constitutional law flash cards copyright 2010 patrick gould, j.d., m.a. professor

CONSTITUTIONAL LAW FLASH CARDS

COPYRIGHT 2010 PATRICK GOULD, J.D. , M.A.

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Professor Gould's Bar Examination Flash Card Webinar SeriesCONSTITUTIONAL LAW

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CONSTITUTIONAL LAW SHOPPING LIST






COPYRIGHT 2010 PROFESSOR GOULD, J.D. , M.A. http://www.TheLawProfessorOnline.com

CONSTITUTIONAL LAW SHOPPING LIST

1. JUSTICABILITY 2. STANDING 3. GOVERNMENT POWERS

4. GOVERNMENT IMMUNITY 5. STATE ACTION REQUIREMENT 6. ARTICLES CLAIMS 7. FIRST AMENDMENT CLAIMS 8. FIFTH AMENDMENT CLAIM 9. FOURTEENTH AMENDMENT CLAIMS


PREAMBLE ISSUES FOR ESSAYS







PREAMBLE ISSUES FOR ESSAYS

JUSTICABILITY.ARTICLE III, SECTION 2.REAL, LIVE CASE OR CONTROVERSY.NO POLITICAL QUESTIONS OR ADVISORY OPINIONS.FEDERALISM. If Claim is Filed in State Court.ABSTENTION. STANDING.INJURY IN FACT. Imminent Injury.CAUSATION.INDIVIDUATION. Jus tertii. Organizations. Taxpayer Suits.REDRESSIBILITY.RIPENESS.MOOTNESS.

GOVERNMENTAL POWERS.STATES, 10TH AMENDMENT. Broad.Limitation on Federal Action for Regulation and Grants.FEDERAL, ARTICLES I AND IV. Limited and Enumerated. 11th AMENDMENT STATE IMMUNITY.EXCEPTIONS. State Officers, Municipalities, Sub-Divisions, State Consent, Injunctive and Declaratory Relief, Congressional Removal of Immunity for 14th Amendment Suits. STATE ACTION REQUIREMENT.PUBLIC FUNCTION DOCTRINE.STATE INVOLVEMENT DOCTRINE.


ARTICLE I







ARTICLE I

FEDERAL LEGISLATIVE POWER. ARTICLES I AND IV. SPECIFIC, LIMITED, ENUMERATED POWERS.CANNOT VIOLATE OTHER PARTS OF CONSTITUTION.MAY REGULATE FEDERAL LANDS.NECESSARY AND PROPER CLAUSE. Not an Independent Source of Power. DELEGATION OF LEGISLATIVE POWER. Clear and Intelligible Standards, and Powers Delegated are Not Uniquely Held by Congress. May Not Usurp Power from Other Branches. TAXING AND SPENDING POWER. Tax and Spend for General Welfare. Conditional Spending Power for Federal Funds, as Long as Conditions are Related to Purpose of Funds and Conditions are Clearly Articulated.


ARTICLE I, con’t







ARTICLE I, con’t

VETO POWER.Article I, Section 7.Legislation Passed by Both Houses Present to President.If Affirmed, then Made Law.If Not Affirmed, then Returns to Original House of Congress, and May Override Veto by Two-Thirds Vote.If President Fails to Take Action Within Ten Days, Bill Becomes Law.POCKET VETO. If Less than Ten Days in Session of Congress, Bill Fails to Become Law Under a Pocket Veto. LEGISLATIVE VETO. Unconstitutional.Where Congress Attempts to Overturn Executive Action without a Bicameral Passage by the House of Representatives and the Senate, or Presentment of the Bill to the President for Signature or Veto.

