CONSTITUTIONAL LAW

PROFESSOR ERWIN CHEMERINSKY

Copyright © 2018 by BARBRI, Inc.

 CONSTITUTIONAL LAW
by Erwin Chemerinsky

OVERVIEW OF ORGANIZATION

I. The federal judicial power

II. The federal legislative power
III. The federal executive power
IV. Federalism
V. The structure of the Constitution’s protection of individual liberties
VI. Individual liberties
VII. Equal Protection
VIII. First Amendment

I. The Federal Judicial Power

A. The requirement for cases and controversies

1. Standing. Standing is the issue of whether the plaintiff is the proper party
to bring a matter to the court for adjudication.

a. Injury. The plaintiff must allege and prove that he or she has been
injured or imminently will be injured

i. Plaintiffs only may assert injuries that they personally have

suffered

ii. Plaintiffs seeking injunctive or declaratory relief must show

a likelihood of future harm
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 remedy the injury.
Copyright © 2018 by BARBRI, Inc.
2. CONSTITUTIONAL LAW

c. No third party standing. A plaintiff cannot assert claims of others,

of third parties, who are not before the court.

i. Exception: third party standing is allowed if there is a close

relationship between the plaintiff and the injured third party
ii. Exception: third party standing is allowed if the injured third
party is unlikely to be able to assert his or her own rights
iii. Exception: 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.

Exception: taxpayers have standing to challenge government

expenditures pursuant to federal (or state and local) statutes as
violating the Establishment Clause
Examples:
---Taxpayer has standing to challenge federal law providing
monetary aid to parochial schools
---Taxpayers do not have standing to challenge federal government
grants of property to religious institutions
---Taxpayers do not have standing to challenge federal government
expenditures from general executive revenues
---Taxpayers do not have standing to challenge state tax credits that
benefit religious institutions
 CONSTITUTIONAL LAW 3.

2. Ripeness. Ripeness is the question of whether a federal court may grant

pre-enforcement review of a statute or regulation.

a. The hardship that will be suffered without pre-enforcement review

b. The fitness of the issues and the record for judicial review

Constitutional Law – Problem #1

A state adopted a law requiring that all clothing sold within the state be treated with fire-
retardant material. The law empowered a state agency to issue rules specifying the required
treatment. A manufacturer of clothing that sold its products in the state brought suit in
federal court for a declaratory judgment as soon as the law was adopted, alleging that the
statute violated the United States Constitution.
What should the court do?
A) Entertain the suit, because a federal question is involved.
B) Entertain the suit, because an action for declaratory relief is a proper method of
deciding constitutional questions.
C) Abstain from the assertion of jurisdiction until a state court has the opportunity to
construe the statute.
D) Dismiss the suit.

3. Mootness. If events after the filing of a lawsuit end the plaintiff’s injury,
the case must be dismissed as moot.

a. Exception: wrong capable of repetition but evading review

b. Exception: voluntary cessation. If the defendant voluntarily halts

the offending conduct, but is free to resume it at any time, the case
will not be dismissed as moot.
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c. Exception: class action suits. A class action will not be dismissed

if the named plaintiff’s claim becomes moot so long as one member
of the class has an ongoing injury.

Constitutional Law – Problem #2

A 15-year-old sophomore high school student became pregnant, and the school board
required her to attend a special program for pregnant students instead of her regular
classes. The girl did not want to attend a special program; rather, she wanted to attend her
regular classes.
She sued the school district in federal district court, demanding that she be allowed to
attend her regular classes. Before her case came to trial, the girl gave birth to the child.
Subsequently, the district reinstated her in her regular classes.
When her suit comes before the federal district court, what should the court do?
A) Dismiss the action, because she is no longer pregnant.
B) Dismiss the action, because she is no longer required to attend the special
classes.
C) Hear the case on the merits, because she may get pregnant again before she
graduates from the high school.
D) Hear the case on the merits, because it impacts the right to privacy, which is an
important federal issue.

4. The political question doctrine. The political question doctrine refers to

constitutional violations that the federal courts will not adjudicate.

a. The “republican form of government clause”

 CONSTITUTIONAL LAW 5.

b. Challenges to the President’s conduct of foreign policy

c. Challenges to the impeachment and removal process

d. Challenges to partisan gerrymandering.

B. Supreme Court review

1. Virtually all cases come to the Supreme Court by writ of certiorari

a. All cases from state courts come to the Supreme Court by writ of
certiorari

b. All cases from United States courts of appeals come to the Supreme
Court by writ of certiorari
c. Appeals exist for decisions of three-judge federal district courts

d. The Supreme Court has original and exclusive jurisdiction for suits
between state governments

2. Generally, the Supreme Court may hear cases only after there has been a
final judgment of the highest state court, of a United States Court of
Appeals, or of a three-judge federal district court.

3. For the Supreme Court to review a state court decision, there must not be
an independent and adequate state law ground of decision. If a state court
decision rests on two grounds, one state law and one federal law, if the
6. CONSTITUTIONAL LAW

Supreme Court’s reversal of the federal law ground will not change the
result in the case, the Supreme Court cannot hear it.

Constitutional Law – Problem #3

An ordinance of a city prohibits leafleting on the grounds of any hospital or on the

sidewalks within five feet of the hospital entrances during visiting hours. A member of a
religious group advocating prayer to restore the sick to good health is arrested for violating
the ordinance, is fined $100, and is convicted. She appeals her conviction, claiming that
her constitutional rights were violated.
The case was heard by the state supreme court, which ruled that while the ordinance was
permissible under the United States Constitution, it was unconstitutional under the state
constitution because the fine money was designated to go to the city’s only hospital, which
was privately owned, rather than to the city. The city seeks to bring the case before the
United States Supreme Court.
Should the United States Supreme Court grant certiorari?
A) No, because the case was decided on independent state grounds.
B) No, because the case is moot.
C) No, because this is a political question.
D) Yes, the Supreme Court should hear the case on its merits, because it involves an
important federal question.

