MBE CONSTITUTIONAL LAW

I. THE NATURE OF JUDICIAL REVIEW

A. Organization of the Courts in the Federal System (OL I. A.)
1. Federal Court System
a. Scope of Federal Judicial Power
(1) Article III, section 2, limits the jurisdiction of the federal courts to:
(a) Law-ased Federal Jurisdiction
1) Cases arising under Constitution law
2) Admiralt and maritime cases
(!) Party-ased Federal Jurisdiction
1) ".#. go$ernment
2) #tate $. #tate
%) #tate $. Citi&ens of other #tates
') Citi&ens from different states ( di$ersit jurisdiction, with )*+,,,, in contro$ers
+) -oreign di.lomats
!. /he 11th Amendment: pri!ate indi!iduals cannot sue states for money damages in any court. #tate
so$ereign immunit !ars suits against states in state courts or federal agencies.
(1) 01ce.tions to the a..lication of the 11th Amendment:
(a) -ederal suits !rought ! one state against another state (or suits !rought ! the federal
go$ernment against a state)
(!) #u!di$isions of a state i.e. cities, towns, and counties. 2owe$er note that suits against state officers
are allowed as long as the state treasur will not !e .aing retroacti$e damages.
(c) 3ost suits for injunctions i.e. .ri$ate citi&en ma sue to enjoin a state official from acting in $iolation
of .laintiff4s federal constitutional right
(d) A state ma consent to suit in federal court if it clearl wai$es its 11
th
amendment immunit
e1.ressl and une5ui$ocall
(e) 0nforcement .owers: Congress can authori&e .ri$ate suits ! indi$iduals to com.ensate for state
$iolations of those amendments
"#A$PL"% #u..ose that Congress enacts a law that sas that citi&ens can sue a state for
mone damages for torts committed ! state officials. /his cause of action is not created
.ursuant to 0nforcement 6owers !ecause no issue of constitutional $iolation ! a state. /his
cause of action is !loc7ed ! state so$ereign immunit and the 11th Amendment.
"#A$PL"% #u..ose Congress enacts a law that sas .ri$ate .arties can sue states for
mone damages for racial discrimination. /his is something that the 1'th Amendment for!ids
and we are an enforcing this Amendment8 therefore, it is not !loc7ed ! the 11th Amendment.
2. Other Limitations on Jurisdiction of Federal Courts
a. Case or Contro!ersy
(1) Article III, section 2, limits the jurisdiction of federal courts to 9cases: and 9contro$ersies.:
3nemonic: ;A36# (to get into federal court, one must go u. the ;A36#).
!. Standing
(1) Article III re5uires a .erson litigating a constitutional 5uestion to show:
(a) &n'ury in Fact
1) Actual or imminent .ersonal injur
2) 01am.les of Indi$iduals who lac7 standing:
a) a legislator
!) .ri$ate indi$idual
c) /a1.aer
i) "#C"P(&O)% ta1.aers ha$e standing to sue on esta!lishment clause grounds !ut
cannot challenge e1ecuti$e action ! 6resident or <o$ernor, ad$ancing religion.
(!) Causation
1) =4s conduct must ha$e caused 6laintiff4s injur
(c) *edressa+ility
1) /he litigation must remed the injur or !enefit the .laintiff
(2) Specialized Pro+lems of Standing
(a) /hird 6arties: )O (,&*- PA*(. S(A)-&)/
1) /he #u.reme Court has .ermitted a .art to raise the constitutional rights of a third .art, if
the following two conditions are satisfied:
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a) #.ecial relationshi. so that interest of .laintiff are connected to third .art4s
constitutional rights, A?=
!) Inca.acit
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)""- (O " ASOL0(".
