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Constitutional Law Approximately 50% of the Constitutional Law questions for each MBE will be based on Individual Rights

such as due process, equal protections, and state action. "State Action" is when State is trying to have some rules that may interfere with the US Constitution.

Constitutional Law Overview

I. The Nature of Judicial Review (10% of the Constitutional Questions) A. Organization and relationship of state and Federal courts in a Federal system: 1. Federal: a) Congress has the power to create lower federal courts. b) Federal courts have jurisdiction only if the Constitution clearly grants such. c) Federal court has the final judge of its own powers. 2. State: a) The Constitution and laws of each state establish the State Courts. A court of last resort, often known as a Supreme Court, is usually the highest court. Some states also have an intermediate Court of Appeals. Below these appeals courts are the state trial courts. b) There is a very large group of powers belonging to the states, and the Federal courts are limited to only those powers explicitly listed in the Constitution. c) Only certain cases are eligible for review by the U.S. Supreme Court. B. Jurisdiction 1. Constitutional basis: The U.S. Constitution gives the Federal courts jurisdiction over all cases arising under the Constitution. 2. Congressional power to define and limit: Congress has power to define and limit jurisdiction of all courts, including the Supreme Court. Congress cannot take away a states 11th amendment immunity from Federal Lawsuits. 3. The 11th amendment and state sovereign immunity: The 11th amendment prohibits the Federal courts from hearing damage claims against a state without their consent. C. Judicial review in operation 1. The case or controversy requirement: There must be an actual dispute between parties before a court can hear the case. a) Prohibition on advisory opinions: The case or controversy requirement in Constitution prohibits Federal courts from issuing advisory opinions. b) Standing (1) Plaintiff must show he has been injured or will be injured (economic, aesthetic, environmental) and can only assert injuries that he has personally suffered. (a) If seeking injunctive or declaratory relief, must show likelihood of future harm. (b) Causation/redressibility: Relief sought must eliminate the harm alleged. Hint: The plaintiff who has personally suffered an injury has best standing. If there is more than one plaintiff suffering from personal injury, the one who has suffered an economic or monetary injury has best standing. (2) 3rd Party Standing: Plaintiff cannot assert claims of others who are not before the court unless (a) Close relationship between Plaintiff and Third Party, (b) Third Party not likely to assert own right (criminal Defendant has standing to raise rights of jury to be free from discrimination), (c) Organization suing for its members. (3) No Generalized Complaints: (a) Plaintiff cannot sue solely as a citizen or taxpayer. (i) Example: Taxpayer lacks standing to challenge grants of property by the government to religious institutions. (b) Except that taxpayer has standing to challenge Government expenditures as violating Establishment Clause. c) Ripeness (1) There must be a genuine immediate threat of harm. (2) Consider the harshness that will be suffered without pre-enforcement review and the fitness of the issues and records for judicial review.
Constitutional Law: Nature of Judicial Review

Hint: If someone is requesting a declaratory judgment, it is probably a ripeness question. d) Mootness: If file and then events happen that cause Plaintiffs injury to end, case is moot and must be dismissed except (1) Where the injury is capable of repetition yet evading review: Pregnancy is over yet can still continue case dealing with abortion, Roe v. Wade. (2) Voluntary cessation: Defendant stops offensive practice but is free to resume it at any time. (3) Class action suits: Named Plaintiffs case is moot, but at least 1 member of the class still has an injury. 2. The adequate and independent state ground: A doctrine governing the power of the U.S. Supreme Court to review judgments entered by State Courts. a) General rule: If the law is Federal, then the U.S. Supreme Court has jurisdiction to review the State Court judgment. If it is State Law, then it does not. b) If it is a mix of Federal and State Law, then if the state ground is adequate to support the judgment and independent of Federal Law, then the Federal court does not have the jurisdiction. (1) Adequate to support the judgment: State procedural rule is presumed to be adequate unless it is arbitrary, unforeseen, or unreasonable. (2) Independent of Federal Law: If it is not "apparent from the four corners of the opinion that the judgment rests on an independent State Law rule, then, unless it is necessary or desirable to obtain clarification from the State Court itself, the Supreme Court will presume that the decision rested in part on Federal Law, thus rendering it reviewable. c) Other rules: (1) All cases from State Courts go to US Supreme Court by writ of certiorari. (2) Federal courts can only hear cases from State Courts after there has been a final judgment from the highest State Court. 3. Political questions: A statement used by Federal courts to decline ruling. a) Constitutional violations which Federal court will not hear: (1) Republican form of Government clause: A Government in which decisions are made wholly by the peoples representatives, not by the people themselves. (2) Challenges to the Presidents conduct of foreign policy/affairs, includes rescinding a treaty. (3) Challenges to the impeachment and removal process. b) If U.S. waives its sovereign immunity (e.g. Federal Torts Claims Act) then political question does not apply.