C. Lower federal court review

1. Federal courts (and state courts) may not hear suits against state
governments

a. The principle of sovereign immunity

i) The Eleventh Amendment bars suits against states in

federal court
 CONSTITUTIONAL LAW 7.

ii) Sovereign immunity bars suits against states in state courts

or federal agencies

b. Exceptions. States may be sued under the following circumstances

i) Waiver is permitted

ii) States may be sued pursuant to federal laws adopted under

section 5 of the Fourteenth Amendment. Congress cannot
authorize suits against states under other constitutional
provisions.

iii) The federal government may sue state governments.

iv) Bankruptcy proceedings.

c. Suits against state officers are allowed

— state officers may be sued for injunctive relief;
— state officers may be sued for money damages to be paid
out of their own pockets
— state officers may not be sued if it is the state treasury that
will be paying retroactive damages

2. Abstention. Federal courts may not enjoin pending state court proceedings

II. The Federal Legislative Power

A. Congress’s authority to act

1. There must be express or implied Congressional power

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2. The necessary and proper clause

Constitutional Law – Problem #4

The federal government has complete jurisdiction over certain parkland located within a
state. To conserve the wildlife inhabiting that land, the federal government enacted a statute
forbidding all hunting of animals in the federal park. That statute also forbids the hunting of
animals that have left the federal park and have entered the state. A hunter has a state
hunting license, authorizing him to hunt deer anywhere in the state. On land within the state
located adjacent to the federal park, the hunter shot a deer he knew had recently left the
federal land.
If the hunter is prosecuted for violating the federal hunting law, what is the strongest
ground supporting the constitutionality of the federal law forbidding the hunting of wild
animals that wander off of federal property?
A) This law is a necessary and proper means of protecting United States property.
B) The animals are moving in the stream of interstate commerce.
C) The police powers of the federal government encompass protection of wild animals.
D) Shooting wild animals is a privilege, not a right.

3. The taxing/spending power and the commerce power

a. Congress may tax and spend for the general welfare

Constitutional Law – Problem #5

The federal Food Safety Act provides for sporadic inspections of produce in order to
prevent illness among consumers. After several widespread outbreaks of illness
involving escarole, a new and more accurate procedure for determining the presence of
harmful bacteria was developed. The new procedure was used in a limited area on
escarole shipped locally within a large escarole-producing state to determine its
effectiveness. Subsequently, Congress enacted an additional provision to the Act,
levying a one cent tax on each crate of escarole so inspected.
 CONSTITUTIONAL LAW 9.

Is this provision constitutional?

A) Yes, under the Supremacy Clause.
B) Yes, because it is a proper exercise of congressional power to raise revenue.
C) No, because the escarole subject to the inspection is not being sold in interstate
commerce.
D) No, because it interferes with state sovereignty.

b. The Commerce Power

i) Congress may regulate the channels of interstate commerce

ii) Congress may regulate the instrumentalities of interstate

commerce and persons or things in interstate commerce

iii) Congress may regulate economic activities that have a

substantial effect on interstate commerce. (In the area of
non-economic activity, a substantial effect cannot be based
on cumulative impact.) Also, five justices have said that

Congress cannot regulate inactivity.

4. The Tenth Amendment as a limit on Congressional powers. The Tenth

Amendment states that all powers not granted to the United States, nor
prohibited to the states, are reserved to the states or the people.

a. Congress cannot compel state regulatory or legislative action.

Note: Congress can induce state government action by putting
strings on grants, so long as the conditions are expressly stated and
relate to the purpose of the spending program. Also, the conditions
cannot be unduly coercive.

b. Congress may prohibit harmful commercial activity by state

governments.
10. CONSTITUTIONAL LAW

5. Congress’ power under section 5 of the Fourteenth Amendment. Congress

may not create new rights or expand the scope of rights. 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.

B. Delegation of powers

1. No limit exists on Congress’ ability to delegate legislative power.

Constitutional Law – Problem #6

Congress passed a statute requiring energy consumption be reduced by a specified
percentage, to be set by a presidential executive order. The statute provided specific
standards that the President must use in setting the percentage, and detailed procedures to
be followed.

Is this statute likely constitutional?

A) Yes, because it creates a limited administrative power to implement the statute.

B) Yes, because inherent executive powers permit such action even without statutory
authorization.
C) No, because it is an undue delegation of legislative power to the executive branch.
D) No, because it violates the Due Process Clause of the Fifth Amendment.

2. Legislative vetos and line-item vetos are unconstitutional. For Congress to

act, 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).
The President must sign or veto the bill in its entirety.

3. Congress may not delegate executive power to itself or its officers

 CONSTITUTIONAL LAW 11.

III. The Federal Executive Power

A. Foreign policy

1. Treaties. 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.

a. Treaties prevail over conflicting state laws

b. If a treaty conflicts with a federal statute, the one adopted last in time
controls

c. If a treaty conflicts with the United States Constitution, it is invalid

2. Executive agreements

a. Definition. 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.

b. Executive agreements can be used for any purpose

c. Executive agreements prevail over conflicting state laws, but never

over conflicting federal laws or the Constitution

[See chart on the following page]

12. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 1

TREATIES AND EXECUTIVE AGREEMENTS

CONFLICTS
IS SENATE CONFLICTS WITH CONFLICTS
APPROVAL WITH FEDERAL WITH
REQUIRED? STATE LAW STATUTE CONST.

WHICHEVER
WAS
ADOPTED
TREATY LAST IN TIME CONST.
TREATIES YES CONTROLS CONTROLS CONTROLS

EXECUTIVE FEDERAL
EXECUTIVE AGREEMENT STATUTE CONST.
AGREEMENTS NO CONTROLS CONTROLS CONTROLS
 CONSTITUTIONAL LAW 13.

3. Limits on the recognition power. It is unconstitutional for Congress by

statute to designate the capitol of a foreign country.

4. The President has broad powers as Commander-in-Chief to use American

troops in foreign countries

B. Domestic affairs

1. The appointment and removal power

a. The appointment power

i. The President appoints ambassadors, federal judges and

officers of the United States

ii. Congress may vest the appointment of inferior officers in the

President, the heads of departments or the lower federal
courts

iii. Congress may not give itself or its officers the appointment
power

iv. The President may not make recess appointments during

intrasession recesses that are less than 10 days

b. The removal power. Unless removal is limited by statute, the

President may fire any executive branch office.

i. For Congress to limit removal, it must be an office where

independence from the President is desirable and
ii. Congress cannot prohibit removal, it can limit removal to
where there is good cause
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2. Impeachment and removal. The President, the Vice President, federal

judges and officers of the United States can be impeached and removed
from the office for treason, bribery, or for high crimes and misdemeanors

a. Impeachment does not remove a person from office

b. Impeachment by the House of Representatives requires a majority

vote; conviction in the Senate requires a 2/3 vote

3. The President has absolute immunity to civil suits for money damages for
any actions while in office. However, the President does not have immunity
for actions that occurred prior to taking office.