ARTICLE IV, FEDERAL PROPERTY POWER. Congress May Regulate All Federal Property.COMMERCE CLAUSE.Under Article I, Section 8, the Commerce Clause, Congress May Regulate:CHANNELS. INSTRUMENTALITIES. PERSONS AND THINGS. SUBSTANTIAL EFFECT. Cumulative Impact Test, Affectation Doctrine. TENTH AMENDMENT LIMIT ON FEDERAL POWERS.BROAD POLICE POWER OF STATES TO REGULATE.LIMITATION ON FEDERAL ACTION. Congress May Not Compel State Regulatory or Legislative Action, or Otherwise Commander States to Enforce Federal Legislation. Federal Grants Must Have Clear Conditions Relating to Purpose of the Grant. Congress May Prohibit Harmful Commercial Activity, and Enforce Regulations of General Applicability.


FEDERAL EXECUTIVE POWERS







FEDERAL EXECUTIVE POWERS

FEDERAL EXECUTIVE POWERS. ARTICLE II.FOREIGN POWER / TREATIES. EXECUTIVE AGREEMENTS. COMMANDER-IN-CHIEF. DOMESTIC AFFAIRS.APPOINTMENT POWER.REMOVAL POWER. IMPEACHMENT. PRESIDENTIAL IMMUNITY. PRESIDENTIAL PRIVILEGE. PARDONING POWER. VETO POWER.


ARTICLE III COURT POWERS







ARTICLE III COURT POWERS

SUPREME COURT REVIEW. ARTICLE III COURTS. ORIGNAL AND EXCLUSIVE JURISDICTION FOR SUITS BETWEEN STATES, WRIT OF CERTIORARI. JUDICIAL REVIEW. MANDATORY REVIEW FOR 3-JUDGE FEDERAL COURT.FINAL JUDGMENT RULE. ADEQUATE AND INDEPENDENT STATE GROUNDS.

11TH AMENDMENT IMMUNITY / SUITS AGAINST STATE GOVERNMENT. EXCEPTIONS. State Officers, Municipalities, Sub-Divisions, State Consent, Injunctive and Declaratory Relief, Congressional Removal of Immunity for 14th Amendment Suits. ABSTENTION DOCTRINE. PULLMAN DOCTRINE. YOUNGER DOCTRINE.


INTERGOVERNMENTAL ISSUES







INTERGOVERNMENTAL ISSUES

INTERGOVERNMENTAL IMMUNITY. FEDERAL IMMUNE FROM STATE TAX / REGULATION. STATE MAY TAX FEDERAL CONTRACTORS. FEDERAL MAY SUE STATES. STATES MAY SUE EACH OTHER.

STATE TAXATION OF INTERSTATE COMMERCE. STATE TAX MUST BE REASONABLE AND NON-DISCRIMNATORY. SUBSTANTIAL NEXUS BETWEEN STATE INTEREST AND ACTIVITY TAXED. RATIONAL FORMULA TO APPORTION TAXES. GOODS MAY BE TAXED AT BEGINNING AND END.


PLAINTIFF’s CLAIMS BASED IN ARTICLES







PLAINTIFF’s CLAIMS BASED IN ARTICLES

COMMERCE POWER. ARTICLE I, SECTION 8. CHANNELS. INSTRUMENTALITIES. PERSONS AND THINGS. SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE. Cumulative Impact Test, or Affectation Doctrine. DORMANT COMMERCE CLAUSE.ARTICLE I, SECTION 8. STATE REGULATION AFFECTING INTERSTATE COMMERCE.BALANCING TEST. Burden on Interstate Commerce Must Not Exceed the Benefits of the Regulation, Unless the Regulation is Necessary to Achieve an Important Government Interest, with No Less Restrictive Alternatives.CORPORATIONS AND ALIENS. Allowed.MARKET PARTICIPATION EXCEPTION.


PLAINTIFF’s CLAIMS BASED IN ARTICLES, con’t







PLAINTIFF’s CLAIMS BASED IN ARTICLES, con’t

ARTICLE IV PRIVILEGES AND IMMUNITIES CLAUSE. Discrimination by a State Against Non-Residents.FUNDAMENTAL RIGHTS. Earn a Livelihood, Acquire and Possess Property, Travel or Reside in State for Purposes of Trade, Court Actions, Taxes, Civil Liberties, or Other Important Economic Interests.REGULATION ALLOWED IF: Necessary to Achieve an Important Government Purpose, and There are No Less Discriminatory Alternatives. Differential Standards Related to Professions, Tuition and Licenses is Allowed.NO CORPORATIONS OR ALIENS.