Constitutional Law: Nature of Judicial Review

II. The Separation of Powers (20% of the Constitutional Questions)

A. The powers of congress: 1. Commerce, taxing and spending: a) Commerce power: (1) Can regulate channels of interstate commerce. (2) Instrumentalities of interstate commerce such as trucks and planes. (3) Can regulate economic activities that have a substantial economic effect on interstate commerce: applies to both domestic and foreign commerce. (4) Cannot regulate a non-economic activity. (a) Possession of a firearm in a school zone does not affect interstate commerce. (b) Keeping a wild animal does not have a substantial economic effect. (5) 10th amendment puts a limit on Congress power to compel state regulatory or legislative action, but Congress can induce state Government to act by putting strings on funds and prohibit harmful commercial activity by state. b) Taxing and spending power: (1) Exclusive (plenary) power of Congress but still subject to judicial review. Hint: On the exam, if you see the word appropriation, look for taxing and spending power. (2) Congress can spend in any way it believes will serve the general welfare. (a) General Welfare Clause is not an independent source of power, if it is standing by itself it is a wrong answer. (b) Will only be correct when dealing with taxing and spending or the Federal police power. 2. War, defense, and foreign affairs: a) War power: Power to declare war and authority to remedy an economic problem that directly/substantially flows from the war. b) Defense power: Power to declare war, to raise and maintain the armed forces, and to make rules for the military. c) Foreign affairs: The President has the power to negotiate treaties, but the Senate must ratify them. 3. Power to enforce the 13th, 14th, and 15th amendments:
Constitutional Law: Separation of Powers

a) 13th amendment: Prohibits involuntary servitude. b) 14th amendment: Guarantees equal protection and due process for all citizens. c) 15th amendment: Bans race-based voting. 4. Other powers: a) Power to coin money and regulate its value. b) Power to establish post offices and railroads. c) Property Power (1) Power to issue patent and copyright. (2) Power to dispose of the territory or other property belonging to the U.S. (a) District of Columbia (b) Wild animals on Federal property (c) Military ships and airplanes (d) Federal buildings/enclaves (e) Indian reservations d) Necessary and Proper Clause: (1) Allows Congress to use any means not prohibited by the Constitution to carry out its powers. Hint: However, it is not an independent source of power and standing alone is a wrong answer. Necessary and Proper Clause will only be the correct answer if it carries into effect other enumerated powers. e) Power over courts: (1) There can only be one U.S. Supreme Court and Congress cannot divide the court. (2) Lower Federal Courts: Congress has plenary/exclusive power over the lower Federal courts (district courts and courts of appeal) and can: (a) Confer jurisdiction, (b) Remove jurisdiction, and (c) Limit jurisdiction. f) Section 5 of 14th amendment: (1) Congress cannot create new rights or expand the scope of existing rights. (2) Can only prevent or remedy violations of existing rights. B. The powers of the President: 1. As chief executive: The take care clause states that the President shall take care that the laws be faithfully executed. a) It has also been asserted that the President's responsibility in the "faithful" execution of the laws entitles him to suspend the privilege of the writ of habeas corpus if deemed necessary upon Congress authorization. b) The judiciary may not restrain the President in the execution of laws. 2. As commander in chief: The President is the highest-ranking officer in the military. 3. Treaty and foreign affairs powers: President may negotiate treaties, but 2/3 of the Senates have to approve it. a) Executive Agreements: (1) Agreements between U.S. and foreign Government; no Senate approval required. (2) Can be used for any purpose. (3) Prevail over conflicting State Laws. (4) If in conflict with Federal Law or Constitution, then it is invalid. b) Troops (1) President has broad power to use American troops in foreign countries. Hint: If question deals with whether President has power to send troops to foreign country, President always wins either because it is a political question or due to the
Constitutional Law: Separation of Powers

broad powers afforded by the office. c) Emergency Powers: The President has broad emergency powers but they are not absolute. 4. Appointment and removal of officials: a) Appointment Power: (1) With Senate consent, President appoints (a) Ambassadors, Consoles, (b) Federal judges, Supreme Court Justices and (c) Officers of the U.S. (member of an agency or commission having administrative or enforcement powers). (2) With regard to the power to appoint inferior officers, Congress can give this power to the President, heads of departments or lower Federal courts. (3) Congress cannot give itself, or its officers the power of appointment. b) Removal Power: (1) President may fire any executive branch official unless limited by statute. (2) Statute can limit removal only for good cause if office is one where independence from the President is desirable (e.g. independent counsel). C. The Federal interbranch relationships: 1. Congressional limits on the executive: a) Impeachment and Removal (1) Impeachment: (a) The first of two stages in a specific process for a legislative body to remove a Government official without that official's agreement. The second stage is conviction. (b) President, Vice-President and Federal judges and officers can be impeached and removed for treason, bribery or high crimes and misdemeanors. (2) Removal or Conviction: (a) Can only be removed if Senate convicts. (b) Impeachment by House of Reps requires majority vote. (c) Conviction in Senate requires 2/3 vote. b) Executive agreements: While a treaty supersedes prior inconsistent Federal statutes, an executive agreement does not. Congress may, by statute, limit the Presidents power to make executive agreements. c) Congress, not the President, has the power to declare war. d) Executive appointees can be removed at Presidents will even if Senates consent is required for appointment. However, when the officers are appointed pursuant to an act that specifies the length of their term of office, then they can be removed by the President only for cause. 2. The presentment requirement and the Presidents power to veto or to withhold action: a) In order to act, Congress needs bicameralism and a passage by both the House and Senate. b) Presentment of bill to President to sign or veto. c) Unconstitutional: (1) Legislative vetoes: When seek to overturn an executive action without bicameralism and presentment. (2) Line-item vetoes: When President wants to veto part of a bill. 3. Non-delegation doctrine: a) Congress cannot delegate executive power to itself or its officers. b) Congress can give away its powers but cannot take away powers from other branches of Government. c) There is no limit on ability to delegate to executive and judiciary branches.
Constitutional Law: Separation of Powers