4. The President has executive privilege for presidential papers and

conversations, but such privilege must yield to other important government
interests

5. The President has the power to pardon those accused or convicted of federal
crimes

IV. Federalism

A. Preemption. The Supremacy Clause of Article VI provides that the Constitution,

and laws and treaties made pursuant to it, are the supreme law of the land.

1. Express preemption
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2. Implied preemption

a. If federal and state laws are mutually exclusive, federal law

preempts state law

b. If state law impedes the achievement of a federal objective, federal

law preempts state law

c. If Congress evidences a clear intent to preempt state law, federal law

preempts state law

3. States may not tax or regulate federal government activity

(Inter-governmental immunity)

B. The dormant commerce clause and the privileges and immunities clause of Article
IV

1. Definitions
a. The dormant commerce clause (Negative implications of the
commerce clause)

b. The privileges and immunities clause of Article IV

c. The privileges or immunities clause of the Fourteenth Amendment

2. Does the state law discriminate against out-of-staters?

3. Analysis if the law does not discriminate

a. The privileges and immunities clause of Article IV does not apply
16. CONSTITUTIONAL LAW

b. If the law burdens interstate commerce, it violates the dormant

commerce clause if its burdens exceed its benefits

4. Analysis if the law discriminates against out-of-staters

a. If the law burdens interstate commerce, it violates the dormant

commerce clause unless it is necessary to achieve an important
government purpose

i. Exception: Congressional approval

ii. Exception: The market participant exception. A state or
local government may prefer its own citizens in receiving
benefits from government programs or in dealing with
government-owned businesses.

b. If the law discriminates against out-of-staters with regard to their

ability to earn their livelihood, it violates the privileges and
immunities clause of Article IV unless it is necessary to achieve an
important government purpose

i) The law must discriminate against out-of-staters.

ii) The discrimination must be with regard to fundamental
rights or important economic activities.
iii) Corporations and aliens cannot use the privileges and
immunities clause.
iv) The discrimination must be necessary to achieve an
important government purpose.

[See chart on the following page]

 CONSTITUTIONAL LAW 17.

CONSTITUTIONAL LAW – CHART 2

DORMANT COMMERCE CLAUSE/PRIVILEGES

AND IMMUNITIES CLAUSE OF ARTICLE IV

DOES THIS STATE OR LOCAL GOVERNMENT’S ACTION

DISCRIMINATE AGAINST OUT-OF-STATERS?

YES NO

Violates the Dormant Violates the Privileges If the government is Privileges and Immunities
Commerce Clause if it and Immunities Clause of burdening interstate Clause of Article IV is
places a burden on Article IV if it discrimi- commerce, balance the inapplicable.
interstate commerce nates against individuals benefit to the state against
unless it is necessary with regard to important the burden on interstate
to achieve an important economic activities or commerce (if the benefit
government purpose. fundamental rights unless exceeds the burden, the
Two exceptions: it is necessary to achieve law is upheld; if the
a) Congressional ap- an important government burden exceeds the
proval of purpose. benefit, the law is struck
discrimination. down).
b) Market participant
exception.
18. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 3

Comparison of the Dormant Commerce Clause and the

Privileges and Immunities Clause of Article IV

Dormant Commerce Clause Privileges and Immunities Clause

• Does not require discrimination • Requires discrimination against out-

against out-of-staters in order to apply of-staters in order to apply

• Requires a burden on interstate

commerce • Requires discrimination with regard to
fundamental rights or important
economic activities
• Corporations and aliens can sue under
it • Corporations and aliens cannot sue
under it
• Exceptions: Congressional approval
and the market participant exception • No exceptions
 CONSTITUTIONAL LAW 19.

Constitutional Law – Problem #7

On January 1, state legislation was enacted that prohibited private employers, under penalty
of civil fines, from hiring any person who had not been a resident of that state for 10 years.
The legislation also required private employers to immediately discharge any employee
who had not resided in the state for a minimum of 10 years. The new statutes additionally
provided that the applicable civil fines would be assessed by the state department of
employment inspectors, at their sole discretion, any time they believed that an employer
had hired or failed to discharge a person not meeting the residency requirements, and that
the civil fines would be imposed on any employer who had hired or failed to discharge such
persons on or after January 1. An employee within the state, who is a nonresident, brought
suit challenging the state statute.
Which of the following arguments would most likely result in a favorable ruling for the
challenger?
A) The statute is an unconstitutional Bill of Attainder.
B) The statute violates the Privileges and Immunities Clause of Article IV.
C) The statute violates the Equal Protection Clause of the Fourteenth Amendment.
D) The statute violates the Ex Post Facto Clause.

Constitutional Law – Problem #8

A state requires all businesses engaged in any form of retail sales to be licensed. The state
legislature amended the statutes governing licensing so that any business seeking a retail
sales license must establish that at least 40% of the items sold will be manufactured or
produced within the state.
Which of the following constitutional provisions will provide the best basis on which to
attack the validity of the state licensing provision requiring a minimum percentage of local
goods?
A) The Privileges or Immunities Clause of the Fourteenth Amendment.
B) The Commerce Clause.
C) The Equal Protection Clause.
D) The Due Process Clause of the Fourteenth Amendment.
20. CONSTITUTIONAL LAW

C. State taxation of interstate commerce

1. States may not use their tax systems to help in-state businesses

2. A state may only tax activities if there is a substantial nexus to the state

3. State taxation of interstate businesses must be fairly apportioned

V. The Structure of the Constitution’s Protection of Individual Liberties

A. Is there government action?

1. The Constitution applies only to government action. Private conduct need

not comply with the Constitution

2. Congress, by statute, may apply constitutional norms to private conduct

a. The Thirteenth Amendment can be used to prohibit private race

discrimination

b. The commerce power can be used to apply constitutional norms to

private conduct
c. Congress cannot use section 5 of the Fourteenth Amendment to
regulate private behavior

3. Exceptions: situations where private conduct must comply with the

Constitution
 CONSTITUTIONAL LAW 21.

a. The public function exception. The Constitution applies if a private

entity is performing a task traditionally, exclusively done by the
government.

b. The entanglement exception. The Constitution applies if the

government affirmatively authorizes, encourages, or facilitates
unconstitutional activity. Key examples:

i) Courts cannot enforce racially restrictive covenants.

ii) There is state action when the government leases premises

to a restaurant that racially discriminates.

iii) There is state action when a state provides books to schools

that racially discriminate.

iv) There is no state action when a private school that is over

99% funded by the government fires a teacher because of her
speech.

v) There is no state action when the NCAA orders the

suspension of a basketball coach at a state university.

vi) There is state action when a private entity regulates

interscholastic sports within a state.

vii) There is not state action when a private club with a liquor
license from the state racially discriminates.