SUPREMACY CLAUSE / FEDERALISM.PREEMPTION / SUPREMACY CLAUSE. EXPRESS PREEMPTION. IMPLIED PREEMPTION. STATE TAXES ON FEDERAL ACTIVITY. CONTRACTS CLAUSE.Article I, Section 10.PRIVATE CONTRACTS. GOVERNMENT CONTRACTS. EX POST FACTO REGULATIONS.

BILLS OF ATTAINER.


RIGHTS OF INDIVIDUALS







RIGHTS OF INDIVIDUALS

BILL OF RIGHTS.FIRST TEN AMENDMENTS. Directly Applicable to the Federal Government.SELECTIVE INCORPORATION VIA 14TH AMENDMENT.Due Process Clause of 14th Amendment.Makes Some of the Bill of Rights Applicable to States.NOT INCORPORATED. 2nd Right to Bear Arms, 3rd Right Against Quartering Soldiers, 5th Right to Grand Jury Indictment in Criminal Trials, 7th Right to a Jury Trial in Civil Cases, and 8th Right Against Excessive Fines.


LEVELS OF REVIEW







LEVELS OF REVIEW

RATIONAL BASIS REVIEW.RATIONAL RELATIONSHIP. Means to Ends Test.LEGITIMATE GOVERNMENT PURPOSE.BURDEN ON PLAINTIFF.FATAL TO PLAINTIFF. INTERMEDIATE LEVEL HEIGHTENED REVIEW.SUBSTANTIAL RELATIONSHIP. Means to Ends Test.IMPORTANT GOVERNMENT PURPOSE.BURDEN ABOUT EQUAL.RESULT ABOUT EQUAL. STRICT SCRUTINY REVIEW.NECESSARY RELATIONSHIP. Means to Ends Test.COMPELLING GOVERNMENT PURPOSE.NO LESS RESTRICTIVE ALTERNATIVES.BURDEN ON PLAINTFF.FATAL TO GOVERNMENT.


FIRST AMENDMENT RIGHTS







FIRST AMENDMENT RIGHTS

FIRST AMENDMENT. SELECTIVE INCORPORATION TO STATES VIA THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT.


FREEDOM OF EXPRESSION







FREEDOM OF EXPRESSIONFIRST AMENDMENT. LICENSING STATUTES. TIME, PLACE, MANNER RESTRICTIONS MUST BE CLEARLY WRITTEN, AND NARROWLY DRAWN. COLLATERAL BAR RULE. NO UNDUE DISCRETION IN LICENSING. IMPORTANT GOVERNMENT INTEREST, AND REASONABLE REGULATIONS. FACIALLY INVALID STATUTE. UNFETTERED DISCRETION.PRIOR RESTAINTS. Chilling Effect.VAGUENESS.OVERBREADTH.COLLATERAL BAR RULE. Court Orders. PROTECTED SPEECH. CONTENT-BASED REGULATONS. STRICT SCRUTINY. Compelling Government Interest, Necessary Means to Ends Fit, and No Less Restrictive Alternatives.CONTENT-NEUTRAL REGULATIONS. INTERMEDIATE / HEIGHTENED SCRUTINY. Important Government Interest, Met Through Substantial Means to Ends Fit.SYMBOLIC SPEECH. MAY REGULATE IF THERE IS IMPORTANT GOVERMENT INTEREST UNRELATED TO MESSAGE.