Hint: On the exam, the answer is wrong if Congress has exceeded its power to delegate. 4. Executive, legislative, and judicial immunities: a) Absolute immunity: President has absolute immunity to civil suits for money damages for any actions while in office, but not for actions that occurred prior to taking office. b) Executive privilege: President has executive privilege for Presidential papers and conversations unless there is an important Government interest. c) Pardon Power: President has power to grant pardon or reprieves for Federal crimes. (1) Only for Federal crimes not state crimes. (2) Only for criminal liability not civil liability. (3) Cannot pardon someone who has been impeached by the House.

Constitutional Law: Separation of Powers

III. The Relations of Nation and States in a Federal System (20% of the Constitutional Questions) A. Intergovernmental immunities: 1. Federal immunity from State Law: a) States cannot tax or regulate Federal Government activity. (1) It is unconstitutional to pay state tax out of the Federal treasury. (a) Private store on Federal land can be ordered to pay state tax. (b) Military store on military base cannot be ordered to pay state tax. (2) Cannot force federal Government to comply with state pollution laws. 2. State immunity from Federal Law, including the 10th amendment: a) According to the 10th amendment, the Federal Government has the power to regulate only matters specifically delegated to it by the Constitution. b) Other powers are reserved to the States. c) Supreme Court cannot sue state officials if it is the state treasury who will be paying retroactive damages for the past harm. d) Abstention: Federal court will not (1) Review a case where there is an unsettled issue of State Law, (2) Review a case where there are pending state criminal proceedings, (3) Enjoin pending State Court proceedings. B. Federalism-based limits on state authority 1. Negative implications of the commerce clause or dormant commerce clause: a) A restriction prohibiting a state from passing legislation that improperly burdens or discriminates against interstate commerce or out-of-staters. b) If it does not discriminate: Unconstitutional if places undue burden (burden exceeds its benefits) on interstate commerce. c) If it does discriminate: (1) Unconstitutional if it places a burden on interstate commerce unless it is necessary to achieve an important Government purpose. (2) Except will still be constitutional if: (a) Congress approves of the discrimination, or congress passes a federal statute similar to the state statute, (b) Are a market participant, (c) Public college charges less to in-state residents. d) State Taxation of Interstate Commerce: Rarely tested (1) States cannot use their tax systems to help in-state businesses; Tax credit for purchasing product produced in own state. (2) State can only tax activities if there is a substantial nexus to the state. (3) State taxation of interstate business must be fairly apportioned. 2. Supremacy clause and preemption a) Supremacy clause: Constitution, Federal Laws, and treaties are the supreme law of the land. b) Preemption (1) Express: If statute states that Federal Law wholly occupies a field, State Law is preempted (e.g. aviation). (2) Implied: Federal law (including an administrative order) preempts State law (a) If Federal and State Law are mutually exclusive, (b) Arises when cannot comply with both laws at same time because they say opposite things (supersession doctrine). Hint: States can set environmental standards that are stricter than Federal Law unless Congress prohibits it, state law gets in the way of achievement of a federal objective, or Congress shows a clear intent to preempt state law.
Constitutional Law: Relations of Nation and States in Federal System

3. Full faith and credit: Court in one state must give full faith and credit to judgments of courts in another state if a) Court that rendered the judgment had jurisdiction over the parties and subject matter, b) Judgment was on its merits, and c) Judgment is final. 4. Authorization of otherwise invalid state action: When congress chooses, state actions which congress plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.

Constitutional Law: Relations of Nation and States in Federal System

IV. Individual Rights (50% of the Constitutional Questions)

A. State action: When State is trying to have some rules that may interfere with the US Constitution. 1. Application of constitution: a) Constitution only applies to actions by a Government. b) Does not apply to actions by private individuals or businesses. 2. Exceptions: a) Public Function Exception: Constitution applies if a private entity is performing a task traditionally and exclusively done by Government (e.g. holding elections). b) Entanglement Exception: Constitution applies if Government authorizes an unconstitutional activity. (1) Courts cannot enforce racially restrictive covenants. (2) Constitution applies (entanglement) when: (a) Government leases premises to restaurant that racially discriminates, (b) State provides books to schools that racially discriminate, (c) Private entity regulates interscholastic sports within a state. c) No entanglement when: (1) Private school that is over 99% funded by Government fires a teacher because of his speech,
Constitutional Law: Individual Rights

