BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

NEW YORK COURSE CONSTITUTIONAL LAW
Professor Erwin Chemerinsky OVERVIEW OF ORGANIZATION I. II. III. IV. V. THE FEDERAL JUDICIAL POWER THE FEDERAL LEGISLATIVE POWER THE FEDERAL EXECUTIVE POWER FEDERALISM
Limits on state and local government power

THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES

VI.

DUE PROCESS
Government cannot deprive of any life, liberty or property without due process of law

VII. EQUAL PROTECTION VIII. FIRST AMENDMENT
(33 questions on MBE. The mini review outline is good. Among common law questions on MBE, 15% federal judicial power. 20% federal legislator and executive powers. 20% federalism. 25% V, VI, VII. 20% first amendment.)

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BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

I.

THE FEDERAL JUDICIAL POWER
A. THE REQUIREMENT FOR CASES AND CONTROVERSIES 1. Standing. Standing is the question of whether the plaintiff is the proper party to bring a matter to the court for adjudication. (**) Justices ability doctrines a. Injury. Plaintiff has to allege and prove that he has been or imminently will be injured. i. Plaintiffs only may assert injuries that they personally have suffered. (a personally suffered injury) ii. Plaintiffs seeking injunctive or declaratory relief must show a likelihood of future harm. Tip: If MBE asks "which of the following p has the best standing?" look initially at the choices whether p has personally suffered personal injury. if there is more than one choices, then the correct answer will be the one who has suffered economic loss. 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. Supreme Court states that in order for Ps to have standing, Ps must show that the ruling would remedy the injury; must show the D is the cause of the harm. No third party standing. A plaintiff cannot assert claims of others, of third parties, who are not before the court. Exception**: third party standing is allowed if there is a close relationship between the plaintiff and the injured third party.

c.

i.

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close relationship: p can be trusted to adequately represent the interest of the third party. e.g. doctor/patient. Exception: 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 defendants have third party standing to raise the rights of perspective jurors to be free from discrimination in the jury selection. (usually jurors have no incentive to sue) Exception: associational standing (least tested): an organization may sue for its members, if ---the members would have standing to sue; the interests are germane to the organization’s purpose; 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. TIP: USUALLY THE MBE QUESTION WOULD SAY THE P IS SUING AS A "CITIZEN" OR "TAXPAYER". EASY TO SPOT THE ISSUE. Exception: taxpayers have standing to challenge government expenditures (ONLY MONEY) as violating the Establishment Clause. NOTE: VERY NARROW PRINCIPLE. TAXPAYER LACKS

ii.

iii.

STANDING TO CHALLENGE FEDERAL GOVERNMENT'S GRANT OF PROPERTY TO RELIGIOUS INSTITUTIONS. 2. Ripeness. Ripeness is the question of whether a federal court may grant 3

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW

preenforcement review of a statute or regulation. TIP: THE RIPENESS QUESTION ALWAYS ARISES WHEN THERE IS A REQUEST FOR DECLARATORY JUDGMENT. THE FEDERAL COURT WILL GRANT JUDICIAL REVIEW IF THE FOLLOWING TWO CRITERIA ARE MET: a. The hardship that will be suffered without preenforcement review. NOTE: THE GREATER THE HARDSHIP IS, THE GREATER POSSIBILITY THAT THE COURT WILL GRANT JUDICIAL REVIEW. b. 3. The fitness of the issues and the record for judicial review.

Mootness. If events after the filing of a lawsuit end the plaintiff's injury, the case must be dismissed as moot. (A PLAINTIFF MUST PRESENT A LIVE CONTROVERSY ON AN ON-GOING BASIS.) a. Exception**: wrong capable of repetition but evading review. E.G. A PREGNANT WOMAN CHALLENGING THE STATUTE OF ABORTION. (THE P CAN BE PREGNANT AGAIN AND SEEK ABORTION IN THE FUTURE.) b. Exception: voluntary cessation. IF THE P VOLUNTARILY PAUSES THE CASE, SO LONG AS THE P IS LEGALLY FREE TO RESUME THE CASE AT ANY TIME, THE CASE WILL NOT BE DISMISSED FOR MOOTNESS. c. Exception: class action suits. IF THE NAMED P'S CLAIM IS MOOT, A CLASS ACTION WILL NOT BE DISMISSED SO LONG AS ONE MEMBER OF THE CLASS HAS AN ON-GOING INJURY. 4

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4.

The political question doctrine. The political question doctrine refers to allegations of constitutional violations that the federal courts will not adjudicate. THE FOLLOWING CASES ARE NON-JUDICIABLE POLITICAL

QUESTIONS: a. b. The “republican form of government clause.” (ARTICLE IV) Challenges to the President's conduct of foreign policy. Challenges to the impeachment and removal process.

c.

B.

SUPREME COURT REVIEW 1. Virtually all cases come to the Supreme Court by writ of certiorari. THE SUPREME COURT HAS COMPLETE DISCRETION WHETHER TO HEAR THE CASE BY WRIT OF CERTIORARI. a. All cases from state courts come to the Supreme Court by writ of certiorari. 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. NOTE: IT SKIPS FROM THE COURT OF APPEALS AND GOES DIRECTLY TO SUPREME COURT FOR REVIEW. THE SUPREME COURT IS REQUIRED TO HEAR THE APPEAL. d. The Supreme Court has original and exclusive jurisdiction for suits 5

b.

STATE MUST BE EXPLICIT. b. if the Supreme Court’s reversal of the federal law ground will not change the result in the case. (NOTE: THE WAIVER BY THE States may be sued ONLY under the following a. C. or of a 3-judge federal district court. there must NOT be an independent and adequate state law ground of decision. the Supreme Court may hear cases only after there has been a final judgment of the highest state court. States may be sued pursuant to federal laws adopted under §5 of the 14th Amendment. Waiver is permitted. Sovereign immunity bars suits against states in state courts or federal agencies. one state law and one federal law.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW between state governments. The 11th Amendment bars suits against states in federal court. For the Supreme Court to review a state court decision. 3.) ii. i. of a United States Court of Appeals. Federal courts (and state governments) may NOT hear suits against state governments. If a state court decision rests on two grounds. Exceptions: circumstances: i. Generally. LOWER FEDERAL COURT REVIEW 1. ii. 2. 6 Congress cannot authorize suits . the Supreme Court cannot hear it. ** The principle of sovereign immunity.

OR FOR THE DISTRICT OF COLUMBIA. CONGRESS MAY CHOOSE ANY MEANS NOT PROHIBITED BY THE CONSTITUTION TO CARRY OUT ITS AUTHORITY. 2. (RARELY TESTED) II. TIP: THERE IS NO GENERAL FEDERAL POLICE POWER. The taxing/spending power and the commerce power ** 7 . The federal government may sue state governments. There must be express or implied Congressional power. FOR FEDERAL LANDS AND TERRITORY. The necessary and proper clause. Suits against state officers are allowed. Abstention. 3. CONGRESS' AUTHORITY TO ACT 1. iii. c. THE FEDERAL LEGISLATIVE POWER A. STATE LOCAL GOVERNMENTS HAVE THE POLICE POWER. Federal courts may NOT enjoin pending state court proceedings. state officers may NOT be sued if the state treasury will be paying retroactive damages 2. FOR INDIAN RESERVATION.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW against states under other constitutional provisions. EXCEPTION: CONGRESS HAS POLICE POWER TO LEGISLATE FOR MILITARY. state officers may be sued for injunctive relief state officers may be sued for money damages to be paid out of their own pockets HOWEVER.