UNPROTECTED SPEECH. CLEAR AND PRESENT DANGER / IMMINENT INCITATION. DEFAMATION. CHILD PORNOGRAPHY. FIGHTING WORDS. OBSCENITY. LOYALTY OATHS. COMMERCIAL SPEECH. FREEDOM NOT TO SPEAK. FORUMS OF SPEECH.PUBLIC FORUMS. NON-PUBLIC FORUMS. DESIGNATED PUBLIC FOUMS. PRIVATE PROPERTY. R PRIOR RESTRAINTS. REGULATION BEFORE PUBLICATION. Chilling Effect. STRICT SCRUTINY. Compelling Government Interest, Necessary Means to Ends Fit, and No Less Restrictive Alternatives. COURT ORDERS / COLLATERAL BAR RULE. GAG ORDERS. Balancing of First Amendment Free Speech Rights Against Sixth Amendment Rights of Criminal Defendant to a Fair Trial. Must be a Clear and Present Danger to Fair Trial Rights, No Other Reasonable Alternatives, Injunction Must Protect Defendant's Rights.


ESTABLISHMENT CLAUSE







ESTABLISHMENT CLAUSE

ESTABLISHMENT CLAUSE / RELIGION. FIRST AMENDMENT. GOVERNMENT MAY NOT AID, OR HINDER RELIGION. LEMON TEST. 1. SECULAR PURPOSE. 2. PRIMARY EFFECT DOES NOT HELP / HINDER RELIGION. 3. NO EXCESSIVE GOVERNMENT ENTANGLEMENT.


FREEDOM OF RELIGIOUS PRACTICE







FREEDOM OF RELIGIOUS PRACTICE

FREEDOM OF RELIGIOUS PRACTICE. FIRST AMENDMENT. BONA FIDE / SINCERELY HELD RELIGIOUS BELIEF. DIRECT BURDENS ON RELIGIOUS PRACTICE. Strict Scrutiny Test, and Must Have Compelling Government Interest, Met Through Necessary Means, with No Less Restrictive Alternatives. INDIRECT BURDENS ON RELIGIOUS PRACTICE. Regulation of Conduct Balances Free Exercise of Religion Against Government Purpose. Law of General Applicability and Secular. Rational Basis Test, and Must Have Rational Relationship to a Legitimate Government Interest.


FREEDOM OF ASSOCIATION


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FREEDOM OF ASSOCIATION

FREEDOM OF ASSOCIATION. FIRST AMENDMENT. PROTECTS. Protects Against Governmental Punishment as Related to Accepting Government Benefits, Public Employment, Membership in Various Organizations, and Group Disclosure. STRICT SCRUTINY. Must Have Compelling Government Interest, Met Through Necessary Means, with No Less Restrictive Alternatives. EXCEPTIONS. Active Membership in Subversive Group, Person Knows of the Illegal Activities, and Person has a Specific Intent to Further the Unlawful Aims of the Group.

ANTI-DISCRIMINATION. Anti-Discrimination Regulations May Be Upheld as Long as They Do Not Interfere with Intimate Association or Expressive Activity. DISCLOSURE OF GROUP MEMBERSHIP. Government May Not Inquire Unless Group Membership Could be Made Illegal, Otherwise Chilling Effect. LOYALTY OATHS. Not Allowed as Condition of Public Employment, but May be Allowed to Support Constitution and Oppose Overthrow of Government.


FREEDOM OF THE PRESS







FREEDOM OF THE PRESS

FREEDOM OF THE PRESS. FIRST AMENDMENT. Press is Not a Mouthpiece of the Government. Cannot Be Compelled to Publish without Free Editorial Control. STRICT SCRUTINY REVIEW. Compelling Government Interest, Necessary Means to Ends Fit, and No Less Restrictive Alternatives. RIGHT TO ATTEND TRIALS. For Press and the Public. NEWSPERSON'S PRIVILEGE. May Publish Lawfully Obtained Identity Information. No Privilege to Refuse to Disclose Confidential Information to a Grand Jury, but States May Enact Shield Laws.BROADCASTING. May be Regulated More Closely than Written Press, because of Limited Number of Broadcasting Frequencies.