(2) National Collegiate Athletic Association (NCAA) orders the suspension of a coach at a state university, (3) Private club with a liquor license from the state racially discriminates. 3. Bill of Rights a) Apply directly to the Federal Government. b) Apply by incorporation to state and local governments. c) Except that the following rights do not apply to the states and states can change them: (1) Right to bear arms (2) Right to not have a soldier quartered in persons home (3) Right to grand jury indictment in criminal cases (4) Right to jury trial in civil cases (5) Right against excessive fines 4. Levels of Scrutiny a) Strict Scrutiny: Constitutional, if it is necessary to achieve a compelling Government purpose. (1) There must be no less restrictive alternatives available. (2) Burden is on the Government. b) Intermediate Scrutiny: Constitutional, if it is substantially related to an important Government interest. (1) Narrowly tailored but not the least restrictive means. (2) Burden is on the Government. c) Rational Basis (1) Constitutional, if it is rationally related to a legitimate Government purpose. (2) Burden is on challenger to show not rationally related. Concerned about the number of single teenage mothers and the deleterious effects of overpopulation, the state of Northwest enacts legislation requiring that any person under the age of 25 must obtain a certificate of responsibility before having children. Any child born whose parents do not have a certificate of responsibility will be placed up for adoption. Sarah, a pregnant 21-year-old resident of Northwest, challenges the legislation. If Sarah's action proceeds to substantive determination, which of the following is most accurate? ( A ) The state bears the burden of proving that its law is necessary to achieve a compelling Government purpose, because it has a substantial impact upon a fundamental right. ( B ) The state bears the burden of proving that its law is necessary to achieve a compelling Government purpose, because it creates a suspect classification. ( C ) Sarah bears the burden of proving that the law is not necessary to achieve a compelling Government purpose, because it is presumed valid. ( D ) Sarah bears the burden of proving that the law is not necessary to achieve a compelling Government purpose, because it is an exercise of the state's police power. Answer: ( A ) If the case goes to trial, the state will have the burden of proving that the statute is necessary to achieve a compelling Government purpose because it has a substantial impact on a fundamental right. The right to have children involves the fundamental right of privacy, and when a statute imposes on a fundamental right, it will violate due process unless the state can show that it is necessary to promote a compelling interest. ( B ) is incorrect because no suspect class is involved here. It is true that if a law impacts a suspect class, it is unconstitutional unless the state can prove that the law is necessary to achieve a compelling interest, but age-the only classification involved in the question-is not a suspect class.
Constitutional Law: Individual Rights

( C ) is incorrect because statutes are presumed to have a sufficient relationship to a Government interest only if they are tested under the rational basis test (e.g., where neither a suspect class nor a fundamental right is involved), and the statute here will be tested under strict scrutiny since a fundamental right is involved. ( D ) is incorrect because it is an incorrect statement of law-the burden of persuasion is not placed on the challenger merely because the law is within the state's police power. B. Due Process 1. Substantive due process: Substantive due process should be analyzed when a law affects all persons as opposed to equal protection, which should be analyzed when a law affects only to some persons. a) Fundamental rights: Relates to private matters and usually strict scrutiny applies. (1) Right to marry (2) Right to procreate (e.g. sterilization laws) (3) Right to custody of ones children (e.g. terminating rights.) However, State can create an irrebuttable presumption that a married womans husband is the father of the child. (4) Right to keep family together, including relatives (5) Right to control upbringing of ones children (e.g. choosing school) and court cannot order grandparent visitation if parent objects (6) Right to purchase and use contraceptive b) Other rights: (1) Right to abortion (a) Does not use strict scrutiny, rather uses undue burden test. (b) Before viability, states cannot prohibit, but can regulate abortions as long as do not create an undue burden on ability to obtain abortions. (i) Requirement for 24-hour waiting period is not an undue burden. (ii) Requirement that abortions be performed by licensed physicians is not an undue burden. (iii) Prohibiting partial birth abortions is an undue burden. (c) After viability, states can prohibit abortions unless necessary to protect womans life or health. (d) Government does not have to pay for abortions or provide abortions in public hospitals. (e) Spousal consent, and notification laws are unconstitutional. (f) State can require parental notice and/or consent for an unmarried minors abortion as long as there is an alternative procedure where minor can get an abortion by going before a judge who can approve the abortion by finding it is: (i) In the minors best interest, (ii) Or that minor is mature enough to decide for herself (2) Right to engage in private homosexual activity (3) Right to refuse medical treatment (a) Competent adults have right to refuse medical treatment, even life-saving medical treatment (b) State can require clear and convincing evidence that person wanted treatment terminated (c) State can prevent family members from terminating treatment for another (4) No right to physician-assisted suicide (5) Right to property (6) Right to contract (7) Right to business 2. Procedural due process:
Constitutional Law: Individual Rights