Constitutional Law – Problem #9

A state engaged a private company to run its lottery, but the state maintained close regulation of
the manufacture and distribution of lottery equipment by the private company in order to prevent
frauds. One lottery regulation required the company to submit to the state all applications of
22. CONSTITUTIONAL LAW

persons being considered for employment. The state ran background checks on the prospective
employees to ensure that they did not have a criminal record. A prospective employee that did
not pass the state background check could not be hired by the company.
An employee of the company who had a poor work record and called in sick often was spotted
by her supervisor dancing at a bar one evening after she had called in sick during the day. The
supervisor immediately told the employee that she should consider herself terminated, although
the employee tried to explain that she in fact had been sick that morning but began feeling well
by mid-afternoon.
A state law provided that employees of the state could not be fired from their positions except
for cause. The woman sued in federal court, claiming that she was constitutionally entitled to a
hearing to determine whether her supervisor had cause to fire her.
If the court rules correctly, will it find the employee’s termination to be constitutional?
A) Yes, because no hearing was required since the supervisor witnessed the
employee’s misconduct.
B) Yes, because the employer is free to fire employees at will.
C) No, because it violates the employee’s right to procedural due process.
D) No, because of the state’s regulation of the hiring process

B. The application of the Bill of Rights

1. The Bill of Rights applies directly only to the federal government

2. The Bill of Rights is applied to state and local governments through its
incorporation into the due process clause of the Fourteenth Amendment.
Except:

a. The Third Amendment right to not have a soldier quartered in a

person’s home.

b. The Fifth Amendment right to grand jury indictment in criminal

cases.

c. The Seventh Amendment right to jury trial in civil cases.

d. The Eighth Amendment right against excessive fines

 CONSTITUTIONAL LAW 23.

C. Levels of scrutiny
1. Rational basis test. Under the rational basis test a law is upheld if it is
rationally related to a legitimate government purpose.

2. Intermediate scrutiny. Under intermediate scrutiny a law is upheld if it is

substantially related to an important government purpose.

3. Strict scrutiny. Under strict scrutiny a law is upheld if it is necessary to

achieve a compelling government purpose.
24. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 4

THE LEVELS OF SCRUTINY

LEAST
RESTRICTIVE
ALTERNATIVE BURDEN OF
MEANS? ENDS? ANALYSIS? PROOF

LEGITIMATE
RATIONAL RATIONALLY CONCEIVABLE
BASIS TEST RELATED PURPOSE NO CHALLENGER

IMPORTANT
INTERMEDIATE SUBSTANTIALLY ACTUAL
SCRUTINY RELATED PURPOSE NO GOVERNMENT

COMPELLING
STRICT ACTUAL
SCRUTINY NECESSARY PURPOSE YES GOVERNMENT
 CONSTITUTIONAL LAW 25.

VI. Individual Rights

A. Definitions
1. Procedural due process

2. Substantive due process

3. Equal protection

B. Procedural due process

1. Has there been a deprivation of life, liberty, or property?

a. Definitions

i. A deprivation of liberty occurs if there is the loss of a

significant freedom provided by the Constitution or a statute

ii. A deprivation of property occurs if there is an entitlement

and that entitlement is not fulfilled

b. Government negligence is not sufficient for a deprivation of due

process. Generally, there must be intentional government action or
at least reckless action for liability to exist. However, in emergency
situations, the government is liable under due process only if its
conduct “shocks the conscience.”

c. Generally, the government’s failure to protect people from privately

inflicted harms does not deny due process
26. CONSTITUTIONAL LAW

2. What procedures are required?

a. The test: Balance

i) The importance of the interest to the individual

ii) The ability of additional procedures to increase the accuracy

of the fact-finding

iii) The government’s interests

b. Examples

i) Before welfare benefits are terminated there must be notice

and a hearing
ii) When Social Security disability benefits are terminated,
there need be only a post-termination hearing

iii) Before a school can discipline a student there must be notice

of the charges and an opportunity to explain

iv) Before a parent’s right to custody of a child can be

permanently terminated there must be notice and a hearing

v) Punitive damage awards require instructions to the jury and

judicial review to ensure reasonableness
vi) An American citizen detained as an enemy combatant must
be accorded due process
vii) Except in exigent circumstances, prejudgment attachment or
government seizure of assets require notice and a hearing

[See chart on the following page]

 CONSTITUTIONAL LAW 27.

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), or property (an entitlement to a continued receipt of a benefit)?
YES NO

What procedures must Government need not provide

government supply? procedural due process.

BALANCE:
a) Importance of interest to the
individual;
b) Ability of additional
procedures to increase the
accuracy of the fact finding;
and
c) The government’s interests
28. CONSTITUTIONAL LAW

Constitutional Law – Problem #10

A state statute made it unlawful to sell milk for home consumption in containers less than
one quart in size. Violation of the statute was a misdemeanor, punishable by a $500 fine
and loss of the retail business license. A convenience store within the state specialized in
sales of pints of milk to walk-in lunchtime buyers. During a routine inspection, a state
inspector discovered that the store was selling milk in pints and immediately revoked the
owner’s retail license pursuant to the statute.
What is the owner’s best argument in a suit to defeat the revocation of her retail license?
A) The action of the state agency impaired her contract with wholesale distributors
of pint cartons of milk.
B) The action of the state agency was a denial of equal protection.
C) The action of the state agency was a denial of procedural due process.
D) The action of the state agency was a denial of substantive due process.