ETC. PLANES. E. b. a. **Congress cannot compel state regulatory or legislative action.G. The Commerce Power i) Congress may regulate the channels of interstate commerce. ETC. Congress may tax and spend for the general welfare TIP: IF THERE IS A QUESTION ABOUT CONGRESS' AUTHORITY TO ACT. in the area of noneconomic activity.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW a. Note: Congress can induce state government action by putting strings on grants. b. so long as the conditions are expressly stated and relate to the purpose of the spending program. Congress may prohibit harmful commercial activity by state governments.) of interstate commerce and persons or things in interstate commerce. a substantial effect cannot be based on cumulative impact. 8 .) ii) Congress may regulate the instrumentalities (TRUCKS. The 10th Amendment as a limit on Congressional powers. (THE PLACES WHERE COMMERCE OCCURS. (NOTE: CUMULATIVE IMPACT CAN BE A BASE FOR FINDING A SUBSTANTIAL EFFECT BY ECONOMIC ACTIVITY.) 4. iii) Congress may regulate activities that have a substantial effect on interstate commerce. "GENERAL WELFARE" COULD BE A CORRECT ANSWER ONLY IN EITHER TAXING OR SPENDING OR WHEN CONGRESS HAS THE POLICE POWER. THE INTERNET. RAILROADS. HOWEVER. THE HIGHWAYS. INTERNET.

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. 3. No limit exists on Congress’ ability to delegate legislative power to executive agencies or even to the judiciary. FOREIGN POLICY 9 . NO MATTER HOW BROAD. Legislative vetos and line . THE FEDERAL EXECUTIVE POWER A. Congress’ power under §5 of the 14th Amendment. HAS BEEN UPHELD SINCE 1937. A LINE-ITEM VETO: WHERE THE PRESIDENT ATTEMPTS TO VETO PART OF THE BILL AND SIGN THE REST OF THE BILL. Congress may NOT create new rights or expand the scope of rights under §5 of the 14th Amendment. Congress may NOT delegate executive power to itself or its officers.) The President must sign or veto the bill in its entirety.) 2. TIP: CONGRESS CAN GIVE AWAY ITS POWER BUT CANNOT TAKE OTHER'S POWER TO ITSELF. 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.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 5.item vetos are unconstitutional For Congress to act. (NOTE: EVERY DELEGATION. DELEGATION OF POWERS 1. LEGISLATIVE VETO: CONGRESS ATTEMPTS TO OVERTURN AN EXECUTIVE ACTION WITHOUT BICAMERALISM OR PRESENTMENT. III. B.

but never over conflicting federal laws or the Constitution. Treaties prevail over conflicting state laws. NOTE: EXECUTIVE AGREEMENTS DO NOT REQUIRE SENATE APPROVAL IN ORDER TO BE EFFECTIVE. [See chart on the following page] 10 . 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. b.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 1. 2. b. it is invalid. c. Treaties. c. the one adopted last in time controls. Definition. Executive agreements prevail over conflicting state laws. a. Executive agreements can be used for any purpose. If a treaty conflicts with the United States Constitution. 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. Executive agreements a. ** If a treaty conflicts with a federal statute.

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 1 TREATIES AND EXECUTIVE AGREEMENTS CONFLICTS IS SENATE APPROVAL REQUIRED? CONFLICTS WITH STATE LAW WITH FEDERAL STATUTE WHICHEVER TREATIES YES TREATY CONTROLS EXECUTIVE NO AGREEMENT CONTROLS WAS ADOPTED LAST IN TIME CONTROLS EXECUTIVE AGREEMENTS FEDERAL STATUTE CONTROLS CONSTITUTION CONTROLS CONSTITUTION CONTROLS CONFLICTS WITH CONSTITUTION 11 .

Unless removal is limited by statute. b. CONGRESS CAN VEST THE APPOINTMENT POWER OF INDEPENDENT COUNCIL IN THE LOWER FEDERAL COURTS. The President appoints ambassadors.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 3.) ii. The appointment power i. B. it must be an office where independence 12 from the President is desirable (E. **Congress may NOT give itself or its officers the appointment power. . The appointment and removal power a. SECOND BEST: BROAD POWERS AS COMMANDER-IN-CHIEF TO USE AMERICAN TROOPS IN FOREIGN COUNTRIES.G. For Congress to limit removal. federal judges and officers of the United States. DOMESTIC AFFAIRS 1. BEST ANSWER: IT'S A POLITICAL QUESTION. i. (E. TIP: TO JUSTIFY NON-INTERFERENCE BY THE JUDICIAL POWER OF THE PRESIDENT'S USE OF TROOPS IN FOREIGN COUNTRY. ** The President has broad powers as Commander-in-Chief to use American troops in foreign countries. Congress may vest the appointment of inferior officers in the President.G. The removal power. the President may fire any executive branch office. the heads of departments or the lower federal courts.) iii. (NOTE: THE SENATE MUST APPROVE THE NOMINEE.

) 5. it can limit removal to where there is good cause. The President has the power to pardon those accused or convicted of federal crimes.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW INDEPENDENT COUNCIL. The President. The President has absolute immunity to civil suits for money damages for any actions while in office. SPECIAL PROSECUTOR ARE OK. V. the Vice-President. Impeachment and removal. (E. SUCH PERSON CAN NEVER BE PARDONED. conviction in the Senate requires a 2/3 vote. Impeachment by the House of Representatives requires a majority vote. Congress cannot prohibit removal. The President has executive privilege for presidential papers and conversations. NIXON) (THE NEED FOR EVIDENCE IN A CRIMINAL TRIAL OUTWEIGHS THE PRIVILEGE. EXCEPTION: IF A PERSON IS IMPEACHED BY THE HOUSE OF REPRESENTATIVES. federal judges and officers of the United States can be impeached and removed from the office for treason. TIPS: (NOTE: PRESIDENT CAN BE SUED FOR ACTIONS OCCURRED PRIOR TO THE PRESIDENT TAKING THE 13 .) 4. 2. bribery or for high crimes and misdemeanors a. BUT NOT CABINET) and ii. but such privilege MUST yield to other important government interests. 3. OFFICE.G. Impeachment does NOT remove a person from office. b. US.

THE PRESIDENT MAY PARDON ONLY TO CRIMINAL LIABILITY. FEDERALISM A. federal law preempts state law.G.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 1. CIVIL CONTEMPT) IV. THEN STATE LAW IS COMPLETELY PREEMPTED. b. NEVER TO STATE CRIMES. and laws and treaties made pursuant to it. THE PRESIDENT MAY PARDON ONLY TO FEDERAL CRIMES. The Supremacy Clause of Article III provides that the Constitution. (** 4 TO 6 QUESTIONS ON MBE) 1. TIP: STATES MAY SET ENVIRONMENTAL LAWS STRICTER THAN FEDERAL STANDARDS UNLESS CONGRESS CLEARLY PROHIBITS THIS. 2. NEVER TO CIVIL LIABILITY. If Congress evidences a clear intent to preempt state law. IMMIGRATION LAW. If state law impedes the achievement of a federal objective. CRIMINAL CONTEMPT V. federal law preempts state law. (E. Express preemption IF A FEDERAL STATUTE EXPRESSLY SAYS THAT FEDERAL LAW WHOLLY OCCUPIES A FIELD. Implied preemption a. PREEMPTION. are the supreme law of the land.G. (E. federal law preempts state law. 2. ANY ATTEMPT 14 . If federal law and state law are mutually exclusive. c.