a) General: Constitution requires a notice and a hearing when there has been a deprivation of life, liberty or property. b) Personal jurisdiction: In general, to be subject to personal jurisdiction, a defendant that was not personally served with process within the state must have a sufficient level of personal or business contacts with the state in which the court sits that the defendant could reasonably expect to be sued there. c) Deprivation (1) Government negligence is not sufficient for deprivation. (2) Must be intentional or reckless conduct. (3) If an emergency, not deprivation unless conduct shocks the conscience. (4) Example: Police car-chasing suspect, reckless run over boy, no deprivation of life without due process because it was an emergency. d) Deprivation of liberty (1) Loss of significant freedom. (2) Notice and hearing required before an adult can be institutionalized unless there is an emergency. (3) If parent institutionalizes a child, just need a screening by neutral fact-finder. (4) Harm to reputation by itself is not loss of liberty, need economic loss too. (5) Prisoners rarely have a loss of liberty; they usually lose. e) Deprivation of Property (1) Occurs when there is an entitlement (reasonable expectation) and that entitlement is not fulfilled. Hint: No longer use right and privileges language so will be a wrong answer when it says right, but not privilege, or vice versa (2) If federal government says you have a job for 1 year then fires you during middle of year, there must be notice and a hearing. f) Private Harm: Governments failure to protect people from privately inflicted harms does not deny due process unless Government created the danger. g) Procedure: Procedures required when deprivation occurs; balance (1) Importance of interest to the individual, (2) Ability of additional procedures to increase the accuracy of decisions, (3) Government interest in administrative efficiency (cost to Government). h) Examples: (1) Before welfare benefits can be terminated, need notice and a hearing. (2) Before parental rights can be terminated, need notice and a hearing. (3) When social security benefits are terminated, need a hearing after terminated. (4) Punitive damages require an instruction to the jury and judicial review. (5) Grossly excessive punitive damages violate due process. (6) Prejudgment attachment or Government seizure of assets must be preceded by notice and a hearing except in exigent circumstances: Government can seize assets even from an innocent owner. C. Equal Protection: Equal protection clause of 14th amendment applies only to state and local governments. Equal protection is applied to Federal Government through the due process clause of the 5th amendment. 1. Fundamental Rights: Strict scrutiny test applies a) Travel (not foreign travel) (1) Laws preventing people from moving into state = strict scrutiny (2) Durational residency requirement is under strict scrutiny, and 50-day requirement is the max for voting. b) Voting
Constitutional Law: Individual Rights

(1) Laws denying some citizens right to vote = strict scrutiny (a) Poll taxes (b) Property ownership requirement for voting except can require property ownership in water district elections (c) Switching party affiliation (d) Gerrymandering (e) Reapportionment: One-person-one-vote is required Hint: Even if all voters approve to deviate from the one-person-one-vote, it is not allowed. (2) At-large elections are constitutional unless proof of discriminatory purpose. (3) Counting uncounted votes without pre-existing standards in a Presidential election is unconstitutional. (4) Age requirement for candidate = rational basis. 2. Classifications subject to heightened scrutiny: a) Suspect class: Laws prohibiting the rights of the following groups will be very carefully analyzed and most likely be unconstitutional: (1) Race (a) Classification can be on its face or neutral. (b) If facially neutral, prove racial classification by showing discriminatory impact and discriminatory intent. (c) If only show one, use rational basis. (d) Racial classification that benefit minorities. (i) Can have numerical set-asides (quotas) for past discrimination. (ii) Schools can use race as one factor in admission decisions to help minorities. (iii) But cannot add points to applications based on race. (iv) Seniority systems cannot be disrupted for affirmative action. (2) Alienage, or national origin (a) Discrimination against Non-U.S. citizens. (b) Use strict scrutiny except: (i) Rational basis for alienage classifications that concern self Government or democratic process, (ii) Voting, serving on jury, becoming police officer, teacher or probation officer. (c) Rational basis when Congress discriminates against aliens (immigration laws). b) Intermediate scrutiny applies to the following groups: (1) Gender: (a) Gender discrimination is allowed if there is an exceedingly persuasive justification. (b) Classification can be on its face or neutral (i) If facially neutral, prove racial classification by showing discriminatory impact and discriminatory intent, (ii) If only show one, use rational basis. (c) Gender classifications benefiting women. (i) Those based on role stereotypes are not allowed: (a) Awarding women alimony, but not men, (b) Survivor benefits to women, but not men unless show they were economically dependent. (ii) Those designed to remedy past discrimination and differences in opportunity are allowed: Social security formula benefiting women are allowed. (2) Non-marital Children (a) Laws that deny a benefit to all non-marital children but, give it to all marital children are unconstitutional; only marital children can inherit from father is unconstitutional.
Constitutional Law: Individual Rights

