Foundations
When will the constitution apply to private conduct? (i.e. What are the exceptions to State Action?)
(1) Exclusive government function - a private entity performing a task traditionally performed by the government
(2) Significant state involvement (entanglement) - government affirmatively authorizes or facilitates the private conduct
What is the analysis to determine if procedural due process has been violated?
(1) There must be a deprivation of life, liberty, or property.
(2) The deprived citizen must receive notice, an opportunity to be heard on the matter, in front of a neutral decisionmaker. In determining what procedures are required, balance: (i) the importance of the individual interest involved; (ii) the value of procedural safeguards to that interest; & (iii) the government's interest in fiscal or administrative efficiency.
What is the brief analysis for an EP clause violation?
(1) Is there a discriminatory classification?
(2) What level of scrutiny applies to that classification?
(3) Does the classification satisfy the level of scrutiny?
Are undocumented "aliens" a suspect, quasi-suspect, or not a suspect classification?
They are not a suspect classification.
What is the 1A Freedom of Speech framework?
(1) Is the speech protected or unprotected? If unprotected, use the specific test for that speech.
(2) Is the protected speech being regulated in a content-based or content-neutral manner?
(3) If content-based, strict scrutiny. If content-neutral, intermediate.
(4) If speech is taking place on government property, apply the special rules for the forum.
*Always watch for vagueness or overbreadth*
What are the three levels of scrutiny and who bears the burden?
Rational Basis: The law must be rationally related to a legitimate government purpose. The challenger bears the burden.
Intermediate: The law must be substantially related to an important government interest. The government bears the burden.
Strict: The law must be necessary to achieve a compelling government interest. The government bears the burden.
What is the difference between procedural due process and substantive due process?
Procedural due process requires fair process for the government to take or deprive someone of their life, liberty or property. Substantive due process determines whether the government has adequate reasons for doing so by considering whether fundamental or non-fundamental rights are violated.
What makes a classification "discriminatory?"
(i) If it is facially discriminatory; (ii) if it is a neutral law on its face but has a discriminatory application and intent behind it; (iii) if it is a neutral law on its face but has a disparate impact on a protected class and motive/purpose to do so.
*Discriminatory effect is not enough; need some intent.*
When are gender classifications benefitting women impermissible and when are they permissible?
Impermissible when they are based on stereotypes; Permissible when they are designed to remedy past discrimination or differences in opportunity.
What is the test for government regulation of symbolic speech?
(1) The regulation furthers an important government interest that is unrelated to the suppression of the message and (2) the impact on speech is no greater than necessary to further the important interest.
If the regulation is aimed more at speech than at conduct, it is likely unconstitutional.
How has the Bill of Rights been incorporated to the states and how does the 14th Amendment apply to the federal government?
The Bill of Rights has been incorporated to the states through the 14th Amend DP Clause. The 14th Amendment has been held to be incorporated to the federal government through the 5th Amend DP Clause.
What level of scrutiny applies to economic rights?
Bonus: What scrutiny applies to the Contracts Clause?
Economic rights get rational basis unless the infringement falls under the Contracts Clause or Takings Clause.
Bonus: If it's a private contract, intermediate scrutiny + narrowly tailored; if it's a government contract, strict scrutiny.
When does Alienage receive rational basis review and when does it receive strict scrutiny?
It receives rational basis when (i) the law relates to self government and the democratic process or (ii) congress is taking action concerning immigration.
It receives strict scrutiny when the state and local levels use it as a classification for anything else.
What standard must be met for state and local elections vs. elected bodies? What standard must be met for congressional elections?
For state and local elections, there must be "one person, one vote." For elected bodies, voting districts must be "substantially equal" in population (no more than a 10% variance).
For congressional elections, states must use almost the exact mathematical equality when creating congressional districts.
What makes a law vague and what makes a law overbroad?
Vague if a reasonable person cannot tell whether/what kind of speech is prohibited and what is allowed.
Overbroad if it regulates substantially more speech than the Constitution allows to be regulated. An over broad law regulates unprotected speech but in doing so also restricts protected speech.
What is the enabling clause and to which amendments does it apply to?
It allows congress to legislate to enforce the post-civil war amendments (13, 14, and 15).
Where is the Takings Clause found in the constitution and what is the brief analysis?
The Fifth Amendment prohibits the government from taking private property without providing just compensation.
Analysis: (1) Has there been a taking? (2) Is the taking for public use? (3) Was just compensation paid?
Who bears the burden to show whether a law is or is not discriminatory?
The challenger
What is protected commercial speech and how can it be regulated?
Commercial speech is protected when it concerns lawful activity and is not misleading.
It can be regulated when it directly advances a substantial government interest and is narrowly tailored.
What are the added requirements for defamation of a public figure or public concern?
The plaintiff must show that the statement was false and that the defendant was at fault. If the plaintiff is a public figure, actual malice is required (knowledge or recklessness).
If the plaintiff is a private figure suing on a matter of public concern, a negligence standard applies.
What are the requirements for a congressional law passed pursuant to the 14th amendment?
The law must (1) point to a history & pattern of state violation of rights and (2) be proportional and congruent to solving the violation
What is the difference between a possessory taking and a regulatory raking?
A possessory taking occurs when the government takes or occupies physical property. A regulatory taking is when government action denies a landowner of all economic value to his land.
*When there is only a decline in value to the land, the court balances (1) the public purpose, (2) how much the value has declined, and (3) the interference with the owner's investment-backed expectations.
What are the rules regarding quotas and the use of race in admissions?
Quotas must be based on clear proof of persistent and readily identifiable discrimination that cannot be based on general past wrongs.
A diverse student body is a compelling interest in higher education, so race and national origin can be used as a factor in admissions but not as a defining criterion where no race-neutral alternatives would accomplish the same goal.
(1) What standard applies to public forums and designated public forums when they are open to speech?
(2) What standard applies to nonpublic forums and limited public forums?
(1) Regulation must be content neutral, narrowly tailored to serve an important government interest, and must leave open alternative channels of communication.
(2) Regulation must be viewpoint neutral, and be reasonably related to a legitimate government purpose.
What is a prior restraint and how can it be upheld?
It is a court order or other ban on speech before the speech occurs. Strict scrutiny applies, but they are upheld if there is a significant interest justifying the restraint (like national security) and there are procedural safeguards in place for whose speech is being restrained.