States may NOT tax or regulate federal government activity. TIP: IT IS AN ANTIDISCRIMINATION PROVISION THAT APPLIES ONLY WHERE THE STATE DISCRIMINATES CITIZENS OF OTHER STATES. Definitions a. The privileges and immunities clause of Article IV: NO STATE MAY DENY CITIZENS OF OTHER STATES OF THE PRIVILEGES AND IMMUNITIES IT OFFERS TO ITS OWN CITIZENS. 15 . b.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW BY STATE GOVERNMENT TO CONTROL IMMIGRATION IS CONTROLLED BY FEDERAL LAW. THE DORMANT COMMERCE CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV (** 2 OR 3 QUESTIONS) 1. (ALSO CALLED "INTERGOVERNMENTAL IMMUNITY") IT IS UNCONSTITUTIONAL TO PAY A STATE TAX OUT OF THE FEDERAL TREASURY. TIP: "THE NEGATIVE IMPLICATIONS OF THE COMMERCE CLAUSE" MEANS THE ABOVE DEFINED DORMANT COMMERCE CLAUSE.G. FEDERALLY OWNED STORE) STATES CANNOT REGULATE THE FEDERAL GOVERNMENT IF IT PUTS SIGNIFICANT BURDEN ON FEDERAL ACTIVITY. (E.) 3. The dormant commerce clause: THE PRINCIPLE THAT STATE LOCAL LAWS ARE UNCONSTITUTIONAL IF THEY PUT AN UNDUE BURDEN ON INTERSTATE COMMERCE. B.

NECESSARY: NO LESS DISCRIMINATORY ALTERNATIVE IS AVAILABLE TO ACHIEVE THE PURPOSE.) i. b. it violates the dormant commerce clause unless it is necessary to achieve an important government purpose. TIP: "THE PRIVILEGES OR IMMUNITIES CLAUSE OF THE 14TH AMENDMENT" IS ALWAYS A WRONG ANSWER UNLESS THE QUESTION INVOLVES THE RIGHT TO TRAVEL. 2. it violates the dormant commerce clause if its burdens exceed its benefits.G. Exception: Congressional approval ii. Analysis if the law does not discriminate. Exception: The market participant exception. DOES THE STATE LAW TREAT IN-STATERS AND OUT-OF-STATERS IN THE SAME WAY? 3.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW c. 4. Analysis if the law discriminates against out-of-staters a.E. a. If the law burdens interstate commerce. TO PRESERVE THE NATURE RESOURCES IN THE STATE. A state or local government may prefer its own citizens in receiving 16 . (NOTE: SUFFICIENT IMPORTANCE: E. The privileges and immunities clause of Article IV does not apply. The privileges or immunities clause of the 14 th Amendment: PROTECT THE CITIZENS OF THE STATE FROM CERTAIN ACTIONS OF THEIR OWN STATE. If the law burdens interstate commerce. Does the state law discriminate against out-of-staters? I.

PUBLIC COLLEGES MAY CHARGE LESS TUITIONS FROM IN-STATERS. NOT INCLUDING MERE HOBBIES). 2. THE DISCRIMINATION MUST BE WITH REGARD TO CIVIL LIBERTIES OR ECONOMIC ACTIVITIES (I. If the law discriminates against out-of-staters with regard to their civil liberties or their ability to earn their livelihood.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW benefits from government programs or in dealing with government owned businesses. it violates the privileges and immunities clause of Article IV unless it is necessary to achieve an important government purpose.) b. 4. THE STATE GOVERNMENT 17 . YOU USE ONLY THE DORMAN COMMERCE CLAUSE IN YOUR ANSWER. TO INVOKE PRIVILEGES AND IMMUNITIES CLAUSE UNDER ARTICLE IV: 1. TIP: IF THE P IS A CORPORATION. 3. CORPORATIONS AND ALIENS CANNOT INVOKE THIS PROVISION.E. A DISCRIMINATION IS ALLOWED ONLY WHEN IT IS NECESSARY TO ACHIEVE AN IMPORTANT GOVERNMENT PURPOSE. (E.G. CONSIDER BOTH THE DORMAN COMMERCE CLAUSE AND THE PRIVILEGES AND IMMUNITIES CLAUSE UNDER ARTICLE IV. IF THE P IS AN INDIVIDUAL. THE ABILITY OF A PERSON TO EARN A LIVING. THERE MUST BE DISCRIMINATION AGAINST OUT-OFSTATERS.

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW MUST PROVE THAT NO LESS DISCRIMINATIVE ALTERNATIVE IS AVAILABLE. [See chart on the following page] 18 .

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 19 .

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW • CHART 3 Comparison of the Dormant Commerce Clause and the Privileges and Immunities Clause of Article IV Dormant Commerce Clause • Does not require discrimination against outof-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 • • • • • • 20 .

The Constitution applies only to government action. 21 . so long as: 1.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW C. 3. STATE TAXATION OF INTERSTATE COMMERCE (RARELY TESTED) 1. AND APPLIES TO GOVERNMENT OFFICERS AT ALL LEVELS. The judgment was on the merits. FEDERAL OR STATE. 3. States may NOT use their tax systems to help in-state businesses. 2. The judgment is final. Congress. may apply constitutional norms to private conduct. State taxation of interstate businesses must be fairly apportioned. D. The 13th Amendment can be used to prohibit private race discrimination. Private conduct need NOT comply with the Constitution. V. FULL FAITH AND CREDIT. THE CONSTITUTION APPLIES TO GOVERNMENT AT ALL LEVELS. IS THERE GOVERNMENT ACTION? 1. Courts in one state must give full faith and credit to judgments of courts in another state. 2. 2. a. by statute. A state may only tax activities if there is a substantial nexus to the state. THE STRUCTURE OF THE CONSTITUTION’S PROTECTION OF INDIVIDUAL LIBERTIES A. The court that rendered the judgment had jurisdiction over the parties and the subject matter.

b. The commerce power can be used to apply constitutional norms to private conduct. The public function exception. The entanglement exception. Congress cannot use §5 of the 14th Amendment to regulate private behavior. encourages. DISCRIMINATION CAN VIOLATE FEDERAL LAWS ADOPTED BY CONGRESS UNDER THE 13TH AMENDMENT. RUNNING PRIVATE UTILITY IS NOT TRADITIONALLY. RUNNING A TOWN BY A PRIVATE COMPANY. EXCLUSIVELY DONE BY THE GOVERNMENT.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW TIP: DISCRIMINATION ITSELF. THUS NO EXCEPTION IS AVAILABLE. The Constitution applies if a private entity is performing a task traditionally. E. E. HOLDING PRIMARY ELECTION BY PRIVATE ENTITY.G. NEVER ONLY VIOLATES THE 13TH 13TH AMENDMENT SLAVERY VIOLATES AMENDMENT. HOWEVER. 22 situations where private conduct must comply with the a. 7 EXAMPLES: COURTS CANNOT ENFORCE RACIAL RESTRICTIVE COVENANTS. The Constitution applies if the government affirmatively authorizes. . exclusively done by the government.G. or facilitates unconstitutional activity. c. Exceptions: Constitution. b. VERY NARROW EXCEPTION. 3.

Except: a. 2. (STATE GOVERNMENT CAN ADOPT WHATEVER GUN-CONTROL ACT. NOTE: GOVERNMENT SUBSIDY IS INSUFFICIENT FOR FINDING A STATE ACTION. THERE IS NOT STATE ACTION WHEN A PRIVATE CLUB WITH A LIQUOR LICENSE IN THE STATE RACIALLY DISCRIMINATES. The 3rd Amendment right to not have soldiers quartered in a person's home. The Bill of Rights applies directly only to the federal government The Bill of Rights is applied to state and local governments through its incorporation into the due process clause of the 14th Amendment. THERE IS STATE ACTION WHEN A PRIVATE ENTITY REGULATES INTERSCHOOL SPORTS WITHIN A STATE. - - - - B.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW - THERE IS STATE ACTION WHEN THE GOVERNMENT LEASES PREMISES TO A RESTAURANT THAT RACIALLY DISCRIMINATES. The 2nd Amendment right to bear arms. THE APPLICATION OF THE BILL OF RIGHTS 1. c. (STATES DON'T HAVE TO USE GRAND JURY IF THEY DON'T WANT TO. THERE IS NOT STATE ACTION WHEN A PRIVATE SCHOOL THAT IS 99% FUNDED BY THE GOVERNMENT FIRED ITS TEACHER BECAUSE OF THE TEACHER'S SPEECH.) b. THERE IS STATE ACTION WHEN A STATE PROVIDES FREE BOOKS TO A PRIVATE SCHOOL THAT RACIALLY DISCRIMINATES. The 5th Amendment right to grand jury indictment in criminal cases.) 23 . THERE IS NOT STATE ACTION WHEN THE NCWA ORDERS TO FIRE A BASEBALL COACH OF STATE UNIVERSITY WITHOUT DUE PROCESS.