(b) Laws that deny a benefit to some non-marital children is ok: Non-marital children can inherit if there is a paternity test before father dies is constitutional. (c) Undocumented Alien Children: Illegal alien children have a right to public education. 3. Rational basis review: a) Age discrimination b) Disability discrimination c) Wealth discrimination d) Economic regulations e) Sexual orientation discrimination f) All other discrimination The state of Bar was suffering a dual problem-that is, an influx of illegal immigrants and high unemployment as a result of a near depression caused by layoffs in the tourist-service industry. In an attempt to alleviate both problems, the state of Bar enacted a statute providing for the immediate hiring of 100,000 employees to repair, maintain, and otherwise work at the discretion of the Director of Highways. The statute further stated that preference would be given to persons who had worked in the tourist service industry for five years and had been laid off. Section 2 of the statute provided that resident aliens would be employed only if no employees were available from the tourist-service industry as provided for above. Assume that the state Supreme Court of Bar declared the statute to be unconstitutional on the ground that it was in conflict with the Supremacy Clause of the Constitution as well as the Equal Protection Clause of the state constitution. Will the decision be reviewed by the United States Supreme Court? ( A ) No, because it does not meet the requirements of certiorari. ( B ) Yes, because it meets the requirements of appeal. ( C ) Yes, because the Supreme Court has original jurisdiction of all cases to which the state is a party. ( D ) No, because of the "adequate and independent state ground" theory. Answer: ( D ) The Supreme Court probably would not review the state decision because it is, in part, based on a violation of the Equal Protection Clause of the state constitution, an adequate and independent state ground upon which the decision would rest even if the Federal issue were resolved (assuming that the State Court's disposition of the state constitutional issue did not depend on Federal doctrines). ( A ) is wrong because if it were not for the adequate and independent state ground, this type of challenge could be heard by the Court in its discretion. ( B ) is wrong because this type of case would not meet the very narrow requirements of appeal. ( C ) is wrong because this is a question of appellate jurisdiction, not original jurisdiction. D. Taking Clause: Government may take private property for public use if it provides just compensation. 1. Taking a) Possessory taking (imminent domain): Government confiscates or physically occupies property or (1) Size of property does not matter b) Regulatory taking (inverse condemnation): Government regulation leaves no reasonably economically viable use of property
Constitutional Law: Individual Rights

(1) If see that land is rendered valueless = taking (2) Not taking if it only decreases the value of the property 2. If Government places conditions on owners ability to develop property it will be a taking unless benefit is roughly proportion to the burden imposed 3. Can bring a takings challenge: a) Even if the regulations existed at the time the owner bought the property, b) Even if the owner knows of the restrictions before buying the property. 4. Temporarily denying an owner use of his property is not a taking if the Governments action is reasonable. 5. Public Use: a) Broad definition and covers any use that Government reasonably believes will benefit the public. b) If not for public use: Have to give property back. 6. Just Compensation: Measured in terms of loss to the owner, not gain to the Government a) Government takes property which has a fair market value of $100,000 (loss to owner) but gain to the Government will be $1 million. b) Government only has to pay $100,000. In an effort to protect the California condor, Congress enacted the Condor Preservation Act, which made it illegal to take, possess, or sell any part of a California condor. The constitutionality of the Act is challenged by Zephyr, a seller of gifts and artifacts, including artifacts made out of California condor feathers. Is the Act valid? ( A ) No, the statute violates due process because the absolute prohibition on sale is an effective taking under the Fifth Amendment Due Process Clause without just compensation. ( B ) No, because the statute is discriminatory as applied. ( C ) Yes, because the regulation is rationally related to interstate commerce. ( D ) Yes, because the statute is designed to protect a dwindling national resource. Answer: ( C ) Regulating the possession, or sale of an item made from a California condor clearly affects commerce. Thus, Congress can act under its broad commerce power. Since the regulations do not compel surrender of the artifacts, and there is no physical invasion or restraint upon them, there is no taking of a property right without just compensation. Therefore, Congress's power to regulate is proper, even though it diminishes the opportunity to make a profit. Thus, ( A ) is incorrect. ( B ) is not supported by the facts. ( D ) states the right conclusion, but for the wrong reason. E. Other protections 1. Privileges and immunities clauses: a) Applies only if discriminating against out-of-staters: Corporation and aliens cannot sue under it. b) Unconstitutional if it discriminates against individuals with regard to civil liberties or important economic activities (e.g. ability to earn a livelihood) unless it is necessary to achieve an important Government purpose. 2. The contracts clause: a) Application: (1) Applies only to state or local interference with existing contracts. (2) Does not apply to Federal Government interference or future contracts. b) Private Contracts: State or local interference with private contracts must meet intermediate scrutiny.
Constitutional Law: Individual Rights