FREEDOM OF THE PRESS, con’t







FREEDOM OF THE PRESS, con’t

LIMITS ON ACCESS TO INFORMATION AND TO COURT. 1st and 6th Amendment Rights to a Public Trial. Ensures Access to the Press and the Public. FAIR CRIMINAL TRIAL. Defendant's Right to a Fair Trial Must Under the 6th Amendment Must Not be Unduly Prejudiced. RESTRICTED INFORMATION. Information May be Restricted in Order to Protect the Privacy Rights of an Individual, or to Protect the 6th Amendment Trial Rights of a Defendant. PRIOR RESTRAINTS. REGULATION BEFORE PUBLICATION. Chilling Effect. STRICT SCRUTINY. Compelling Government Interest, Necessary Means to Ends Fit, and No Less Restrictive Alternatives. COURT ORDERS / COLLATERAL BAR RULE. GAG ORDERS. Balancing of First Amendment Free Speech Rights Against Sixth Amendment Rights of Criminal Defendant to a Fair Trial. Must be a Clear and Present Danger to Fair Trial Rights, No Other Reasonable Alternatives, Injunction Must Protect Defendant's Rights.


FIFTH AMENDMENT TAKINGS CLAUSE







FIFTH AMENDMENT TAKINGS CLAUSE

TAKINGS CLAUSE UNDER THE FIFTH AMENDMENT.TAKING OF PRIVATE PROPERTY. Compensable Taking Includes: Confiscation, Physical Occupation, Regulation Denying Reasonable Economic Use of Land.For Regulations a Court Considers: Economic Impact of the Regulation on Plaintiff, Interference with Distinct Investment Backed Investments, and Character of Government Action.Improved Land: Benefit to Landowner Must be Proportionate to Burden Imposed, Otherwise a Compensable Taking.FOR PUBLIC PURPOSE.JUST COMPENSATION. Fair Market Value of Loss.


FOURTEENTH AMENDMENT

RIGHTS






FOURTEENTH AMENDMENT RIGHTS

14th AMENDMENT RIGHTS. ENABLING CLAUSE, SECTION 5. Congress May Only Provide Additional Remedies, But May Not Expand Rights.PROCEDURAL DUE PROCESS.SUBSTANTIVE DUE PROCESS.EQUAL PROTECTION.PRIVILEGES OR IMMUNITIES.

PROCEDURAL DUE PROCESS






PROCEDURAL DUE PROCESSPROCEDURAL DUE PROCESS.14TH AMENDMENT.PROTECTIONS AGAINST ARBITRARY AND CAPRICIOUS GOVERNMENT ACTION TO DEPRIVE A PERSON OF THEIR LIFE, LIBERTY OR PROPERTY.GOVERNMENT MUST PROVIDE FAIR PROCESS AT MEANINGFUL TIME AND IN A MEANINGFUL WAY, BEFORE DEPRIVATION OF LIFE, LIBERTY OR PROPERTY. PROPERTY INTERESTS. CLEAR ENTITLEMENT.REASONABLE EXPECTATION OF CONTINUATION OF BENEFIT. Examples Include: Welfare Benefits, Driver's License, Public Education, Public Employment where Employee Can Only be Fired with Cause. LIBERTY INTERESTS. Right to Gainful Employment, Right to Contract, Right to Refuse Unwanted Medical Care, Right to Care for Children, Right Against Commitment to Mental Institution.

DUE PROCESS PROTECTIONS.DETERMINED BY: IMPORTANCE OF INTEREST TO INDIVIDUAL. RISK OF ERRONEOUS DECISION. ADMINISTRATIVE BURDEN.DUE PROCESS PROTECTIONS INCLUDE: Attorney, Hearing, Witnesses, Evidence, etc. PRIOR NOTICE AND HEARING. REQUIRED FOR: Termination of Welfare Benefits, Termination of Parental Custody Rights, Pre-Judgment Attachment, Seizure of Real Property, Institutionalization of an Adult.