BUT NOT REQUIRED TO BE IN THE BEST WAY. Strict scrutiny 24 . LEVELS OF SCRUTINY (NOTE: TO DEFINE PRECISELY IN ESSAY QUESTION) 1. A NEARLY TAILORED WAY. Rational basis test A LAW WILL BE UPHELD IF IT IS RATIONALLY RELATED TO A LEGITIMATE GOVERNMENT PURPOSE. 2. THE COURT WILL LOOK AT ONLY THE GOVERNMENT'S ACTUAL OBJECTIVE. IT IS ENOUGH. 3. NO ACTUAL LEGITIMATE PURPOSE IS REQUIRED.E. The 7th Amendment right to jury trial in civil cases. I. THE BURDEN OF PROOF WILL NOT BE MET UNLESS THE CHALLENGER CAN SHOW EITHER THERE IS NO LEGITIMATE GOVERNMENT PURPOSE OR IT IS NOT RATIONALLY RELATED. GOVERNMENT HAS THE BURDEN TO PROVE. SO LONG AS THERE IS A CONCEIVABLE LEGITIMATE PURPOSE. The 8th Amendment right against excessive fines. THE MEANS MUST BE SUBSTANTIALLY RELATED IN A GOOD WAY. THE CHALLENGER HAS THE BURDEN OF PROOF. C.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW d. Intermediate scrutiny A LAW WILL BE UPHELD IF IT IS SUBSTANTIALLY RELATED TO AN IMPORTANT GOVERNMENT PURPOSE. e.

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 4 THE LEVELS OF SCRUTINY LEAST RESTRICTIVE ALTERNATIVE MEANS? RATIONAL BASIS TEST INTERMEDIATE SCRUTINY STRICT SCRUTINY RATIONALLY RELATED BURDEN OF PROOF? CHALLENGER ENDS? LEGITIMATE CONCEIVABLE PURPOSE IMPORTANT ACTUAL PURPOSE COMPELLING ANALYSIS? NO SUBSTANTIALLY RELATED UNCERTAIN. BUT PROBABLY NOT GOVERNMENT NECESSARY ACTUAL PURPOSE YES GOVERNMENT A LAW WILL BE UPHELD IF IT IS NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT PURPOSE. THE COURT WILL LOOK AT ONLY THE GOVERNMENT'S ACTUAL OBJECTIVE. THE MEANS MUST BE SHOWN TO BE NECESSARY TO OBTAIN THE RESULT. THE GOVERNMENT HAS THE BURDEN OF PROOF. THE MEANS MUST BE THE BEST WAY. THE COURT MUST CONCLUDE THAT IT IS THE LEAST RESTRICTIVE ALTERNATIVE. [See chart on the following page] 25 .

THE CONSTITUTION OR A STATUTE.E. I. A deprivation of liberty occurs if there is the loss of a significant freedom provided by the Constitution or a statute. (A PERSON SHOULD SHOW A TANGIBLE LOSS. A deprivation of property occurs if there is an entitlement and that entitlement is not fulfilled. or property? a. liberty. Has there been a deprivation of life. Definitions i. BEFORE AN ADULT CAN BE CIVILLY COMMITTED. -WHEN PARENTS ARE INSTITUTIONALIZING A CHILD. NOTE: IT'S THE WRITTEN LAW. THERE MUST BE NOTICE AND HEARING. PROCEDURAL DUE PROCESS 1. IMPORTANT EXAMPLES: -EXCEPT IN AN EMERGENCY. THAT CREATES LIBERTY.) -ii. 26 . PRISONERS RARELY HAVE LIBERTY INTERESTS. DUE PROCESS A. -HARM TO REPUTATION BY ITSELF IS NOT A LOSS OF LIBERTY. THERE ONLY NEED TO BE A SCREENING BY A NEUTRAL FACT FINDER.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW VI.

Government negligence is NOT sufficient for a deprivation of due process. the government is liable under due process only if its conduct “shocks the 27 . Generally. E. AN ENTITLEMENT EXISTS IF THERE IS A REASONABLE EXPECTATION TO CONTINUE TO RECEIVE THE BENEFIT. NOTE: ONLY IF THE GOVERNMENT LITERALLY CREATES THE DANGER. the government's failure to protect people from privately inflicted harms does not deny due process. HIGH SPEED CHASE. 2.G. there MUST be intentional government action or at least reckless action for liability to exist. b. A PERSON WORKS FOR THE GOVERNMENT AND THE GOVERNMENT PROMISES THAT THE JOB WILL BE HIS FOR THE NEXT YEAR. THERE IS ENTITLEMENT.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW TIP: RIGHTS/PRIVILEGES DISTINCTION USUALLY IS NOT THE RIGHT ANSWER. THE MAGIC WORD IS "ENTITLEMENT". A PERSON HAS A PROPERTY INTEREST IF THERE IS AN ENTITLEMENT. in emergency situations. IN THE MIDDLE OF THE YEAR. DOES THE GOVERNMENT HAVE THE DUTY TO PROTECT.” EMERGENCY SITUATION: E. c. SHOCKS THE CONSCIENCE: ACT WITH THE INTENT TO CAUSE HARM TO PEOPLE. Generally. THE PERSON IS FIRED. AND DUE PROCESS IS REQUIRED. What procedures are required? However.G. conscience.

ii. AGAINST iii) The government interest in administrative efficiency. Examples i. NO FORMAL EVIDENTIARY HEARING REQUIRED. WHEN A STUDENT IS TO BE DISCIPLINED BY THE PUBLIC SCHOOL.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW a. BEFORE PARENTS' RIGHT TO CUSTODY OF THE CHILD CAN BE PERMANENTLY TERMINATED. THERE MUST BE PRIOR NOTICE AND PRIOR HEARING. AND The ability of additional procedures to increase the accuracy of the fact-finding. iv. BEFORE WELFARE BENEFITS CAN BE TERMINATED. THERE MUST BE POST HEARING. b. The test: Balance Test i) ii) The importance of the interest to the individual.) vi. THERE MUST BE PRIOR NOTICE AND PRIOR HEARING. THERE MUST BE NOTICE OF CHARGES AND OPPORTUNITY TO EXPLAIN. (GROSSLY EXCESSIVE PUNITIVE DAMAGES VIOLATE DUE PROCESS. iii. WHEN SOCIAL SECURITY DISABILITY BENEFITS ARE TO BE TERMINATED. PUNITIVE DAMAGES AWARDS REQUIRE INSTRUCTIONS TO THE JURY IN JUDICIAL REVIEW TO SHOW REASONABLENESS. AN AMERICAN CITIZEN APPREHENDED IN A FOREIGN COUNTRY AND HELD AS AN ENEMY COMBATANT 28 . v.