C. Economic liberties

1. Only a rational basis test is used for laws affecting economic rights. The
Constitution provides only minimal protection for economic liberties.
Constitutional Law – Problem #11

To protect its citizens from the fluctuating price of energy, a state formed a state-owned
electric company that operated exclusively within the state. The company provided
electricity to residents of the various cities within the state on the basis of a rate schedule
that reflected the historic costs associated with servicing each city. Under the schedule,
electricity rates for citizens of a particular city were 15% higher than the premiums for any
other city in the state. A group of residents from that city brings suit in state court to require
the state electric company to make the premiums equal for everyone.
What is the most likely result?
A) The residents will prevail, unless the state electric company shows a compelling
reason for the discrimination.
 CONSTITUTIONAL LAW 29.

B) The state electric company will prevail, unless the residents show that there is no
rational basis for higher rates.
C) The suit will be dismissed, because the state electric company is organized as a
private business and thus is acting as a market participant.
D) The residents will win because there is a fundamental right to have electricity.

2. The takings clause. The government may take private property for public
use if it provides just compensation.
a. Is there a taking?

i) possessory taking—Government confiscation or

physical occupation of property is a taking.

ii) regulatory taking—Government regulation is a

taking if it leaves no reasonable economically viable
use of the property.

NOTE: Government conditions on development of property must be justified by a

benefit that is roughly proportionate to the burden imposed; 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

NOTE: Temporarily denying an owner use of property is not a taking so long as the
government’s action is reasonable.
b. Is it for public use?

c. Is just compensation paid?

[See chart on the following page]

30. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW –
THE TAKINGS CLAUSE – CHART 6
Government may take private property for public use if it pays just compensation

Is it a taking?

Is there a government Does the government’s

confiscation or physical regulation leave no reasonable
occupation of property? economically viable use of the
property?

If YES to either question there If NO to both questions, there is

is a taking no taking and NO government
compensation is required

Is it for public use? Does the government act

out of a reasonable belief that its action will
benefit the public?

YES NO

Just compensation must be paid. Government must pay Government must return
economic market value of property in hands of owner (gain to the property
the taker is irrelevant)
 CONSTITUTIONAL LAW 31.

3. The contracts clause. No state shall impair the obligations of

contracts.

a. Applies only to state or local interference with existing

contracts

b. State or local interference with private contracts must meet

intermediate scrutiny
— Does the legislation substantially impair a party’s rights
under an existing contract?
— If so, is the law a reasonably and narrowly tailored means
of promoting an important and legitimate public interest?

c. State or local interference with government contracts must

meet strict scrutiny

d. The ex post facto clause does not apply in civil cases.

(An ex post facto law is a law that criminally punishes
conduct that was lawful when it was done or that increases
punishment for a crime after it was committed). Retroactive
civil liability only need meet a rational basis test. (A bill of
attainder is a law that directs the punishment of a specific
person or persons without a trial.)

D. Privacy is a fundamental right protected under substantive due process

1. The right to marry (laws prohibiting same-sex marriage violate the

right to marry)

2. The right to procreate

32. CONSTITUTIONAL LAW

Constitutional Law – Problem #12

A state adopted legislation making it a crime to be the biological parent of more than two
children. The stated purpose of the statute is to preserve the state’s natural resources and
improve the quality of life for the state’s residents. A married couple has just had their third
child. They have been arrested and convicted under the statute.
Which of the following is the strongest argument for voiding the convictions of the couple?
A) The statute is an invalid exercise of the state’s police power because there is no
rational basis for concluding that the challenged statute would further the government’s
stated interests.
B) The statute places an unconstitutional burden on the fundamental privacy
interests of married persons.
C) The statute places too much discretion in state officials to determine who will be
permitted to bear children.
D) The statute denies married persons equal protection of law.

3. The right to custody of one’s children

4. The right to keep the family together

5. The right to control the upbringing of one’s children

6. The right to purchase and use contraceptives

7. The right to abortion

a. Prior to viability, states may not prohibit abortions, but may

regulate abortions so long as they do not create an undue
burden on the ability to obtain abortions.

— Example: a requirement for a 24 hour waiting period for

abortions is not an undue burden.
 CONSTITUTIONAL LAW 33.

— Example: a requirement that abortions be performed by

licensed physicians is not an undue burden
— Example: the prohibition of “partial birth abortions” is
not an undue burden.
— Example: a requirement that physicians have admitting
privileges at a hospital within 30 miles and that a facility
have “ambulatory surgical facilities” is an unconstitutional
undue burden

After viability, states may prohibit abortions unless

necessary to protect the woman’s life or health.

b. The government has no duty to subsidize abortions or

provide abortions in public hospitals

c. Spousal consent and notification laws are unconstitutional

d. Parental notice and consent laws for unmarried minors. 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

8. The right to privacy protects a right to engage in private consensual

homosexual activity

9. The right to refuse medical treatment

i. Competent adults have the right to refuse medical treatment,
even life-saving medical treatment.

ii. A state may require clear and convincing evidence that a

person wanted treatment terminated before it is ended.
34. CONSTITUTIONAL LAW

iii. A state may prevent family members from terminating

treatment for another.

10. There is not a constitutional right to physician-assisted death.

E. The second amendment right to bear arms. “A well-regulated militia, being

necessary to the security of a free state, the right of the people to keep and bear
arms shall not be infringed.”

F. The right to travel

1. Laws that prevent people from moving into a state must meet strict
scrutiny

2. Durational residency requirements must meet strict scrutiny

3. Restrictions on foreign travel need meet only the rational basis test

G. The right to vote

1. Laws that deny some citizens the right to vote must meet strict
scrutiny, but regulations of the electoral process to prevent fraud
only need be on balance desirable
2. One-person - one-vote must be met for all state and local elections.
It is constitutionally permissible for districting to be based on total
population; it does not need to be based on eligible voters

3. At-large elections are constitutional unless there is proof of a

discriminatory purpose
 CONSTITUTIONAL LAW 35.

4. The use of race in drawing election district lines must meet strict
scrutiny

5. Counting uncounted votes without standards in a presidential

election violates equal protection

H. There is no fundamental right to education

[See chart on the following page]

36. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 7

Fundamental Rights
Key Examples

Rights triggering Rights triggering Not a fundamental right

strict scrutiny “Undue burden test” (Only rational basis review) Level of scrutiny unknown

• Right to practice a trade or • Right to engage in

• Right to marry • Right to abortion
profession private consensual
• Right to procreate
homosexual activity
• Right to custody of
• Right to physician-assisted
children • Right to refuse medical
death
• Right to keep family treatments
together
• Right to education
• Right to control raising of • Right to possess firearms
children
• Right to purchase and use
contraceptives
• Right to travel
• Right to vote
• Freedom of speech
(covered under First
Amendment, §VIII)
• Freedom of association
(covered under First
Amendment, §VIII)
• Free exercise of religion
(if the law burdening
religion is not a neutral
law of general
applicability) (covered
under First
Amendment, §VIII)
 CONSTITUTIONAL LAW 37.