SUBSTANTIVE DUE PROCESS






SUBSTANTIVE DUE PROCESS

SUBSTANTIVE DUE PROCESS.14TH AMENDMENT.SUBSTANTIVE JUSTIFICATION.FUNDAMENTAL RIGHTS. Matters Relating to Marriage, Family, Procreation, Bodily Integrity, Living Together as a Family, Use of Contraception, Custody of Children, Upbringing of Children, Limited Right to Refuse Medical Treatment.STRICT SCRUTINY. COMPELLING GOVERNMENT INTEREST. NECESSARY MEANS TO ENDS FIT. NO LESS RESTRICTIVE ALTERNATIVES. ABORTION. UNDUE BURDEN TEST. For Regulations Prior to Viability.CONSENT / NOTIFICATION. May Not Require Spousal Notification, But May Require Parental Consent.

EQUAL PROTECTION






EQUAL PROTECTION

EQUAL PROTECTION. 14TH AMENDMENT.LIKE CATEGORIES.MADE APPLICABLE TO FEDERAL GOVERNMENT VIA THE DUE PROCESS CLAUSE OF 5TH AMENDMENT. PROOF OF DISCRIMINATORY CLASSIFICATION.PRIMA FACIE DISCRIMINATION. FACIALLY NEUTRAL DISCRIMINATION. Discriminatory Impact, Discriminatory Intent.

EQUAL PROTECTION, con’t






EQUAL PROTECTION, con’t

STRICT SCRUTINY REVIEW FOR SUSPECT CLASSIFICATIONS AND FUNDAMENTAL RIGHTS.NECESSARY MEANS TO ENDS FIT.COMPELLING GOVERNMENT INTEREST.NO LESS RESTRICTIVE ALTERNATIVES.FUNDAMENTAL RIGHTS. Represent Essence of Scheme of Ordered Liberty. Includes: Right to Contract, Right to Own Property, Freedom of Speech, Freedom of Religious Practice, Freedom of Assembly, The Right to Counsel, Double Jeopardy, Jury Trial, Against Self-Incrimination, Against Search or Seizure, Jury Trial, Freedom from Cruel and Unusual Punishment, Personal Autonomy and Privacy, Right to Vote, Right to Travel Interstate.SUSPECT CLASSES. Race, National Origin, State Alienage. Saddled with Unique Disabilities on the Basis of Stereotyped Characteristics Not Indicative of Abilities, and History of Purposeful and Unequal Treatment. For Race and Ethnicity, Must Show Purposeful Discrimination.AFFIRMATIVE ACTION. Benign Discrimination. May Consider Race as One Factor. Strict Scrutiny.

INTERMEDIATE LEVEL / HEIGHTENED SCRUTINY.SUBSTANTIAL MEANS TO ENDS FIT.IMPORTANT GOVERNMENT INTEREST.GENDER. Role Stereotypes Not Allowed. ILLEGITIMACY. RATIONAL BASIS REVIEW.RATIONAL RELATIONSHIP.LEGITIMATE GOVERNMENT PURPOSE.Government Participation Exception for Alienage, Wealth, Economic Regulations, Age, Disabilities. Sexual Orientation Given Rational Review with Bite.

PRIVILEGES OR IMMUNITIES

CLAUSE






PRIVILEGES OR IMMUNITIES CLAUSE

14th AMENDMENT PRIVILEGES OR IMMUNITIES CLAUSE.APPLIES TO CITIZENS OF UNITED STATES.DOES NOT APPLY TO ALIENS OR CORPORATIONS.PROTECTS RIGHTS AS CITIZEN OF THE UNITED STATES.RIGHTS INCLUDE: Interstate Travel, Voting in Federal Elections, Entry Onto Public Land, Right to Petition Congress for Redress of Grievances, Inform Federal Government of Violation of Its Laws, Protection from Violence when in Federal Custody, Access to Seaports of United States, Transact Business with United States Government, Access to Federal Court.

THIRTEENTH AMENDMENT






THIRTEENTH AMENDMENT

THIRTEENTH AMENDMENT.NO INVOLUNTARY SERVITUDE. Slavery, Peonage, Compulsory Labor for Debts.APPLIES TO GOVERNMENT AND PRIVATE ACTORS.

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