E. I. GOVERNMENT MAY SEIZE IT EVEN IF THERE IS AN INNOCENT OWNER. PREJUDGMENT ATTACHMENT OR GOVERNMENT SEIZURE OF ASSETS MUST BE PRECEDED BY NOTICE AND HEARING. (WHEN PROPERTY IS USED IN ILLEGAL ACTIVITY. NOTICE.) [See chart on the following page] 29 . REPRESENTATION BY ATTORNEY AND MEANINGFUL HEARING. vii. viii.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW MUST BE AFFORDED DUE PROCESS. QUALIFICATION: DUE PROCESS DOES NOT REQUIRE AN "INNOCENT OWNER" DEFENSE TO GOVERNMENT SEIZURE. EXCEPT IN EXIGENT CIRCUMSTANCES.

b) Ability of additional procedures to increase the accuracy of the fact finding. and c) The government interest in administrative efficiency 30 . or property (an entitlement to a continued receipt of a benefit)? YES What procedures must government supply? NO Government need not due provide process.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW • CHART 5 PROCEDURAL DUE PROCESS Has the government deprived a person of life. liberty (a significant freedom secured by the Constitution or Statute). procedural BALANCE: a) Importance of interest to the individual.

Definition WHETHER THE GOVERNMENT HAS REASONABLE CAUSE TO TAKE AWAY A PERSON'S LIFE.) NOTE: 31 Government conditions on development of property must be justified by a benefit . The Constitution provides only minimal protection for economic liberties. SUBSTANTIVE DUE PROCESS 1.Government confiscation or physical occupation of property is ALWAYS a taking. (NOTE: A SEPARATE TEST IS APPLIED ONLY FOR THE TAKING CLAUSE. NOTE: NO MATTER HOW SMALL THE PROPERTY IS. LIBERTY OR PROPERTY. Is there a taking? a) possessory taking . Only a rational basis test is used for laws affecting economic rights. The government may take private property for public use if it provides just compensation. 2. THERE COULD BE A TAKING. a. b. b) regulatory taking – Government regulation is a taking if it leaves no reasonable economically viable use of the property. The takings clause.) i.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW B. (NOTE: IT IS NOT A TAKING IF THE REGULATION JUST DECREASES THE VALUE OF THE PROPERTY.

THE GAIN TO THE GOVERNMENT IS IRRELEVANT. Is it for public use? NOTE: IF IT IS NOT FOR PUBLIC USE. Is just compensation paid? NOTE: JUST COMPENSATION IS MEASURED IN TERMS OF THE LOSS OF THE OWNER FOR THE REASONABLE MARKET VALUE. otherwise it is a taking. NOTE: A property owner may bring a takings challenge to regulations that existed at the time the property was acquired. [See chart on the following page] 32 . THE SUPREME COURT HAS BROADLY DEFINED THE "PUBLIC USE": A TAKING IS FOR PUBLIC USE SO LONG A AS THE GOVERNMENT ACTS WITH REASONABLE BELIEF THAT THE USE WILL BENEFIT THE PUBLIC.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW that is roughly proportionate to the burden imposed. NOTE: Temporarily denying an owner use of property is NOT a taking so long as the government’s action is reasonable. iii. THE GOVERNMENT HAS TO GIVE THE PROPERTY BACK. ii. HOWEVER.

Government must pay economic market value of property in hands of owner (gain to the taker is irrelevant) Government must return the property NO 33 .BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW • CHART 6 THE TAKINGS CLAUSE Government may take private property for public use if it pays just compensation Is it a taking? Is there a government confiscation or physical occupation of property? viable use of the property? If YES to either question there is a taking If NO to both questions. there is no taking and NO government compensation is required Does the government’s regulation leave no reasonable economically Is it for public use? Does the government act out of a reasonable belief that its action will benefit the public? YES Just compensation must be paid.

Applies only to state or local interference with existing contracts. 3. NOTE: IT DOESN'T LIMIT THE STATE OR LOCAL GOVERNMENT'S ABILITY TO REGULATE FUTURE CONTRACTS. The ex post facto clause does NOT apply in civil cases. State or local interference with private contracts must meet intermediate scrutiny. The contracts clause. is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest? State or local interference with government contracts must meet strict scrutiny.) EX POST FACTO LAW IS A LAW CRIMINALLY PUNISHES THE CONDUCT THAT WAS LAWFUL WHEN WAS DONE OR INCREASES THE PUNISHMENT FOR THAT CONDUCT AFTER THE CONDUCT WAS COMMITTED. (ARTICLE I. No state shall impair the obligations of contracts. Retroactive civil liability only need meet a rational basis test. iii. iv. NOTE: THE CONTRACT CLAUSE NEVER APPLIES TO THE FEDERAL GOVERNMENT.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW c. IT IS DIFFERENT FROM TRADITIONAL INTERMEDIATE SCRUTINY. ii.) — Does the legislation substantially impair a party's rights under an existing contract? — If so. Privacy is a fundamental right protected under substantive due 34 . (A bill of attainder is a law that directs the punishment of a specific person or persons without a trial. (NOTE: HERE. SECTION 10) i.

The right to purchase and use contraceptives 35 . d. e. The right to marry THE GOVERNMENT MAY INTERFERE ONLY WHEN SATISFYING THE STRICT SCRUTINY.G. INDIVIDUALS MUST BE RELATED WITH ONE ANOTHER. The right to keep the family together NOTE: THE DEFINITION OF "FAMILY" IS BROADER THAN PARENTS AND CHILDREN.G.G. QUALIFICATION: A STATE MAY CREATE AN IRREBUTTABLE PRESUMPTION THAT A MARRIED WOMAN'S HUSBAND IS THE FATHER OF THE CHILD. IT IS UNCONSTITUTIONAL FOR THE COURT TO ORDER GRANDPARENT'S VISITATION TO THE CHILD OVER THE PARENTS' OBJECTION. E.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW process. IT INCLUDES EXTENDED FAMILY. The right to procreate The right to custody of one's children.) a. The right to control the upbringing of one's children E. RIGHT OF UPBRINGING THE CHILD INCLUDES THE RIGHT OF THE PARENTS TO SEND THEIR CHILDREN TO PAROCHIAL SCHOOL. f. E. IN ORDER TO BE CONSIDERED AS ONE FAMILY. b. ZONING ORDINANCE KEEPING GRANDPARENTS FROM LIVING WITH THEIR GRANDCHILDREN IS UNCONSTITUTIONAL. (STRICT SCRUTINY IS USED FOR PRIVACY ISSUES. c.

** The government has NO duty to subsidize abortions or provide abortions in public hospitals. Example: a requirement that abortions be performed by licensed physicians is not an undue burden. but MAY regulate abortions so long as they do not create an undue burden on the ability to obtain abortions. The right to privacy protects a right to engage in private consensual homosexual activity. ii. iv.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW g. 36 . Prior to viability. Example: the prohibition of “partial birth abortions” IS an impermissible undue burden --- -- After viability. iii. i. Parental notice and consent laws for unmarried minors. Spousal consent and notification laws are unconstitutional. states MAY prohibit abortions unless necessary to protect the woman's life or health. The right to abortion NOTE: STRICT SCRUTINY IS NOT USED IN THE RIGHT TO ABORTION. h. 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. Example: a requirement for a 24 hour waiting period for abortions is not an undue burden. states may NOT prohibit abortions.

assisted suicide. c) A state may prevent family members from terminating treatment for another. j. even life-saving medical treatment. 37 .BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW NOTE: THE SUPREME COURT DID NOT ARTICULATE THE LEVEL OF SCRUTINY IN THE DECIDING CASE IN THIS RESPECT. There is not a constitutional right to physician . a) Competent adults have the right to refuse medical treatment. b) A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended. The right to refuse medical treatment. i.

BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW • CHART 7 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 Equal protection § VIII) Freedom of association (covered under Equal protection § VIII) Free exercise of religion (if the law burdening religion is not a neutral law of general applicability) (covered under Equal protection § VIII) • • Rights Triggering “Undue Burden Test” Right to abortion • Not a Fundamental Right “Rational Basis Review” Right to practice a trade or profession Right to physician-assisted suicide Right to education • Level of Scrutiny “Unknown” Right to engage in private consensual homosexual activity Right to refuse medical treatment • • • • • 38 .