VII. Equal Protection

A. An approach to equal protection questions

1. What is the classification?

2. What level of scrutiny should be applied?

3. Does this law meet the level of scrutiny?

B. Constitutional provisions concerning equal protection

1. The equal protection clause of the Fourteenth Amendment applies only to

state and local governments

2. Equal protection is applied to the federal government through the due

process clause of the Fifth Amendment

C. Classifications based on race and national origin

1. Strict scrutiny is used

2. How is the existence of a racial classification proven?

a. The classification exists on the face of the law

b. If the law is facially neutral, proving a racial classification requires

demonstrating both discriminatory impact and discriminatory intent
Example: discriminatory use of peremptory challenges based on
race denies equal protection
38. CONSTITUTIONAL LAW

3. How should racial classifications benefiting minorities be treated?

a. Strict scrutiny is applied

b. Numerical set-asides require clear proof of past discrimination

c. Educational institutions may use race as one factor in admissions

decisions to help minorities. They must show, however, that there
is no race neutral alternative which could achieve diversity.
Additionally, educational institutions may not add points to
applicants’ admissions scores based on race.

d. Public school systems may not use race as a factor in assigning

students to schools unless strict scrutiny is met.

D. Gender classifications

1. Intermediate scrutiny is used

Constitutional Law – Problem #13

A state law permitted young men and women to apply for a license to operate a motorcycle
when they reach the age of 18. Recently, however, because of a marked increase in
motorcycle accidents involving teenage girls, the state legislature raised the age for women
who apply for such a license to age 21, while leaving the age for men who apply
unchanged.
 CONSTITUTIONAL LAW 39.

A 19-year-old woman applied for a motorcycle license in the state but was denied because
of her age. She subsequently sues in federal court, alleging that the statute
unconstitutionally discriminates against women.
Which of the following statements best reflects the burden of persuasion that the court will
apply in the woman’s suit?
A) The state must show that the law is substantially related to a legitimate
government interest.
B) The state must show that the law is necessary to achieve a compelling or
overriding government purpose.
C) The woman must show that the law is rationally related to a legitimate
government interest.
D) The state must show that the law is substantially related to an important
government purpose.

2. How is the existence of a gender classification proven?

a. The classification exists on the face of the law

b. If the law is facially neutral, proving a gender classification requires

demonstrating both discriminatory impact and discriminatory intent

Example: discriminatory use of peremptory challenges

based on gender denies equal protection
3. How should gender classifications benefiting women be treated?

a. Gender classifications benefiting women that are based on role

stereotypes will not be allowed

b. Gender classifications that are designed to remedy past

discrimination and differences in opportunity will be allowed
40. CONSTITUTIONAL LAW

E. Alienage classifications

1. Generally, strict scrutiny is used

2. Only a rational basis test is used for alienage classifications that concern
self-government and the democratic process

3. Only a rational basis test is used for Congressional discrimination against

aliens

4. It appears that intermediate scrutiny is used for discrimination against

undocumented alien children

Constitutional Law – Problem #14

A state statute provides that no alien may own a restaurant within the state and that it is unlawful
for anyone to give, sell, or otherwise convey a restaurant to an alien. A citizen of Canada who
legally resides in the state has entered into a contract to buy a restaurant located within the state
from a restaurant owner.
If the buyer and the seller join in a declaratory judgment action to test the state statute in a
federal court, which of the following is true?
A) The case may not be heard because the buyer does not have standing.
B) The burden of proof is on the buyer and seller to show that the statute is
rationally related to a legitimate state interest.
C) The burden of proof is on the state to show that the statute is necessary to
achieve a compelling state interest.
D) The buyer and seller will lose because there is no right to own a restaurant.
 CONSTITUTIONAL LAW 41.

F. Discrimination against non-marital children

1. Intermediate scrutiny is used

2. Laws that deny a benefit to all non-marital children, but grant it to all marital
children are unconstitutional

G. Rational basis review is used for all other types of discrimination under the
Constitution

1. Age discrimination

2. Disability discrimination

3. Wealth discrimination

4. Economic regulations

5. Sexual orientation discrimination

[See chart on the following page]

42. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 8

EQUAL PROTECTION

EQUAL PROTECTION ISSUES CAN BE DIVIDED INTO 3 QUESTIONS:

1 - WHAT IS THE CLASSIFICATION?

Two ways to determine the existence of classifications:
a) The classification is on the face of the law; or
b) If the law is facially neutral, there is both a discriminatory intent for the law and
a discriminatory impact to the law.

2 - WHAT IS THE LEVEL OF SCRUTINY?

Strict Scrutiny Intermediate Scrutiny Rational Basis Test

Law must be necessary to Law must be substantially Law must be rationally

achieve a compelling related to an important related to a legitimate
government purpose. government purpose. government interest.

• Race • Gender • Alienage classifications

• National origin • Illegitimacy related to self government
• Alienage - generally • Undocumented alien and the democratic process
children • Congressional regulation
of aliens
• Age
• Disability
• Wealth
• All other classifications

3 - DOES THIS LAW MEET THE LEVEL OF SCRUTINY?

 CONSTITUTIONAL LAW 43.

VIII. The First Amendment

A. Free speech methodology

1. Content-based v. content-neutral restrictions

a. Content-based restrictions on speech generally must meet strict

scrutiny. Two types of content-based laws:
— subject matter restrictions (application of the law depends
on the topic of the message)

— viewpoint restrictions (application of the law depends on

the ideology of the message)

b. Content-neutral laws burdening speech generally need only meet

intermediate scrutiny

2. Prior restraints

a. Court orders suppressing speech must meet strict scrutiny.

