. Regulation must:
1. Further a significant government interest
2. Be narrowly tailored, and
3. Leave open alternative channels of
communication
2.
"Content Specific" Regulation: "Protected" Speech "Unprotected' Speech
1. Clear and Present
Danger
2. Defamation
3. Obscenity
4. Child Pornography
5. "Fighting words"
6. Fraudulent commercial
speech
Apply Strict Scrutiny
3.
"Fundamental" Right to Vote
Apply Strict Scrutiny: (4): 1. Discrimination in voting
2. Reapportionment
3. Switching party affiliation
4. Ballot restrictions based on "special
interests" (land ownership)
4.
4 Facial Attacks: 1. Overbreath
2. Vagueness
3. Prior Restraints
4. Unfettered Discretion
5.
11th Amendment: A state may not be sued in federal court by its
own citizens or citizens of another state
without consent
6.
Abortion (Casey): A state may regulate abortion
provided no "undue burden" is
placed on a woman's right to
obtain an abortion.
7.
ABSTENTION: Federal court will refuse to review a case based
on an unsettled issue of state law (Pullman)
Federal court review prohibited where there are
pending state criminal proceedings (Younger)
8.
Affectation Doctrine: Congress may regulate any
activity which has a "substantial
economic effect" on interstate
commerce.
9.
Appointment Clause
Article 2, Section 2: President appoints "principal officers" with
Senate consent (e.g., Cabinet Members,
Heads of Departments).
Congress delegates appointment of "inferior
officers" (e.g., Deputy Cabinet Members,
Members of Federal Agencies) to:
The President
Heads of Departments, and/or
The Judiciary
10.
Article IV Privileges and
Immunities Clause: Prevents economic discrimination
by one state against citizens or
residents of another state,
UNLESS a substantial
government interest exists.
11.
Bill of Attainder: Legislative punishment of a
named group or individual without
judicial trial.
12.
Case and Controversy
Requirement: Federal Court adjudication
requires an actual and definite
dispute between parties having
adverse legal interests.
13.
Con Law Approach (3): 1. Underline who is passing the law
2. Determine the subject matter of
the question
3. Match the appropriate power of
regulation
14.
Election Funding: "Total Spending" limits by a
candidate- Unconstitutional
Individual campaign contribution
limits- Constitutional if "reasonable"
15.
Establishment Clause
(Lemon v. Kurtzman)
In order not to violate establishment
clause:: 1. The primary purpose must be secular
2. Primary effect must neither inhibit nor
advance religion
3. No excessive government entanglement
with religion
16.
Ex Post Facto Clause
Invalidates retroactive criminal
laws that:: 1. Make criminal conduct that was not
a crime when committed; or
2. Decrease the amount of evidence
needed to convict/change the
procedure(s) for conviction.
17.
Exceptions: 1. State officials may be sued personally for
a) money damages or
b) enjoined for federal law violations
2. A state may be sued by another state or by the United States
3. Congress may waive a state's 11th Amendment immunity under
the Enforcement Clause of Section 5 of the 14th Amendment
18.
Free Exercise Methodology: Purposeful interference Apply strict scrutiny test
Incidental burden Apply rational basis test
19.
Fundamental Right of Privacy
CAMPER: C Contraception
A Abortion
M Marriage
P Procreation
E Private Education
R Family Relations
20.
Generally Wrong Answers: 1. General Welfare Clause
2. Necessary and Proper Clause
3. 14th A. Privileges and Immunities Clause
4. Contracts Clause
5. Distinction between Rights & Privileges
6. 10th Amendment- caveat New York v.
U.S.
21.
Hierarchy of Laws: 1. Constitution
2. Act of Congress
Treaty
3. Executive Agreement- foreign
policy/affairs
Executive Order - domestic policy
4. State Law
22.
Justiciability
R.A.M.P.S.: Ripeness
Advisory Opinions
Mootness
Political Questions
Standing
23.
MOOTNESS: A case is moot unless an actual
controversy exists at all stages of review, unless
the injury is capable of repetition, yet evading
review
24.
Obscenity Test (Miller v. Calif): To be obscene the material must:
1. Appeal to the prurient interest in
sex;
2. Depict sexual conduct in a patently
offensive way; and
3. Lack serious literary, artistic, political
or scientific value
25.
Preemption Doctrine:: Any state law in
an area where Congress intends to
occupy the field is unconstitutional.
26.
Procedural Due Process: The procedural safeguards of
notice and a hearing are available
whenever there is a serious
deprivation of any life, liberty, or
property interest.
27.
Property Power
Rule:: Congress has the power to
dispose of the territory or other
property belonging to the United
States.
28.
RIPENESS: For a case to be ripe, there must be
a genuine, immediate threat of harm
29.
Standing
Rule:
Con Standards:: Plaintiff must show a concrete
personal stake in the outcome.
1. Injury-in fact (i.e., economic, aesthetic,
environmental)
2. Causation/redressibility
30.
State Action: A threshold requirement of
government conduct which must be
satisfied before private discrimination
can be restricted under the 1st, 4th,
14th or 15th Amendments (e.g., public
function; significant state involvement
or "encouragement").
31.
Statute Neutral on its Face
Plaintiff must show:: 1) discriminatory effect, and
2) discriminatory purpose
To raise the burden of persuasion above
rational basis.
32.
Statutory Regulation of Appellate
Jurisdiction: 1. By Certiorari (discretionary; the
"Rule of 4")
2. By Appeal (very limited)
33.
Substantive Due Process: A term used to classify the source
from which the fundamental rights
(right to vote, right to travel, right
to privacy) derive.
34.
Supremacy Clause
Supersession Doctrine:: A federal law
will supersede any state law in direct
conflict.
35.
To Uphold a Federal Statute (3): 1. Supremacy clause
2. Any enumerated power of
Congress (Art. 1, Sec. 8)
3. Federal property power
36.
To Uphold a State Statute (2): 1. Dormant Commerce Clause
a. Non-discriminatory
b. No undue burden on interstate
commerce -use a balancing
test
2. Police Power- health, safety,
welfare, morals, aesthetics
37.
Vice Advertising
(Central Hudson)
Government regulation must:: 1. Directly advance
2. a substantial governmental interest,
and
3. be "narrowly tailored"
38.
Voting Issue Not Deemed
"Fundamental": Apply Rational Basis
The right to be a candidate
1. Payment of a filing fee
2. Both minimum and maximum age
restrictions