The equal protection clause of the 14th Amendment applies only to state and local governments. Equal protection is applied to the federal government through the due process clause of the 5th Amendment.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW VII. Strict scrutiny is used. BLACK CANNOT SERVE ON JURIES. 2. How is the existence of a racial classification proven? a. EQUAL PROTECTION A. 2. CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN 1. E. 2. 3. TIP: THE 14TH AMENDMENT NEVER APPLIES TO THE FEDERAL GOVERNMENT. What is the classification? What level of scrutiny should be applied? Does this law meet the level of scrutiny? CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION 1. BLACK AND WHITE CHILDREN CANNOT ATTEND THE SAME PUBLIC SCHOOL. b. If the law is facially neutral. AN APPROACH TO EQUAL PROTECTION QUESTIONS 1. The classification exists on the face of the law. 39 . B.G. proving a racial classification requires demonstrating both discriminatory impact and discriminatory intent. C.

d. Numerical set-asides require clear proof of past discrimination. Educational institutions may use race as one factor in admissions decisions to help minorities. Intermediate scrutiny is used. (NOTE: IT DOES NOT MATTER WHETHER IT IS USED BY PROSECUTOR OR THE DEFENDANT) 3. Seniority systems may not be disrupted for affirmative action. Strict scrutiny is applied. Example: discriminatory use of peremptory challenges based on gender denies equal protection. GENDER CLASSIFICATIONS 1. If the law is facially neutral.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW Example: discriminatory use of peremptory challenges based on race denies equal protection. D. NOTE: GENDER CLASSIFICATION IS ALLOWED ONLY WHEN THERE IS "AN EXCEEDINGLY PERSUASIVE JUSTIFICATION". 40 . NOTE: COLLEGES AND UNIVERSITIES CANNOT ADD POINTS TO APPLICANT'S ADMISSION SCORES SOLELY BASED ON THE RACE FACTOR. How should racial classifications benefiting minorities be treated? a. b. b. The classification exists on the face of the law. c. How is the existence of a gender classification proven? a. 2. proving a gender classification requires demonstrating both discriminatory impact and discriminatory intent.

Gender classifications benefiting women that are based on role stereotypes will NOT be allowed. E. THE PERSON HAS TO BE US CITIZEN. IF THE HUSBAND DIES. E. strict scrutiny is used. Generally. AS TO A WOMAN. IN CASE OF A DIVORCE. A WOMAN CAN BE AWARDED ALIMONY. ALIENAGE CLASSIFICATIONS ** 1. THE PERSON HAS TO BE US CITIZEN.G. THE HUSBAND CANNOT GET SURVIVORSHIP UNLESS HE CAN PROVE DEPENDENCE ON THE WIFE. Only a rational basis test is used for alienage classifications that concern self-government and the democratic process. IN ORDER TO RECEIVE WELFARE BENEFITS IN THE STATE. BOTTOM LINE: THE GOVERNMENT CAN USE ALIENAGE CLASSIFICATION CONCERNING VOTING. SERVING IN A JURY. UNCONSTITUTIONAL. UNCONSTITUTIONAL. UNCONSTITUTIONAL. E. E. BEING A TEACHER. CONSTITUTIONAL. b.G. Gender classifications that are designed to remedy past discrimination and differences in opportunity will be allowed. THE WIFE CAN ALWAYS GET SURVIVORSHIP. E. IN US NAVY. OR BEING A 41 . UNCONSTITUTIONAL. IF A MAN IS NOT PROMOTED IN 6 YEARS.G. How should gender classifications benefiting women be treated? (INTERMEDIATE SCRUTINY) a. BEING A POLICE OFFICER.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 3. BUT IF THE WIFE DIES. BUT A MAN CAN NEVER BE AWARDED ALIMONY.G. HE SHOULD LEAVE THE NAVY.G. 2. IN ORDER TO BE ADMITTED TO THE BAR. E. 10 YEARS.

NOTE: LAWS THAT DENY A BENEFIT TO SOME NON-MARITAL CHILDREN MAY BE HELD CONSTITUTIONAL.G. G. LAW PROVIDING THAT PATERNITY MUST BE ESTABLISHED BEFORE THE FATHER'S DEATH IN ORDER FOR THE NON-MARITAL CHILD TO PARTICIPATE IN THE DISTRIBUTION OF THE ESTATE IS CONSTITUTIONAL. Laws that deny a benefit to all non-marital children. 3. CHILDREN OF CITIZENS AND DOCUMENTED ALIENS DO NOT NEED TO PAY FOR THE EDUCATION. BUT CHILDREN OF UNDOCUMENTED ALIENS HAVE TO PAY FOR THE EDUCATION.G. RATIONAL BASIS REVIEW IS USED FOR ALL OTHER TYPES OF DISCRIMINATION UNDER THE CONSTITUTION 1. AN EQUAL PROTECTION CHALLENGE AGAINST MANDATORY RETIREMENT AGE. Age discrimination TIP: E. DISCRIMINATION AGAINST NON-MARITAL CHILDREN 1. but grant it to all marital children are unconstitutional. E.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW PROBATION OFFICER IF THE RATIONAL BASIS REVIEW IS SATISFIED.G. 2. Intermediate scrutiny is used. 4. UNCONSTITUTIONAL. It appears that intermediate scrutiny is used for discrimination against undocumented alien children. THE GOVERNMENT ALWAYS WINS. 42 . Only a rational basis test is used for Congressional discrimination against aliens. E. F.

Restrictions on foreign travel need meet only the rational basis test.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 2. A POLL TAX IS UNCONSTITUTIONAL.G. E. 3. Laws that prevent people from moving into a state must meet strict scrutiny. c. TIP: FOR A VOTING. DURATIONAL RESIDENCY REQUIREMENT: A PERSON MUST LIVE IN A JURISDICTION FOR A CERTAIN PERIOD OF TIME IN ORDER TO RECEIVE BENEFIT OF THE STATE. TIP: THAT PROPERTY OWNERSHIP IS A CONDITION FOR VOTING OR HOLDING PUBLIC OFFICE IS ALMOST NEVER ALLOWED. H. The right to travel a. b. 2. The right to vote a. Laws that deny some citizens the right to vote must meet strict scrutiny. 4. ONLY EXCEPTION: WATER DISTRICT 43 . 5. 15 DAYS IS THE MAXIMUM ALLOWABLE DURATIONAL RESIDENCY REQUIREMENT. Durational residency requirements must meet strict scrutiny. Disability discrimination Wealth discrimination Economic regulations Sexual orientation discrimination FUNDAMENTAL RIGHTS PROTECTED UNDER EQUAL PROTECTION 1. TO PAY A FEE TO VOTE IS UNCONSTITUTIONAL.

ALL DISTRICTS MUST BE APPROXIMATELY EQUAL IN POPULATION. The use of race in drawing election district lines must meet strict scrutiny. IF THE GOVERNMENT USES RACE AS A PREDOMINANT FACTOR TO DRAW ELECTION DISTRICT LINES TO BENEFIT MINORITIES. b. 3. c.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW ELECTION. One-person .) TIP: VOTER APPROVAL DOES NOT JUSTIFY DEVIATION FROM ONE-PERSON-ONE-VOTE. Counting uncounted votes without standards in a presidential election violates equal protection. There is NO fundamental right to education [See chart on the following page] 44 . (FOR ANY ELECTED BODY. AN AT-LARGE ELECTION IS A VOTE WHERE ALL THE VOTERS VOTE FOR ALL THE OFFICE HOLDERS. At-large elections are constitutional unless there is proof of a discriminatory purpose. d. e.one-vote must be met for all state and local elections. THE STRICT SCRUTINY MUST BE MET.