2) An organi&ation has standing to assert the claims of its mem!ers, e$en if the association has
not suffered an injur itself, if:
a) 3em!er standing
!) 6ur.ose of the association
c) 3em!er .artici.ation not re5uired
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,.PO(,"(&CAL
/he mem!ers of the ?ational 6olitical @oo7 Clu! (?6@C) .urchase !oo7s of their choosing relating to contro$ersial .olitical
issues at a discount .rice from ?6@C. /he =e.artment of 2omeland #ecurit has demanded that the ?6@C turn o$er its
sales records, including which !oo7s ha$e !een .urchased ! each mem!er. ?6@C sues to .re$ent the release of
information, claiming free association of its mem!ers. Aill the clu! ha$e standingB
Do the members have states !es" the# $o be%a&se the# 'ose (r)va%# r)*ht. Is
the or*a+),at)o+-s (&r(ose re'ate$ to )+terest be)+* asserte$ be%a&se the#
.a+t (eo('e to rea$ these boo/s. F)+a''#" there )s +o re0&)reme+t 1or member
(art)%)(at)o+ be%a&se threate+e$ )+2&r# )s the same 1or ever#o+e. A+$ the
same reme$# .)'' re$ress the)r %'a)ms.
c. *ipeness
(1) =efinition: A lawsuit filed !efore an actual injur.
%. )o Ad!isory Opinions
a. $ootness
(1) =efinition: A lawsuit is filed too late. Aill the federal decision do anthingB ?o redressa!ilt.
(a) "#C"P(&O)% Cases that are ca.a!le of re.etition et e$ading re$iew.
"#A$PL"% Ahere there is a restriction on a .regnant woman4s right to see7 an a!ortion !ut
there is no wa the case can !e decided while she is still .regnant. /his is ca.a!le of
re.etition !ut the court will ne$er hear it so it e$ades re$iew. #o we ma7e an e1ce.tion.
(!) "#C"P(&O)% $oluntar cessation and class action suits.
If the answer is 9ri.eness: or 9mootness,: then the 5uestion will most li7el deal with declarator judgment.
!. Political 7uestions
(1) -ederal courts cannot hear cases in$ol$ing .olitical 5uestions. A .olitical 5uestion is a matter assigned to
another !ranch ! the constitution or inca.a!le of a judicial answer. /he #u.reme Court set forth factors
to determine if the .olitical 5uestion doctrine a..lies. /hese are the two most im.ortant factors:
(a) /e1tual commitment
"#A$PL"% /he constitution sas the #enate shall ha$e the sole .ower to tr im.eachments.
/his is not a matter for the courts.
(!) ?o standards
"#A$PL"% /he court states it will not re$iew the wa a state draws its electoral districts where
the .laintiff argues the were drawn in a manner to fa$or one .olitical .art o$er another.
"#A$PL"% If the .laintiff argues that the electoral districts were drawn in a manner to fa$or a
.articular race, the court will hear the case.
-oreign affairs is a fre5uentl tested .olitical 5uestion to.ic. Other to.ics include the re.u!lican form of
go$ernment clause, challenges to im.eachment and remo$al .rocess, and .artisan gerrmandering.
c. A+stention
(1) =efinition: deference to state courts
(a) /he federal court ma a!stain if the meaning of a state law or regulation is unclear. In this situation,
the state court might inter.ret the statute so as to a$oid the constitutional issue.
(!) Ahere a state court .roceeding is going on, the federal court will a!stain from hearing the same
matter.
d. Ade8uate and &ndependent State /rounds
(1) =efinition: ".#. #u.reme Court will not hear a case from state high court if the case is su..orted ! an
inde.endent and ade5uate state law ground of decision.
(a) "nli7e other doctrines of judicial re$iew, which a..l to the entire federal judiciar, ade5uate state
grounds a..l onl to the #u.reme Court.
"#A$PL"% A .art to a contract !reaches one .ro$ision of the contract. /he matter goes u.
through the state sstem, and the state court rules that the entire contract is nullified !ecause
the !reached .ro$ision was not se$era!le as a matter of state law and !ecause it is in $iolation
of the federal antitrust laws. /he court has ruled on one state law ground and one federal law
ground. /he #u.reme Court cannot hear this case !ecause the state law ground is ade5uate
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to su..ort the decision.