c) Government Contracts: State or local interference with Government contracts must meet strict scrutiny. Hint: On the exam, ex post facto clause is usually a wrong answer when dealing with contracts. 3. Unconstitutional conditions: Prevents a state from imposing a condition that is unrelated to the purpose to be furthered. If the Government conditions the use or regulation of an owners property on the receipt of a public benefit, the Government must compensate the owner unless: a) There is an essential nexus between the legitimate state interest and the condition; and b) The nature and extent of the condition are roughly proportional to the harm prevented by the regulation. c) e.g. A state may not refuse to pay unemployment benefits to a Seventh Day Adventist who rejects a job that requires him to work on Saturdays. 4. Bills of attainder: a) An act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial. b) Never constitutional 5. Ex Post Facto Law a) 3 ways to make law ex post facto, a law: (1) Criminalizes an action that was legal when committed, (2) Increases the punishment for a crime, (3) Changes the procedure for a conviction such as Evidence. b) Generally unconstitutional to have retroactive punishment. c) Applies to both state and federal Government actions. F. First Amendment 1. Freedom of religion and separation of church and state: a) Free Exercise Clause (1) Cannot use to challenge a neutral law of general applicability; have to show it is targeting religion. (2) An Indian tribe once sued the law that prohibited marijuana, saying it is part of their religion and the court said that the free exercise clause cannot be used, because the law is not targeting religion; it is targeting everyone. (3) Government cannot deny benefits to individuals who quit their jobs for religious reasons. b) Establishment Clause (1) Government cannot endorse religion or a particular religion. (2) To not violate the establishment clause, a law must have: (a) A secular primary purpose, (b) An Effect that neither advance nor inhibit religion, and (c) No excessive entanglement with religion. (i) Government cannot pay salary in religious schools. (ii) Members of clergy can hold public office. (3) Religious symbol on Government property is allowed if: (a) There is at least one symbol from another religion, and (b) At least one secular symbol. (4) Government cannot discriminate against religious speech or religion unless meet strict scrutiny. (5) Government sponsored religious activity in public schools is unconstitutional. (a) School prayer is not allowed. (b) Moment of silence is not allowed.
Constitutional Law: Individual Rights

(6) Religious student and community groups must have same access to school facilities as non-religious groups. (a) If open school to other groups, have to allow religious groups access. (7) Government can give assistance to parochial (religious) schools as long as it is not for religious instruction. (8) Government may provide parents with vouchers which they use in parochial schools. 2. Freedom of expression and association: a) Content based regulation of protected expression: Strict scrutiny. (1) Subject matter restrictions (a) Where application of law depends on topic of the speech, (b) No picketing unless it is a labor protest. (2) Viewpoint restrictions (a) Where application of the law depends on ideology of the message. (i) e.g. Flag burning is constitutionally protected (ii) e.g. Draft card burning is not protected (b) Pro-war demonstrations are allowed in park, but not anti-war demonstrations. b) Content neutral regulation of protected expression (1) Applies intermediate scrutiny (a) Where law applies to all speech, (b) No demonstrations or speech in public parks. (2) Places for Speech (a) Public forums: Government is required to make public forums available for speech such as sidewalks and parks but not sidewalks on post offices. (i) Regulation must be subject matter and viewpoint neutral. (ii) Regulation must be a time, place and manner regulation that leaves open alternative places for regulation. (iii) Regulation does not need to be the least restrictive means. (iv) City officials cannot have discretion to set permit fees. (b) Limited (Designated) Public Forums (i) Places Government could close can choose not to include school facilities on weekends. (ii) Once open them up, have to comply with the same rules as public forums. (c) Non-Public Forums (i) Not required to open to public if chooses not to. (a) Military bases (b) Areas outside prison and jails (c) Advertising space on city buses (d) Sidewalks on post office property (e) Airports (f) Candidate debates sponsored by Government owned stations (ii) Can regulate as long as regulation is reasonable and viewpoint neutral. (d) Private Property: No right to free speech on private property (shopping malls). c) Regulation of unprotected expression (1) Obscenity: Most popular on bar (a) Not protected. (b) Test is obscene. (i) Material appeals to prurient interest (community standard), (ii) Material is patently offensive under law (local standard), and (iii) Lacks serious redeeming artistic, literary, political or scientific value (national standard). (c) Government can use zoning ordinances to regulate the location of adult bookstores and movie theaters.
Constitutional Law: Individual Rights

(d) Child porn can be completely banned. (i) Even if not obscene. (ii) Must be pictures of actual children, not computer generated children. (e) Government can punish private possession of child porn. (f) Government cannot punish private possession of obscene materials. (g) Government can seize all assets of business convicted of violating obscenity laws even if some assets are not obscene. (2) Profane and Indecent Speech (a) Is protected (Fuck the Government) even if on internet and accessible to children except not protected if: (i) Over broadcast media (TV and radio but not cable TV), (ii) Schools. (3) Incitement of Illegal Activity: Government can punish speech if (a) There is a substantial likelihood of imminent illegal activity, and (b) Speech is directed to causing imminent illegal activity. (4) Defamation is not protected. (a) Public Official : Must show falsity and malice (b) Public Figure (thrust into limelight, celebrity): Must show falsity and malice. (c) Private Figure and Matter of Public Concern: Must show falsity and negligence. (d) Private Figure and Matter of Private Concern: Does not need to show falsity or malice. d) Regulation of commercial speech: Non-misleading commercial speech is protected by intermediate scrutiny. (1) Some commercial speech is not protected: (a) False and deceptive ads, (b) Vice advertising: Sale of alcohol, tobacco. (2) Commercial speech that inherently risks deception can be prohibited. (a) Can prevent professional from advertising/practicing under a trade name. (b) Can prevent in-person solicitation of clients for profit. (i) Allows free representation offered. (ii) Allows letter solicitation. (c) Cannot prevent accountants from in-person solicitation of clients. (3) Government regulation is valid if: (a) Directly advances a substantial governmental interest, and (b) Narrowly tailored (does not need to be least restrictive alternative). e) Regulation of, or impositions upon, public school students, public employment, licenses, or benefits based upon exercise of expressive or associational rights are usually reviewed with strict scrutiny. f) Regulation of expressive conduct: (1) Flag burning is protected. (2) Draft card burning is not protected. (3) Nude dancing is not protected. (4) Burning a cross is protected unless done with intent to threaten or intimidate. (5) Anonymous speech is protected. (6) Penalty enhancements for hate crimes are constitutional. (7) Contribution limits in elections are constitutional. (8) Expenditure limits in elections are not constitutional. g) Prior restraint, vagueness, and overbreadth: (1) Prior Restraints: Government's actions that prevent materials from being published. (a) the Court held prior restraints to be unconstitutional, except in extremely limited circumstances such as national security issues (b) Gag order on press to prevent judicial pretrial publicity is not allowed.
Constitutional Law: Individual Rights