Procedurally proper court orders must be complied with until they
are vacated or overturned. A person who violates a court order is
barred from later challenging it.

b. 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. Licensing schemes must
contain procedural safeguards such as prompt determination of
requests for licenses and judicial review

Constitutional Law – Problem #15

A defendant stood accused of murdering a family of six in a small town. The judge,
concerned not only about prejudice to the defendant’s right to a fair trial but also about
44. CONSTITUTIONAL LAW

media attention and public opinion in such a small locale, issued an order forbidding the
press from attending the trial or publishing any details of the testimony at trial.
If a local newspaper sues in federal court to have the judge’s gag order overturned, will the
newspaper prevail?
A) Yes, because the judge’s order is effectively taking property without just
compensation.
B) Yes, because the newspaper has a Sixth Amendment right to a public trial.
C) Yes, because the judge has attempted to impose a prior restraint in violation of
the First Amendment.
D) No, because the judge honestly believed that publicity would be prejudicial and
would impair the defendant’s constitutional right to a fair trial.
 CONSTITUTIONAL LAW 45.

3. Vagueness and overbreadth

a. Vagueness. A law is unconstitutionally vague if a reasonable person

cannot tell what speech is prohibited and what is allowed

b. Overbreadth. A law is unconstitutionally overbroad if it regulates

substantially more speech than the constitution allows to be
regulated.

c. Fighting words laws are unconstitutionally vague and overbroad

4. Symbolic speech. The government can regulate conduct that communicates

if it has an important interest unrelated to suppression of the message and if
the impact on communication is no greater than necessary to achieve the
government’s purpose. Examples:
--flag burning is constitutionally protected speech
--draft card burning is not constitutionally protected speech
--local governments may prohibit nude dancing
--burning a cross is protected speech unless it is done with the intent to
threaten
--contribution limits in election campaigns are generally constitutional, but
expenditure limits are unconstitutional

5. Anonymous speech is protected

6. Speech by the government cannot be challenged as violating the First

Amendment.

B. What speech is unprotected or less protected by the First Amendment?

1. Incitement of illegal activity. 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.

2. Obscenity and sexually-oriented speech

46. CONSTITUTIONAL LAW

a. The test

i. The material must appeal to the prurient interest

ii. The material must be patently offensive under the law

prohibiting obscenity

iii. Taken as a whole, the material must lack serious redeeming

artistic, literary, political or scientific value

b. The government may use zoning ordinances to regulate the location

of adult bookstores and movie theaters

c. Child pornography may be completely banned, even if not obscene

(To be child pornography, children must be used in production of
the material).

d. The government may not punish private possession of obscene

materials; but the government may punish private possession of
child pornography

e. The government may seize the assets of businesses convicted of

violating obscenity laws

f. Profane and indecent speech is generally protected by the First

Amendment

i) Exception: over the broadcast media

ii) Exception: in schools

 CONSTITUTIONAL LAW 47.

3. Commercial speech

a. Advertising for illegal activity, and false and deceptive ads are not
protected by the First Amendment

b. True commercial speech that inherently risks deception can be

prohibited

i. The government may prevent professionals from advertising

or practicing under a trade name

ii. The government may prohibit attorney, in-person

solicitation of clients for profit

iii. The government may not prohibit accountants from in-

person solicitation of clients for profit

c. Other commercial speech can be regulated if intermediate scrutiny

is met

d. Government regulation of commercial speech must be narrowly

tailored, but it does not need to be the least restrictive alternative.

Constitutional Law – Problem #16

Congress passed a law forbidding the United States mails to be used for the distribution of
unsolicited advertising for contraceptives. This led to litigation in the federal courts
regarding the constitutionality of the statute.
What is the best argument against the constitutionality of the statute?
A) The statute offends certain rights that give rise to a constitutional right of privacy.
B) The statute constitutes a taking without due process of law.
48. CONSTITUTIONAL LAW

C) The statute improperly infringes on the commercial speech protection of the First
Amendment.
D) The statute unduly burdens interstate commerce.

4. Defamation and intentional infliction of emotional distress

a. If the plaintiff is a public official or running for public office, the

plaintiff can recover for defamation by proving falsity of the
statement and actual malice

b. If the plaintiff is a “public figure’” the plaintiff can recover for

defamation by proving falsity of the statement and actual malice

c. If the plaintiff is a “private figure” and the matter is of “public

concern,” that state may allow the plaintiff to recover for defamation
by proving falsity and negligence by the defendant. However, the
plaintiff may recover presumed or punitive damages only by
showing actual malice

d. If the plaintiff is a “private figure” and the matter is not of “public

concern,” the plaintiff can recover presumed or punitive damages
without showing actual malice

e. Liability for intentional infliction of emotional distress for

defamatory speech must meet the defamation standards and cannot
exist for speech otherwise protected by the First Amendment

[See chart on the following page]

 CONSTITUTIONAL LAW 49.

CONSTITUTIONAL LAW – CHART 9

DEFAMATION

LIABILITY BURDEN OF
PLAINTIFF STANDARD DAMAGES PROOF

Compensatory Plaintiff Must Prove

Public Official Actual Malice Presumed/Punitive Falsity

Compensatory Plaintiff Must Prove

Public Figure Actual Malice Presumed/Punitive Falsity

Compensatory for
Actual Injury;
Private Figure, Presumed or Punitive
Matter of Public Negligence and Damages Require Plaintiff Must Prove
Concern Actual Injury Actual Malice Falsity

Compensatory for
Actual Injury;
Presumed or Punitive
Private Figure, Damages Do Not Unclear -
Matter of Private Unclear - Require Actual Burden on Defendant
Concern Negligence Malice to Prove Truth
50. CONSTITUTIONAL LAW

5. Privacy

a. The government may not create liability for the truthful reporting of
information that was lawfully obtained from the government

b. 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

c. The government may limit its dissemination of information to

protect privacy

6. Speech by government employees on the job in the performance of their

duties is not protected by the First Amendment.

7. Other government restrictions based on the content of speech must meet

strict scrutiny. (Example: restrictions on violent speech must meet strict
scrutiny).

C. What places are available for speech?

1. Public forums—government properties that the government is

constitutionally required to make available for speech.

a. Regulations must be subject matter and viewpoint neutral, or if not,

strict scrutiny must be met.
b. Regulations must be a time, place, or manner regulation that serves
an important government purpose and leaves open adequate
alternative places for communication
 CONSTITUTIONAL LAW 51.

c. Government regulation of public forums need not use the least

restrictive alternative, but must be narrowly tailored

d. City officials cannot have discretion to set permit fees for public
demonstrations

2. Designated public forums—government properties that the government

could close to speech, but chooses to open to speech. The same rules apply
as for public forums.