A state law ground will usuall !e ade5uate if it invalidates somethingCCa state law or a contract. It will usuall not
!e ade5uate if the law or contract is u.held under !oth state and federal law.
(!) "#C"P(&O)% #tate follows federal go$ernment, which does not count as inde.endent state
ground.
. (he 0nited States Supreme Court (OL I. @.)
1. Jurisdiction of the Supreme Court
a. "nder Article III, section 2, the #u.reme Court has original 'urisdiction in:
(1) 6arties include:
(a) -oreign di.lomats
(!) #tates
!. Appellate 'urisdiction e1ists where the federal constitution or a federal law are at issue.
d. Congress5 Power O!er the Courts
(1) Lower -ederal Courts: Ahate$er it wants
(2) #u.reme Court: Congress cannot limit #u.reme Court
(%) Congress cannot: ta7e a case from a..ellate to original i.e. 3ar!ur $. 3adison
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BAR E3AM A44LICATION
Duestion 1
/he legislature of #tate @lue enacted a statute .rohi!iting 9an artificiall am.lified .u!lic address within +,, feet of the
ca.itol !uilding while the state legislature or an of its committees is actuall conducting !usiness therein.:
Ahich of the following .laintiffs would !e most li7el to ha$e standing to attac7 in federal court the constitutionalit of the
statute .rohi!iting am.lified .u!lic addresses near the ca.itol !uildingB
A) A state legislator who $oted against the statute !ecause she !elie$ed it to !e unconstitutional.
9 A candidate for election to the state legislature who intended to address a gathering of his supporters at a
par: across from6 and within ;<< feet of6 the capitol +uilding on the following (uesday at the same time that
the legislature was conducting +usiness inside.
C) A state ta1.aer.
=) A re.resentati$e of an organi&ation formed to 9see7 judicial declarations that laws unconstitutionall infringing freedom
of s.eech are $oid.:
Duestion 2
/he -ederal #chool Lunch 6rogram .ro$ides !rea7fast and lunch to .u!lic school students, su!ject to income eligi!ilit.
6ursuant to federal statute, the director of the school lunch .rogram for an district ma, if in dou!t a!out eligi!ilit, su!mit
the 5uestion to the a..ro.riate federal district court for guidance to aid in his decision. /he same federal district court has
original jurisdiction o$er challenges to eligi!ilit determinations.
#tate <reen institutes a charter school .rogram ! which .u!lic schools are formed and run semiCinde.endentl ! .ri$ate
grou.s with .u!lic funds. "nder the .rogram, 1,E of the .u!lic schools within the state are to !e run as charter schools. /he
director of the -ederal #chool Lunch 6rogram !elie$es that children at the .ri$atelCrun schools are ineligi!le for the .rogram
and, .ursuant to the statute, .etitions the federal district court for a determination regarding their eligi!ilit. #tate <reen
challenges the statute as unconstitutional.
/he court will most li7el find the federal statute:
A) constitutional, !ecause the federal court has su!ject matter jurisdiction o$er the 5uestion .resented.
@) constitutional, !ecause federal .rograms ha$e authorit to control the method of resolution of dis.utes in$ol$ed in their
im.lementation.
C) unconstitutional, !ecause the federal statute .lacing jurisdiction in the federal court $iolates the 11th Amendment.
-9 unconstitutional6 +ecause the federal statute re8uires the federal court to render an ad!isory opinion.
II. SE4ARATION OF 4OWERS
A. (he Powers of Congress (OL II. A.)
1. Legislati!e Power
a. Congress has the .owers the Constitution gi$es it and no others.
(1) -or a federal law to !e constitutional:
(a) 3ust !e Congressional .ower that authori&es it
(!) 3ust not $iolate or conflict with constitutional right
(2) -or a state law to !e constitutional:
(a) 3ust not $iolate an constitutional rights.
Aatch out for an answer that sas the federal .olice .ower or Congress4 .ower to .romote the general
welfare. /hese .owers do not e1ist unless discussing the =istrict of Colum!ia or some other federal territor.