(c) Government can require license for speech only if: (i) There is an important reason for licensing, and (ii) There is a clear criteria leaving no discretion to the licensing authority. (2) Vagueness (a) Law is vague if a reasonable person cannot tell what speech is prohibited and what is allowed: Unconstitutional. (b) MBE Example: If State A makes it a crime for unmarried couple to engage in infamous activities against nature or any other perverted sexual activities. it is unconstitutionally vague because it fails to give reasonable notice of what is prohibited. It is not unconstitutional because of Equal Protection Clause because, while the law distinguishes between married and unmarried couples, no suspect or quasi-suspect class is involved. (3) Overbreadth (a) Law is overbroad if it regulates more speech than constitution allows to be regulated. (b) Laws prohibiting fighting words are overbroad and unconstitutional. 3. Freedom of the press a) No liability for truthfully reporting info lawfully obtained from Government. b) No liability if media broadcasts a video of an illegally intercepted call, if: (1) Media did not participate in illegality, and (2) It involves matter of public concern. c) Government does not need to open up its papers and files to the public except criminal trials must be open to public. 4. Freedom of Association a) Laws that prohibit or punish group membership: strict scrutiny except when member actively affiliated with group: (1) Knows of its illegal activities, and (2) Has specific intent of furthering those illegal activities. b) Laws that require disclosure of group membership if such disclosure would chill association = strict scrutiny. c) Laws that prohibit a group from discriminating are unconstitutional. (1) Unless these groups interfere with intimate association (small group) or expressive association (KKK). (2) Some groups can discriminate under freedom of association. John Doe was an investigative reporter for the Daily Defamer, the leading newspaper in Sleazy City. John Doe told his editor that he had uncovered evidence that the mayor and several city council members had accepted bribes to rezone several parcels of land in which local organized crime leaders had substantial interests. John Doe was excited about a story on the bribes because it could make his reputation as an investigative reporter, and open up lucrative opportunities for him in television. The editor was also interested in the story, but he told John Doe that he would not print his expose unless he told him the sources of his information. John Doe refused to reveal his sources. The editor refused to print the story because he was afraid that the Defamer might be sued by the mayor, and the council members named by John Doe. Does John Doe have a 1st amendment right to a court order compelling the Defamer to publish the story? ( A ) Yes, under the Free Speech Clause. ( B ) Yes, because the 1st amendment allows a newspaper reporter to protect his sources. ( C ) No, because the newspaper is a private entity and can publish what it likes. ( D ) No, because the freedom of the press is more wide-ranging than freedom of speech.
Constitutional Law: Individual Rights

Answer: ( C ) The Defamer cannot be compelled to print the story because it is a private entity and may refuse to print what it likes. Pursuant to the 1st amendment, Congress can make no law abridging freedom of speech or of the press. This provision is applicable to the states through the 14th amendment Due Process Clause. Freedoms of speech and press include not only the rights to speak and publish freely but also the right to refrain from speaking or publishing. A court order compelling a newspaper to publish a particular story would violate the freedom of the press just as much as would a court order or other governmental action preventing the publication of a particular story. The Government cannot dictate the content of a newspaper or require it to disseminate a message with which it disagrees. ( A ) relies on an inaccurate interpretation of the Free Speech Clause. John Does 1st amendment right to free speech means that his own freedom of speech is protected from Government infringement. This freedom is not being abridged simply because a court refuses to order a newspaper to print his story. John Doe remains perfectly free to disseminate his story by speaking or writing about it, but he may not force the Defamer (or any other newspaper) to publish the story. ( B ) is incorrect because the sources of a reporter's information have not been held to be entitled to protection under the Constitution. Also, even if sources were entitled to such protection, this still would not authorize the state to compel a newspaper to publish a particular story. ( D ) is incorrect because the 1st amendment rights of the press generally are no greater than the 1st amendment freedom of speech afforded to other members of the public. ( D ) incorrectly implies that this question involves a competition between the relative merits of freedom of the press and general 1st amendment free speech. However, as noted previously, John Does freedom of speech is not at issue, because that freedom is not violated by a refusal to order the Defamer to print John Does story. Governmental compulsion to print the story would, however, infringe upon the freedom of the press.

Constitutional Law: Individual Rights