CONSTITUTIONAL LAW

PROFESSOR ERWIN CHEMERINSKY

Copyright © 2014 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

Article III defines the powers of the federal courts

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

Copyright © 2014 by BARBRI, Inc.

2. CONSTITUTIONAL LAW

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.

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 in-
dividual 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

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

pre-enforcement review of a statute or regulation.
 CONSTITUTIONAL LAW 3.

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

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

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

c. Exception: class action suits

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”

(Provision in Article IV, § 4, that the U.S. shall guarantee to each a
republican form of government)

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

c. Challenges to the impeachment and removal process

d. Challenges to partisan gerrymandering.

(2004 Supreme Court decision that challenges to partisan
gerrymanders are not justiciable)
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B. Supreme Court review

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

Appeal: Mandatory Supreme Court review when requested
Certiorari: Discretionary review

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

(A few federal statutes create the unusual procedure of a 3 judge
district court. Appellate review is directly in the SCT and by
appeal

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
 CONSTITUTIONAL LAW 5.

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

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 (whether citizen is from the state as a
different state; whether suit is for money or an injunction)

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 (States may consent to be sued, but
consent must be explicit)

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.
6. CONSTITUTIONAL LAW

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

There is no general federal police power. Congress has the police power
When acting for the military, Indian reservations, federal lands and
Territories, and for the District of Columbia.,

2. The necessary and proper clause Congress may take any action not
prohibited by the Constitution to carry out its powers
 CONSTITUTIONAL LAW 7.

3. The taxing/spending power and the commerce power

a. Congress may tax and spend for the general welfare
Congress may enact any tax to raise revenue on any program to
spend it that it believes will serve the general welfare
b. The Commerce Power
i) Congress may regulate the channels of interstate commerce
(Such as roads, waterways, the internet)

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.
8. 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 to

executive agencies or even to the judiciary
No delegation has been invalidated since 1937

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 and sign or
veto). The President must sign or veto the bill in its entirety.
Legislative veto is Congress attempting to overturn an Executive action
Without bicameral or presentment
Line item veto is President attempting to veto part of a bill while signing
the rest into law

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

 CONSTITUTIONAL LAW 9.

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.
10. CONSTITUTIONAL LAW

b. Executive agreements can be used for any purpose

Anything that can be done by a treaty can be done by an executive
agreement
c. Executive agreements prevail over conflicting state laws, but never
over conflicting federal laws or the Constitution

[See chart on the following page]

 CONSTITUTIONAL LAW 11.

CONSTITUTIONAL LAW CHART 1

TREATIES AND EXECUTIVE AGREEMENTS

CONFLICTS
IS SENATE CONFLICTS WITH CONFLICTS
APPROVAL WITH STATE FEDERAL WITH
REQUIRED? 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
12. CONSTITUTIONAL LAW

3. 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
Senate must confirm, but President nominates
ii. Congress may vest the appointment of inferior officers in
the President, the heads of departments or the lower federal
courts
Congress may vest the appointment of the special
prosecution
In the lower federal courts
iii. Congress may not give itself or its officers the appointment
power

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
 CONSTITUTIONAL LAW 13.

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. Exception: No pardon if there has been an impeachment
Tips: The President can pardon only for federal crimes
The President can pardon only for criminal, not civil offenses
14. CONSTITUTIONAL LAW

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 If a federal statute expressly says that federal law

is exclusive in an area, state and local laws are preempted

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

 CONSTITUTIONAL LAW 15.

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)
State laws that place an undue burden on interstate commerce are
unconstitutional
b. The privileges and immunities clause of Article IV - State laws
that deny out-of-staters privileges and immunities accorded to
in-staters violate the provision
c. The privileges or immunities clause of the Fourteenth Amendment
It was meant to protect citizens from their own state, but is used
only for the right to travel

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

Key inquiry in determining likely result

3. Analysis if the law does not discriminate

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

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

commerce clause if its burdens exceed its benefits
16. CONSTITUTIONAL LAW

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 and If the government is Privileges and Immunities
Commerce Clause if it 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 unless nates against individuals benefit to the state against
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 approval an important government burden exceeds the
of discrimination. purpose. benefit, the law is struck
b) Market participant down).
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

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

 Requires a burden on interstate  Requires discrimination with

commerce regard to fundamental rights or
important economic activities

 Corporations and aliens can sue  Corporations and aliens cannot sue
under it under it

 Exceptions: Congressional  No exceptions

approval and the market
participant exception
 CONSTITUTIONAL LAW 19.