!. 6rocedurall, Congress .asses a !ill with a majorit in !oth houses. /he 6resident then signs the !ill or
$etoes it. If the !ill is $etoed, Congress can o$erride the $eto if it gets a $ote of 2F% majorit in each house.
c. #u!stanti$el, Congress has three sources of .ower to legislate:
(1) "numerated powers: commerce, ta1ing, s.ending, immigration
(2) /he "na+ling Clauses of the 1%th, 1'th, and 1+th Amendments: Congress can enforce ! a..ro.riate
means
(%) /he )ecessary and Proper Clause: Aiggle room8 Choice of means
"#A$PL"% Congress .asses a law creating a national !an7. /he Constitution does not e1.ressl
gi$e Congress this right. 2owe$er, the #u.reme Court reasons that a national !an7 will hel.
Congress .a de!ts, collect ta1es, s.end mone, and regulate commerce. /hus, the clause is
justified in conjunction with other enumerated .owers.
/he ?ecessar and 6ro.er Clause as an answer ! itself will usuall !e incorrect. If it4s the ?ecessar
and 6ro.er Clause in conjunction with another .ower, it is more li7el to !e a right answer.
2. Commerce Power
a. Congress can regulate:
(1) Channels of interstate commerce such as highwas, waterwas, air traffic
(2) Instrumentalities of interstate commerce i.e. cars, truc7s, shi.s, air.lanes
"#A$PL"% "sing its commerce .ower, Congress can enact a law .rohi!iting interstate shi.ment of
goods made with child la!or. Congress is tring to discourage child la!or, an interstate acti$it. It
does not matter that the .ur.ose is not commerceCrelated.
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(%) Acti$ities that 9su!stantiall affect: interstate commerce. In the area of nonCeconomic acti$it, a
su!stantial effect cannot !e !ased on cumulati$e effect.
(a) #u!stantial 0ffect:
"#A$PL"% Congress can use the commerce .ower to .rotect the right of wor7ers to form
unions. Although this seems .urel intrastate, the flow of goods and .eo.le across state lines
is affected ! la!or dis.utes.
(!) Cumulati$e 0ffect =octrine: 0$en an entire intrastate acti$it has a cumulati$e im.act on interstate
commerce.
"#A$PL"% /he federal commerce .ower .ermits regulation of the amount of wheat a farmer
can grow on his own land, for his own consum.tion, !ecause his acti$it, together with that of
other growers of wheat for their own consum.tion, ha$e a su!stantial cumulati$e effect u.on
interstate commerce.
(c) Limitations:
1) Cannot use to regulate intrastate nonCeconomic acti$it
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2) (he commerce power cannot o!ercome state so!ereign immunity. Congress cannot use
the commerce .ower to create a .ri$ate cause of action for mone damages against a state. It
can !ar racial discrimination ! .ri$ate .arties in acti$ities connected with interstate
commerce, !ut it cannot !ar racial discrimination ! a state so that .ri$ate .arties could
enforce that law ! see7ing mone damages. -or that, Congress would need to go to the
1%th, 1'th, or 1+th Amendments.
%. (aDing Power
a. Congress has the .ower to im.ose and collect ta1es in order to .a de!ts and s.end for the general welfare.
A congressional act .ur.orting to !e a 9ta1: should !e u.held as a $alid e1ercise of the ta1ing .ower, .ro$ided
that it falls in one of three categories:
(1) O!jecti$e test ( =oes the ta1 raise re$enue
(2) #u!jecti$e test C Aas it intended to raise re$enueB
(%) Congress can use the ta1 to regulate !eha$ior.
"#A$PL"% /he #u.reme Court sustained a ta1 on coal .roducers who $iolated a fair com.etition
law, e$en though it was clearl designed to !e a .enalt rather than re$enueCraising.
'. Spending Power
a. Article I, section G, clause 1, .ro$ides Congress with the .ower to s.end for the general welfare.
=o not sa that something is unconstitutional !ecause it is not for the general welfare.