WHAT IS THE CLASSIFICATION? Two ways to determine the existence of classifications: a) The classification is on the face of the law. ● Gender ● Illegitimacy ● Undocumented alien children Rational Basis Test Law must be rationally related to a legitimate government interest.WHAT IS THE LEVEL OF SCRUTINY? Strict Scrutiny Law must be necessary to achieve a compelling government purpose. ● 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? 45 .BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 8 EQUAL PROTECTION EQUAL PROTECTION ISSUES CAN BE DIVIDED INTO 3 QUESTIONS: 1 . 2 . there is both a discriminatory intent for the law and a discriminatory impact to the law.generally Travel (but not foreign travel) ● Voting Intermediate Scrutiny Law must be substantially related to an important government purpose. ● ● ● ● Race National origin Alienage . or b) If the law is facially neutral.

Two types of content based laws: i. Content-based v. BUT ANTIWAR MESSAGE IS NOT ALLOWED.G. THAT IS A VIEWPOINT RESTRICTION. 46 . Court orders suppressing speech must meet strict scrutiny. FREE SPEECH METHODOLOGY 1. Content-based restrictions on speech generally must meet strict scrutiny. E. viewpoint restrictions WHERE THE APPLICATION OF THE LAW DEPENDS ON THE IDEOLOGY OF THE MESSAGE. E.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW VIII. ii. subject matter restrictions WHERE THE APPLICATION OF LAW DEPENDS ON THE TOPIC OF THE SPEECH. Prior restraints DEFINITION: A JUDICIAL ORDER OR AN ADMINISTRATIVE SYSTEM THAT STOPS SPEECH BEFORE IT OCCURS. 2. PRO-WAR MESSAGE IS ALLOWED. THE FIRST AMENDMENT A.G. NO PARADES ARE ALLOWED IN A PARTICULAR CITY PARK. content-neutral restrictions a. a. Content-neutral laws burdening speech generally need only meet intermediate scrutiny. b.

4. QUALIFICATION: Procedurally proper court orders must be complied with until they are vacated or overturned. TIP: FIGHTING WORDS ARE NOT PROTECTED BY THE FIRST AMENDMENT. E.G.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW TIP: GAG-ORDERS-UNDER-PRESS TO PREVENT PREJUDICIAL PRE-TRIAL PUBLICITY ARE NEVER ALLOWED. A law is unconstitutionally overbroad if it regulates substantially more speech than the constitution allows to be regulated. b. b. Vagueness and overbreadth a. Fighting words laws are unconstitutionally vague and overbroad. LAWS PROHIBITING FIGHTING WORDS ARE ALWAYS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is allowed. Overbreadth. A LAW PROHIBITING ALL LIVE ENTERTAINMENT IS UNCONSTITUTIONALLY OVERBROAD. 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. HOWEVER. c. Licensing schemes must contain procedural safeguards such as prompt determination of requests for licenses and judicial review. Vagueness. ANY LAW THAT REGULATES SPEECH MUST BE CLEAR ABOUT WHAT IS PROHIBITED AND WHAT IS ALLOWED. 3. A person who violates a court order is barred from later challenging it. Symbolic speech. The government can regulate conduct that communicates if it has an important interest unrelated to suppression of 47 .

FLAG BURNING IS CONSTITUTIONALLY PROTECTED SPEECH. WHAT SPEECH IS UNPROTECTED OR LESS PROTECTED BY THE 1ST AMENDMENT? 1. 5. The material must appeal to the prurient interest. 3. Incitement of illegal activity. NUDE DANCING IS NOT PROTECTED SPEECH. B. Anonymous speech is protected THE 1ST AMENDMENT TO SPEAK INCLUDES THE RIGHT NOT TO SPEAK. 1. The government may punish speech if there is a substantial likelihood of imminent illegal activity and if the speech is directed to causing imminent illegality. 5. AND THE RIGHT NOT TO SPEAK INCLUDES THE RIGHT TO SPEAK WITHOUT DISCLOSING ONE'S IDENTITY. 2. 4. ** Obscenity and sexually-oriented speech. 2. a. CONTRIBUTION LIMITS IN AN ELECTION CAMPAIGN ARE CONSTITUTIONAL. 48 .BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW the message and if the impact on communication is no greater than necessary to achieve the government's purpose. EXPENDITURE LIMITS ARE UNCONSTITUTIONAL. DRAFT CARD BURNING IS NOT PROTECTED SPEECH. The test i. BURNING A CROSS IS A PROTECTED SPEECH UNLESS THERE IS PROOF OF INTENT TO THREATEN OR INTIMIDATE.

literary. d. e. Profane and indecent speech is generally protected by the 1st Amendment. but the government may punish private possession of child pornography. Taken as a whole. COMPUTER-SIMULATED CHILD OR CHILD-LIKE ADULT IS OK. 49 . i) Exception: over the broadcast media I. A LOCAL STANDARD. political or scientific value. A LOCAL STANDARD. THE LOCAL LAW PROHIBITING OBSCENITY SHOULD SHOW WHAT ACTIVITIES ARE PATENTLY OFFENSIVE. b. The government may not punish private possession of obscene materials. f. IT IS DETERMINED BY NATIONAL STANDARD. Child pornography may be completely banned. the material must lack serious redeeming artistic. OVER TELEVISION OR RADIO.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW A PRURIENT INTEREST IS "A SHAMEFUL OR MORBID INTEREST IN SEX". even if not obscene.E. c. ii. The government may seize the assets of businesses convicted of violating obscenity laws. NOTE: THE MATERIAL MUST HAVE USED CHILDREN IN ITS PRODUCTION. The government may use zoning ordinances to regulate the location of adult bookstores and movie theaters. The material must be patently offensive under the law prohibiting obscenity. ii.

Commercial speech a. The government may prohibit attorney. i. ii. Other commercial speech can be regulated if intermediate scrutiny is met. 4. in-person solicitation of clients for profit. ii) Exception: in schools 3. IF A LAWYER OFFERS FREE SERVICE. The government may not prohibit accountants from inperson solicitation of clients for profit. Government regulation of commercial speech must be narrowly tailored.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW NOTE: THE GOVERNMENT HAS LESS POWER TO REGULATE CABLE TELEVISION OR THE INTERNET. A LETTER SOLICITATION IS ALSO OK. True commercial speech that inherently risks deception can be prohibited. but it does not need to be the least restrictive alternative. iii. The government may prevent professionals from advertising or practicing under a trade name. IN-PERSON SOLICITATION IS OK. ADS FOR ILLEGAL ACTIVITY OR False and deceptive ads are NOT protected by the 1st Amendment. b. d. c. Defamation 50 .

” the plaintiff can recover presumed or punitive damages without showing actual malice. If the plaintiff is a “public figure'” the plaintiff can recover for defamation by proving falsity of the statement and actual malice. If the plaintiff is a “private figure” and the matter is not of “public concern. ACTUAL MALICE: THE DEFENDANT KNEW THE STATEMENT WAS FALSE OR ACTED WITH RECKLESS DISREGARD OF TRUTH. NOTE: THERE IS NO CLEAR DEFINITION OF "PUBLIC FIGURE". the plaintiff may recover presumed (A PRE-FIXED AMOUNT OF DAMAGES) or punitive damages only by showing actual malice. However.” that state may allow the plaintiff to recover for defamation by proving falsity and negligence by the defendant. b. 51 .) [See chart on the following page] d.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW the plaintiff can recover for defamation by proving falsity of the statement and actual malice. c. (NOTE: NEVER SAID WHO HAS THE BURDEN OF PROOF OR WHAT IS THE STANDARD FOR COMPENSATION. If the plaintiff is a “private figure” and the matter is of “public concern.