3. Limited public forums – government properties that are limited to certain

groups or dedicated to the discussion of only some subjects. The
government can regulate speech in limited public forums so long as the
regulation is reasonable and viewpoint neutral.

4. Non-public forums—government properties that the government

constitutionally can and does close to speech. The government can regulate
speech in non-public forums so long as the regulation is reasonable and
viewpoint neutral.

5. There is no First Amendment right of access to private property for speech

purposes

[See chart on the following page]

52. CONSTITUTIONAL LAW

CONSTITUTIONAL LAW – CHART 10

PLACES AVAILABLE FOR SPEECH

SUBJECT METHOD OF
MATTER VIEWPOINT REGULATION INTEREST
NEUTRAL? NEUTRAL? ALLOWED? REQUIRED?

PUBLIC FORUMS
(e.g., sidewalks,
parks) TIME, PLACE,
YES YES OR MANNER IMPORTANT

DESIGNATED
PUBLIC FORUMS
(i.e., non-public
forums that the
government opens
to speech)
TIME, PLACE,
YES YES OR MANNER IMPORTANT

LIMITED
PUBLIC FORUMS
(i.e., government
property that the
government opens
to certain groups or
discussion of some
subjects)

NO YES REASONABLE LEGITIMATE

NON-PUBLIC
FORUMS
(e.g., military
bases, airports) NO YES REASONABLE LEGITIMATE

PRIVATE NO FIRST AMENDMENT RIGHT TO USE

PROPERTY PRIVATE PROPERTY FOR SPEECH PURPOSES
 CONSTITUTIONAL LAW 53.

Constitutional Law – Problem #17

A state statute prohibits speechmaking and loud public gatherings within 250 feet of the
state’s legislative chamber when the legislature is in session, but permits silent picketing at
any time, as long as the picketing does not interfere with pedestrians or traffic. The nearest
place to the legislative chamber where speeches could be made during a session is a large
public park directly opposite the chamber. During a controversial debate on a proposed bill
to ban abortions, a man in the park began voicing his support of the ban. As the man spoke,
a crowd of about 250 gathered. When fervor built, the man urged the crowd to cross the
street with him to the steps of the legislative chamber to make their voices heard within the
legislature. When the chanting crowd reached the front of the chamber, the state police
dispersed the crowd and arrested the man, who was subsequently charged with violating the
statute.
If the man challenges the constitutionality of the statute under which he was charged, will a
court most likely find the statute constitutional?
A) Yes, on its face and as applied to the man.
B) Yes, on its face, but not as applied to the man.
C) No, on its face, because a state’s citizens have a right to take their complaints to
their state legislature.
D) No, on its face, because it permits silent picketing while prohibiting other picketing.
54. CONSTITUTIONAL LAW

D. Freedom of association

1. Laws that prohibit or punish group membership must meet strict scrutiny.
To punish membership in a group it must be proven that the person:

a. actively affiliated with the group;

b. knowing of its illegal activities; and
c. with the specific intent of furthering those illegal activities.

2. Laws that require disclosure of group membership, where such disclosure

would chill association, must meet strict scrutiny

3. Laws that prohibit a group from discriminating are constitutional unless

they interfere with intimate association or expressive activity

E. Freedom of religion

1. The free exercise clause

a. The free exercise clause cannot be used to challenge a neutral law

of general applicability.
 CONSTITUTIONAL LAW 55.

Constitutional Law – Problem #18

A man who belonged to an ancient religion whose rituals require the use of bald eagle
feathers traveled to an area where bald eagles were known to roost. After searching the
area, he found a fallen eagle feather and returned home. A few weeks later, the man showed
the feather to an acquaintance, who happened to be a state park ranger, and explained how
the feather was obtained. The ranger informed the man that a state anti-poaching law makes
any possession of a bald eagle feather without a special permit a crime. The ranger then
cited the man for possession of the feather and confiscated it.
At the man’s trial for violating the state bald eagle feather possession statute, which of the
following constitutional arguments is most appropriate for the prosecution to make?
A) The statute is a neutral law that only incidentally burdens the man’s rights under
the First Amendment.
B) The Free Exercise Clause applies only to belief and not to conduct.
C) The government has a substantial and important interest in protecting bald eagles
and there is no other feasible way to achieve the legislative purpose.
D) Making an exception for the man on religious grounds would violate the
Establishment Clause of the First Amendment.
56. CONSTITUTIONAL LAW

b. The government may not deny benefits to individuals who quit their
jobs for religious reasons.

c. The government may not hold a religious institution liable for the
choices it makes as to who will be its ministers.
d. The denial of benefits to a religious school that are provided to a
secular private school must meet strict scrutiny.

2. The establishment clause

a. The test

i. there must be a secular purpose for the law

ii. the effect must be neither to advance nor inhibit religion

iii. there must not be excessive entanglement with religion

b. The government cannot discriminate against religious speech or

among religions unless strict scrutiny is met.

c. Government sponsored religious activity in public schools is

unconstitutional. But religious student and community groups must
have the same access to school facilities as non-religious groups.

d. The government may give assistance to parochial schools, so long

as it is not used for religious instruction. The government may
provide parents vouchers which they use in parochial schools.
 CONSTITUTIONAL LAW 57.

CONSTITUTIONAL LAW – CHART 11

An approach to constitutional law questions
Ask: Who is the actor in the question?

President or Federal Private

executive branch State/local (non-government
Congress Federal Courts government actor)

The issue is either or

The issue is either or both The issue is: The issue is: The issues are:
both
1) Has the President/
1) Does Congress Executive branch Does the federal court Has the state/local 1) Is there state
have the authority exceeded the scope of have the authority to government violated a action?
to act? executive powers? hear limit on its power? (outline § V)
(outline, esp. § II) (outline, esp. § III) the case? (outline, esp. §§ IV,
(outline, esp. § I) VI, VII, VIII) and, if so,
and/or and/or
2) Does it violate the
2) Has Congress 2) Has the President/ Constitution?
violated a limit on Executive branch (outline, esp. §§ VI,
its power? violated a limit on VII, VIII)
(outline, esp.§§ VI, government power?
VII, VIII) (outline, esp. §§ VI,
VII, VIII)