"#A$PL"% Congress can gi$e mone to .olitical candidates and state that, in return, the must a!ide !
certain e1.enditure limits. /he #u.reme Court sustained this as s.ending for the general welfare
!ecause it would reduce the harmful effect of candidates4 reliance on large .ri$ate contri!utions.
"#A$PL"% Congress can s.end mone to !uild highwas. /he can e$en s.end mone to !uild a
single !ridge in a single state. /his is !ecause trans.ortation .romotes the general welfare.
"#A$PL"% Congress ma not s.end mone to !uild a $acation home for the #enate majorit leader. It
would ta7e this sort of selfCdealing and corru.tion to fall outside of the general welfare.
!. Congress can use its s.ending .ower to get around limits on its regulator .ower. It ma .ass a law offering
mone to states or indi$iduals in e1change for 91:. Often, 91: is not something that Congress could order the
state or indi$idual to do directl.
"#A$PL"% Congress cannot use its commerce .ower to regulate .u!lic schools. 2owe$er, it can use its
s.ending .ower to offer mone to the .u!lic school sstems if the agree to im.lement standardi&ed
testing.
c. Congress ma .lace a condition on recei.t of federal funds ! a state if:
(1) #.ending ser$es general welfare
(2) Condition is unam!iguous
(%) Condition relates to federal .rogram (9relatedness:)
(') #tate is not re5uired to underta7e unconstitutional action8 and
(+) Amount in 5uestion not so great as to !e considered coerci$e to state4s acce.tance
,.PO(,"(&CAL
In this ear4s !udget, Congress attaches a sti.ulation on school !rea7fast funding to the states re5uiring the reci.ient state
to offer and .a for uni$ersal health care of its citi&ens. Aill the sti.ulation !e u.held in a challengeB
No" be%a&se %o+$)t)o+ )m(ose$ $oes +ot re'ate to the 1e$era' (ro*ram .
+. 1ar and -efense Powers
a. Congress ma HArticle I, section GI:
(1) =eclare war
(2) Congress can raise and su..ort the arm
(%) 6ro$ide and maintain for the ?a$
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(') Organi&e, arm and call out militia
!. /he war .ower confers u.on Congress $er !road authorit to initiate whate$er measures it deems necessar
to .ro$ide for the national defense in .eacetime as well as in wartime. =uring wartime, Congress has the
.ower to:
(1) =raft
(2) 6rice controls J C Can do this during .eace too through commerce .ower !ut during war time, war
.owers is !etter answer
(%) Ci$ilian e1clusion
c. Congress can esta!lish militar courts to gain jurisdiction o$er mem!ers of the armed forces, conduct courtC
martial .roceedings, and tr enem com!atants.
A 5uestion might as7 what rights does a terrorist ha$e with res.ect to detentionB @oth ".#. citi&ens and
nonC".#. citi&ens within the "nited #tates (or ".#. territories) are entitled to =ue 6rocess rights. ".#.
citi&ens anwhere entitled to due .rocess.
K. &mmigration and )aturalization
*. &n!estigatory Power
a. Congress4s in$estigator .ower is: anthing related to lawma7ing functions
(1) Congress4s in$estigator .ower is !road, and it ma e1tend to an matter: re5uire .eo.le to testif,
su!.oena .eo.le.
(2) It ma do things necessar to facilitate an in$estigation. -or e1am.le, if a witness fails to a..ear after !eing
summoned !efore a congressional committee or fails to answer a 5uestion .osed ! such a committee,
Congress ma cite the witness for contem.t.
(%) Congress cannot: o$erride rights such as selfCincrimination
G. Property Power
a. ;egulate and dis.ose federal .ro.ert
If dealing with a federal territor and not a state, Congress has a general legislati$e .ower and can .ass an
law it would li7e.
L. Power of "minent -omain
a. /a7e .ri$ate .ro.ert for just com.ensation.