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

D. Full faith and credit. Courts in one state must give full faith and credit to j
judgments of courts in another state, so long as:

1. The court that rendered the judgment had jurisdiction over the parties and
the subject matter.

2. The judgment was on the merits.

3. The judgment is final.

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
20. CONSTITUTIONAL LAW

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

discrimination
Thirteenth Amendment gives Congress broad power to prohibit
private
Race discrimination. But the 13th amendment, itself, only prohibts
slavery
b. The commerce power can be used to apply constitutional norms to
private conduct
For example, the 1964 Civil Rights Act, that prohibits race and
Discrimination by hotels and restaurants was adopted under the
Commerce power
d. Congress cannot use section 5 of the Fourteenth Amendment to
regulate private behavior
This power can be used only to regulate state and local
governments

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

Constitution

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

private entity is performing a task traditionally, exclusively done
by the government.
Examples include running a town or holding elections

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.
 CONSTITUTIONAL LAW 21.

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.

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:
22. CONSTITUTIONAL LAW

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

C. Levels of scrutiny

1. Rational basis test -

Rationally related to a legitimate government purpose.
Challenger has the burden of proof

2. Intermediate scrutiny
Substantially elated to an important government purpose.
Government has the burden of proof

3. Strict scrutiny
Necessary to achieve a compelling government purpose.
Government has the burden of proof

[See chart on the following page]

 CONSTITUTIONAL LAW 23.

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
24. CONSTITUTIONAL LAW

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
Example: Except in an emergency, institutionalizing an adult must
be preceded by notice and a hearing
Example: When a parent institutionalizes a child there need be
only a screening by a neutral fact finder

Example: Harm to reputation, by itself, is not a loss of liberty

Example: Prisoners rarely have liberty interests
ii. A deprivation of property occurs if there is an entitlement
and that entitlement is not fulfilled
A person has a property interest if there is a reasonable
expectation to continued receipt of a benefit
 CONSTITUTIONAL LAW 25.

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
Only if the government literally creates the danger must it provide
protection

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 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
26. CONSTITUTIONAL LAW

iii) When a school disciplines 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 is permanently
terminated, there must be notice and a hearing
v) Punitive damages require instructions to the jury and judicial
review to ensure reasonableness
vi) A non-citizen held as an enemy combatant must be accorded
due process.
vii) Except in exigent circumstances, prejudgment attachment or
government seizure of assets must be preceded by 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 interest
in administrative efficiency
28. CONSTITUTIONAL LAW

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

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.
 CONSTITUTIONAL LAW 29.

b. Is it for public use?

It is for public use so long as the government acts out of a
Reasonable belief that the taking will benefit the public
c. Is just compensation paid?
Just compensation is measured in terms of the loss to the
owner. The gain to the taker is irrelevant

[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 If NO to both questions, there

question there is a is no taking and NO
taking 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 return the

Government must pay economic market property
value of property in hands of owner (gain
to 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 fact law is a aw 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

2. The right to procreate

32. CONSTITUTIONAL 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.
--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.

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

 CONSTITUTIONAL LAW 33.

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
But the Court did not specify the level of scrutiny

9. The right to refuse medical treatment

i. Competent adults have the right to refuse medical

treatment, even life-saving medical treatment. The court
did not specify
The level of scrutiny
ii. A state may require clear and convincing evidence that a
person wanted treatment terminated before it is ended.

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.

The court has held that individuals have a right to have weapons for self-
defense, but it has not specified the level of scrutiny to be used.

F. The right to travel

34. CONSTITUTIONAL LAW

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

2. One-person - one-vote must be met for all state and local elections

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

discriminatory purpose

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]

 CONSTITUTIONAL LAW 35.