Presumed or Punitive Damages Require Actual Malice Compensatory for Actual Injury.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 9 DEFAMATION LIABILITY STANDARD Actual Malice Actual Malice BURDEN OF PROOF Plaintiff Must Prove Falsity Plaintiff Must Prove Falsity PLAINTIFF Public Official Public Figure DAMAGES Compensatory Presumed/Punitive Compensatory Presumed/Punitive Compensatory for Actual Injury. Presumed or Punitive Damages Do Not Require Actual Malice Private Figure. Matter of Private Concern Unclear Negligence Unclear Burden on Defendant to Prove Truth 52 . Matter of Public Concern Negligence and Actual Injury Plaintiff Must Prove Falsity Private Figure.

or if not. E. b. AS TO OTHERS. City officials cannot have discretion to set permit fees for public demonstrations. Privacy a. THE GOVERNMENT HAS THE RIGHT TO LIMIT. Regulations must be subject matter and viewpoint neutral. Government regulation of public forums need not use the least restrictive alternative. strict scrutiny must be met.G. b. c. or manner regulation that serves an important government purpose and leaves open adequate alternative places for communication. NOTE: THE PRESS AND PUBLIC DO HAVE THE 1ST AMENDMENT RIGHT TO ATTEND CRIMINAL PRETRIAL HEARINGS. d. c. 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. Regulations must be a time. C. 6.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 5. place. SIDEWALKS IN PARKS. The government may limit its own dissemination of information so as to protect privacy. 53 . WHAT PLACES ARE AVAILABLE FOR SPEECH? 1. Other government restrictions based on the content of speech must meet strict scrutiny. Public forums – government properties that the government is required to make available for speech. a. The government may not create liability for the truthful reporting of information that was lawfully obtained from the government.

G. 3. There is no 1st Amendment right of access to private property for speech purposes. E. ** SIDEWALKS ON POST OFFICE PROPERTY. [See chart on the following page] 54 . AREAS OUTSIDE PRISONS AND JAILS. NO 1ST AMENDMENT RIGHT TO SPEECH.) 4. 5. EVEN IF THE BASES ARE OPEN FOR PUBLIC VISIT. ALL THE NON-PUBLIC FORUMS LISTED BELOW. (NOTE: THE GOVERNMENT MAY PROHIBIT SOLICITATION FOR MONEY. AIRPORTS. 4. 2. THE RULE IS IDENTICAL TO PUBLIC FORUMS. but chooses to open to speech. 3. E. PRIVATELY OWNED SHOPPING CENTER. KEY EXAMPLES OF NON-PUBLIC FORUMS: 1. Non-public forums – government properties that the government constitutionally can and does close to speech. SCHOOL FACILITIES IN EVENINGS AND WEEKENDS. Limited public forums (DESIGNATED PUBLIC FORUMS) – government properties that the government could close to speech. The government may regulate speech in non-public forums so long as the regulation is reasonable and viewpoint neutral. ADVERTISING SPACE ON CITY BUSES. BUT THE GOVERNMENT CANNOT PROHIBIT DISTRIBUTION OF LITERATURE. MILITARY BASES.G.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW 2.

military bases. OR MANNER IMPORTANT NO YES REASONABLE LEGITIMATE NO 1st AMENDMENT RIGHT TO USE PRIVATE PROPERTY FOR SPEECH PURPOSES 55 ..e.g. parks) LIMITED PUBLIC FORUMS (i. airports) PRIVATE PROPERTY METHOD OF REGULATION ALLOWED? TIME.. non-public forums that the government opens to speech) NON-PUBLIC FORUMS (e. OR MANNER VIEWPOINT NEUTRAL? INTEREST REQUIRED? YES YES IMPORTANT YES YES TIME..BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 10 PLACES AVAILABLE FOR SPEECH SUBJECT MATTER NEUTRAL? PUBLIC FORUMS (e.g. PLACE. sidewalks. PLACE.

a. 2. must meet strict scrutiny.G. INTIMATE ASSOCIATION: E.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW D.G. where such disclosure would chill association. ii. The free exercise clause a. 2. FREEDOM OF RELIGION 1. ** The free exercise clause cannot be used to challenge a neutral law of general applicability.G. FREEDOM OF ASSOCIATION 1. KNOWLEDGE OF THE ILLEGAL PURPOSE OF THE GROUP. THE KLAN CAN EXCLUDE THE BLACK. E. b. iii. To punish membership in a group it must be proven that the person HAS: i. A SMALL DINNER PARTY. Laws that prohibit or punish group membership must meet strict scrutiny. 3. ACTIVE AFFILIATION OF THE GROUP. The establishment clause THE GOVERNMENT MAY MAKE NO LAW IN RELATION TO THE ESTABLISHMENT OF A RELIGION. Laws that prohibit a group (INCLUDING PRIVATE CLUB) from discriminating are constitutional unless they interfere with intimate association or expressive activity. EXPRESSIVE ACTIVITY: E. E. The government may not deny benefits to individuals who quit their jobs for religious reasons. AND INTENT TO REALIZE SUCH ILLEGAL PURPOSE. Laws that require disclosure of group membership. The test – "SEX" 56 . THE BOY SCOUT CAN DISCRIMINATE GAY.

STUDENTS' DELIVERY OF PRAYER BEFORE FOOTBALL GAMES IS UNCONSTITUTIONAL. iii.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW i. EVEN SILENT PRAYER IN PUBLIC SCHOOL IS UNCONSTITUTIONAL. b. so long as it is not used for religious instruction. E. ii. But religious student and community groups must have the same access to school facilities as non religious groups. KEY PRINCIPLE: THE GOVERNMENT MUST NOT SYMBOLICALLY ENDORSE RELIGION OR A PARTICULAR RELIGION. There must not be excessive entanglement with religion. 57 . The government cannot discriminate against religious speech or among religions unless strict scrutiny is met. d. The government may provide parents with vouchers that they may use in parochial schools. TIP: THE GOVERNMENT MAY PUT RELIGIOUS SYMBOLS ON GOVERNMENT PROPERTY IN DECEMBER HOLIDAY SEASON SO LONG AS THERE IS BOTH SYMBOLS OF OTHER RELIGIONS AND SECULAR SYMBOLS. There must be a secular purpose for the law. c.G. The effect must be neither to advance nor inhibit religion. Government sponsored religious activity in public schools is unconstitutional. The government may give assistance to parochial schools.

. § II) President or Federal Executive Branch The issue is either or both: 1) Has the President/Executive branch exceed the scope of executive powers? (See infra. VIII) and/or 2) Has Congress violated a limit on its power? (See infra. Lecture Handout... §§ IV... Lecture Handout. Lecture Handout. §§ VI.. VII. Lecture Handout. VIII) (CHEMERINSKY@LAW. Lecture Handout. §§ VI. Lecture Handout. VII.BAR/BRI Bar Review New York Course CONSTITUTIONAL LAW CONSTITUTIONAL LAW ● CHART 11 An Approach to Constitutional Law Questions Ask: Who is the actor in the question? Congress The issue is either or both: 1) Does Congress have the authority to act? (See infra. VII. § V) and. if so 2) Does it violate the constitution? (See infra. §§ VI.EDU) 58 . VII. VIII) Private (non-government actor) The issues are: 1) Is there state action? (See infra.DUKE. § III) Federal Court The issue is: Does the Federal Court have the authority to hear the case? (See infra.. VI.. § I) State/ Local Government The issue is: Has the State or local government violated a limit on its powers? (See infra. Lecture Handout. VIII) and/or 2) Has the President/Executive branch violated a limit on government power? (See infra. Lecture Handout.

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