1,. Admiralty and $aritime Power
a. /he #u.reme Court has determined that the ?ecessar and 6ro.er Clause gi$es Congress com.lete and .lenar
.ower to fi1 and determine the maritime laws throughout the countr.
11. an:ruptcy Power
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a. Congress has the .ower 9to esta!lish uniform Laws on the su!ject of @an7ru.tcies throughout the "nited
#tates:.
12. Postal Power
a. 0sta!lish .ost offices
1%. Copyright and Patent Power
a. Congress ma 9.romote the 6rogress of #cience and useful Arts, ! securing for limited /imes to Authors and
In$entors the e1clusi$e ;ight to their res.ecti$e Aritings and =isco$eries:.
1'. Speech and -e+ate Clause
a. 3em!ers of Congress cannot !e sued or .rosecuted for anthing said during de!ate.
1+. Ci!il 1ar Amendments
a. Congress has the .ower to enforce:
(1) /he 1%th Amendment: !ans sla$er and in$oluntar ser$itude
(2) /he 1'th Amendment: .rohi!its states from $iolating due .rocess, e5ual .rotection and .ri$ileges and
immunities
(%) /he 1+th Amendment: !ans race discrimination in $oting
!. /o $alidl enforce these amendments, Congress:
(1) 1'
th
and 1+
th
amendment a..lies to onl states and not .ri$ate actors
(2) Congress has to show $iolations in hearings.
(%) ;emed that Congress .ro.oses is congruent and .ro.ortional.
"#A$PL"% Congress .asses a law stating not to discriminate against .eo.le with disa!ilities.
2owe$er, the 1'th Amendment onl states not to discriminate irrationall. Congress has gone !eond
what the amendment for!ids and cannot !e enforced.
"#A$PL"% Congress tells states to .ro$ide e5ual un.aid lea$e for male and female wor7ers to
care for famil mem!ers. /he 1'th Amendment states not to discriminate against .eo.le on the
!asis of se1 unless it is su!stantiall related to an im.ortant go$ernment interest. /he #u.reme
Court held this law constitutional.
c. If there is $alid 1'th or 1+th Amendment legislation, Congress can o$ercome so$ereign immunit, which it
cannot do otherwise.
1K. -elegation of Power
a. Congress can create: an agenc and gi$es agenc the .ower to ma7e rules that has force of law
!. Limitation: /his is constitutional as long as there is some intelligi!le .rinci.le that guides agenc.
. "Decuti!e Power (OL II. @.)
1. Chief "Decuti!e
a. /he 6resident is the chief e1ecuti$e and he has the following .owers:
(1) "nforcement of Laws
(a) /he 6resident can enforce laws, !ut he cannot ma7e them.
(2) Appointment Power
(a) /he 6resident a..oints high le$el officials such as Am!assadors and Ca!inet mem!ers with the
ad!ice and consent of the Senate.
/he .residential a..ointment .ower should !e construed as a limitation on the congressional
a..ointment .ower. It cannot a..oint mem!ers to an agenc or commission with administrati$e
.owers.
(!) Congress can delegate the a..ointment of 9inferior: officers to:
1) 6resident
2) Courts
%) 2eads of 01ecuti$e de.artments
(c) An 9inferior officer: is anone who has a su.erior.
(%) *emo!al Power
(a) 01ecuti$e officials: 6resident has .ower to remo$e them without cause or at will.
(!) 01ecuti$e officials ha$ing fi1ed terms: Congress can gi$e fi1ed terms and the 6resident can onl
remo$e these officials for cause. /his is true for judicial or 5uasi judicial officials such as
administrati$e law judges.
(c) -ederal judges: Article III. 6resident cannot remo$e them at all. Onl im.eachment.
(d) Congressional a..ro$alFremo$al: Congress cannot gi$e itself the .ower to remo$e an official
(e) 0>C06/IO?: #.ecial .rosecutor in$estigating the 6resident cannot !e remo$ed ! 6resident
(') 4eto Power
(a) Meto 6rocess: 6resident has 1, das to act through signing or $etoing a !ill .assed ! Congress.
?ot acting means !ill !ecomes law.