CONSTITUTIONAL LAW -- CHART 7

Fundamental Rights
Key Examples

Rights triggering Rights triggering Not a fundamental Level of scrutiny

strict scrutiny “Undue burden test” right unknown
(Only rational basis
· Right to marry · Right to abortion review)
· Right to procreate . Right to engage
· Right to custody of · Right to practice a in private
children trade or profession consensual
homosexual
· Right to keep family · Right to physician- activity
together assisted death
· Right to control . Right to refuse
raising of children · Right to education medical treatments
· Right to purchase
and use . Right to possess
contraceptives firearms
· Right to travel
(covered under Equal
Protection, §VII-H)
· Right to vote
(covered under Equal
Protection, §VII-H)
· 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)
36. CONSTITUTIONAL LAW

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
 CONSTITUTIONAL LAW 37.

Example: discriminatory use of peremptory challenges based on

race denies equal protection

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

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 dis-
criminatory intent
38. CONSTITUTIONAL LAW

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

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
The government may discriminate against aliens with regard to voting,
Serving on a jury, being a teacher, a police officer, or a probation officer

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

F. Discrimination against non-marital children

 CONSTITUTIONAL LAW 39.

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]

40. 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 and
Alienage - generally Undocumented alien the democratic process
Travel (but not foreign children Congressional regulation of
travel) aliens
Voting Age
Handicap
Wealth
All other classifications

3 - DOES THIS LAW MEET THE LEVEL OF SCRUTINY?

 CONSTITUTIONAL LAW 41.

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 type of content based laws:
--subject matter restrictions (application of the law depends
on the topic of the message)

laws that regulate speech based on the topic

--viewpoint restrictions (application of the law depends on

the ideology of the message)

laws that regulate speech based on its ideology

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
42. CONSTITUTIONAL LAW

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
Example: flag burning is constitutionally protected
Example: draft card burning is not protected
Example: nude dancing is not protected
Example: the government may punish cross-burning only if there is the
intent to intimidate or threaten
Example: Government may limit contributions in election campaigns, but
not expenditures
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.
 CONSTITUTIONAL LAW 43.

2. Obscenity and sexually-oriented speech

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).

“Child pornography” requires children to be used in its production

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 (but not cable or the

internet where the government has less power to regulate)
44. CONSTITUTIONAL LAW

ii) Exception: in schools

3. Commercial speech

a. Advertising for illegality, 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.

4. Defamation

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
 CONSTITUTIONAL LAW 45.

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]

46. CONSTITUTIONAL LAW

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

Compensatory for
Actual Injury; Unclear -
Presumed or Burden on
Private Figure, Punitive Damages Defendant to Prove
Matter of Private Unclear - Do Not Require Truth
Concern Negligence Actual Malice
 CONSTITUTIONAL LAW 47.

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 Generally, the government has no duty under the
1st amendment to make its proceedings and papers open to the
public.
The only exception is that there is a first amendment right to attend
Criminal trials and most pretrial and most pretrial proceedings in
Criminal cases

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?

48. CONSTITUTIONAL LAW

1. Public forums—government properties that the government is

constitutionally required to make available for speech.
Sidewalks and parks are classic example

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

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

restrictive alternative

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.

Example: If a school opens its facilities evenings and weekends

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.
 CONSTITUTIONAL LAW 49.

3. 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.
Examples: Military Buses
- Areas outside prisons and jails
- Advertising space on city buses
- Sidewalks on post office property
- Airports (though government cannot bar distribution of literature)

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

purposes

[See chart on the following page]

 50. 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, TIME, PLACE, OR
parks) YES YES MANNER IMPORTANT

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

LIMITED PUBLIC
FORUMS
(i.e., government
property that the
government opens
to certain groups
on 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 51.

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.

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.
52. CONSTITUTIONAL LAW

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 53.

CONSTITUTIONAL LAW CHART 11

An approach to constitutional law questions

Ask: Who is the actor in the question?

Congress President or Federal Courts State/local Private

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