1) 6oc7et Meto: If the Congressional term e1.ires !efore the 1,Cda .eriod is o$er, then the !ill
dies.
(!) Congressional O$erride: 2F%s majorit $ote in 2ouse or $eto
(c) A lineCitem $eto: "nconstitutional.
@icameralism and .resentment are the onl was in which a !ill can !ecome a law. A legislati$e
$eto is unconstitutional (i.e. the law is 91: !ut if congress wants to change it the can change it
without the .resident4s signature).
(+) Pardon Power
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(a) /he 6resident ma grant .ardons.
(!) Limitations:
1) 6ardon .ower e1tends onl to offenses against the ".#. i.e. not ci$il lia!ilit and not crimes
against the state.
2) 6ardon .ower cannot undo im.eachment or restore someone to office.
,.PO(,"(&CAL
As one of his last acts in office, 6resident @artlett a!sol$es all the officials in his administration of their .erjur charges
arising from an -@I in$estigation, and all his major cam.aign donors from their #0C infractions8 and, in a gesture to his firm
!elief against ca.ital .unishment, he .ardons e$er death row inmate in the "nited #tates. Are these .ardons .ro.erB
He %a+ (ar$o+ o11e+ses a*a)+st the U.S. )+%'&$)+* (er2&r# %har*es a+$ SEC
)+1ra%t)o+s" b&t %a++ot (ar$o+ $eath ro. )+mates )1 the# are se+te+%e$ a+$
serv)+* (&+)shme+t &+$er state 'a..
(K) "Decuti!e Pri!ilege
(a) A!solute .ri$ilege: 6resident can refuse to disclose secrets a!out national securit secrets
(!) 6resum.ti$el .ri$ileged: Other confidential communications are .resum.ti$el .ri$ileged and
weighed against .ur.ose for which the information is demanded.
"#A$PL"% /he federal court su!.oenaed ta.es of ?i1on and his ad$isors, and the #u.reme
Court said this was o7a.
"#A$ (&$"% ?i1on alwas loses.
2. Commander in Chief
a. /he 6resident is the Commander in Chief of the militar. 6resident wages war.
(1) $ilitary Powers
(a) Congress has the .ower to declare war. If Congress has not done so, the 6resident4s .owers are
limited to:
1) ;es.ond to attac7s with militar force !ut not initiate wars.
(!) If the 6resident and Congress disagree, the 6resident .re$ails onl with res.ect to
1) @attlefield tactical decisions.
%. &nternational Affairs
a. (reaty Power
(1) /he 6resident has the .ower to ma7e treaties with the consent of the #enate. /he #enate must ratif the
treat ! a 2F% $ote !efore it !ecomes effecti$e.
(2) /reaties and -ederal Law: A treat will .re$ail against an earlier federal statute.
(%) /reaties and state law: /reaties ALAAN# win state law
!. "Decuti!e Agreements
(1) /he 6resident has the .ower to enter into e1ecuti$e agreements with foreign nations.
(2) 01ecuti$e agreements are the sole res.onsi!ilit of the 6resident, and need not !e ratified ! the
#enate.
(%) -ederal statutes: 01ec agreements lose if there is conflict.
(') #tate Law: 01ec agreement wins if there is conflict.
"#A$PL"% /he 6resident can use an e1ecuti$e agreement to settle claims ".#. citi&ens ha$e
against a foreign countr.
C. &nter+ranch Chec:s upon the "Dercise of Federal Power (OL II. C.)
1. Congressional Limits on the "Decuti!e
a. /eneral *ule: If Congress has enacted a $alid law, the Congress wins. 6resident is not a!o$e law.
"#A$PL"% /here is a threat of stri7e at steel mills during wartime and the 6resident decides to sei&e
these mills des.ite federal laws stating he cannot do so. Courts ha$e found this to !e unconstitutional.
"#A$PL"% /he 6resident sets u. militar courts on his own in order to tr sus.ected terrorists, Ignoring
$alid federal law esta!lished ! Congress. Again, this is unconstitutional and Congress wins. /he
6resident can as7 authorit from Congress to set u. these militar courts and that would ha$e !een
o7a.
!. &mpeachment Power
(1) Congress can remo$e the 6resident from office. It can also remo$e federal judges and an federal
official.
(a) /he 2ouse of ;e.resentati$es: 2ouse im.eaches ! majorit $ote.
(!) /he #enate: #enate has sole .ower to conduct trial
(c) Ahat can get ou im.eached:
1) /reason
2) @ri!er
%) Other high crimes and misdemeanors
In .ractical terms, Courts will not interfere with Congressional .ower to im.each.
c. Appropriations Power
(1) Ahere Congress ! legislati$e act e1.licitl directs the 6resident to s.end a..ro.riated mone, the
6resident has no .ower to im.ound (i.e., refuse to s.end or dela s.ending) the authori&ed funds.
"#A$PL"% If Congress does not want an <uantanamo .risoner transferred to the ".#., then it
can sa no federal funds ma !e used to trans.ort .risoners to ".#. /his will .re$ent the 6resident
from doing otherwise.
2. Presidential Limits on Congress
a. Meto: @efore law enacted, 6resident has to enact.
!. 6ardon .ower: 6resident can undo laws.
%. Judicial Limits on Congress and the President
a. /he onl thing a court can do is to: decide cases.
Duestion %
A stud conducted ! a Aashington 9thin7 tan7,: re$ealed that $oter registration of 2is.anic citi&ens has not 7e.t .ace with
the increase in the 2is.anic .o.ulation. In fact, $oter registration of such citi&ens shows an 11E decline o$er the .re$ious
decade, whereas the 2is.anic .o.ulation increase o$er the same .eriod should ha$e resulted in a %GE increase.
/he stud also found that some 2is.anic citi&ens who failed to register to $ote ga$e as a reason the !elief that registration
was a com.licated .rocess that the were una!le to understand, and that it re5uired time awa from wor7 that the could not
afford to ta7e. In res.onse to the stud, Congress enacted a law .ermitting $oter registration ! mail, with all mailings to
.ro$ide instructions in fi$e languages, including #.anish.
Congressional authorit to enact such legislation deri$es from:
A) the congressional .ower to regulate for the general welfare.
@) the 0na!ling Clause of the 1%th Amendment.
C9 the "na+ling Clause of the @?th Amendment.
=) the 0na!ling Clause of the 1+th Amendment.
CON5RESS CAN ONL! TA3 AND S4END FOR 5ENERAL WELFARE.
Duestion '
Congress, ! a unanimous $ote, declared war on the ;e.u!lic of -reedonia. /he #ecretar of the "nited #tates ?a$
informed the 6resident of the "nited #tates that dol.hins could !e used as mineswee.ers along the -reedonian coastline.
/he 6resident issued an e1ecuti$e order that .ro$ided for the sei&ure of all dol.hins from American a5uariums. /he
e1ecuti$e order did not e1.ressl .ro$ide for com.ensation to the a5uariums. Congress had .re$iousl enacted $arious
marine mammal a!use laws which .rohi!it an .erson from 7nowingl .lacing ca.ti$e dol.hins at su!stantial ris7 of harm.
After the 6resident4s e1ecuti$e order, Congress considered, !ut failed to .ass, a !ill countermanding the order. /he
American A5uarium Association, on !ehalf of all American a5uariums, and the -li..er -und, an ad$ocac grou. interested in
dol.hin safet, filed suit in -ederal =istrict Court to enjoin the sei&ure of the dol.hins. Assuming the .laintiffs ha$e standing,
how should the court ruleB
A) /he e1ecuti$e order is constitutional !ecause the sei&ure does not discriminate !etween .u!licl and .ri$atel owned
a5uariums.
@) /he e1ecuti$e order is constitutional !ecause the 6resident of the "nited #tates, as CommanderCinCChief, has the
.ower to sei&e .ri$ate .ro.ert during wartime.
C) /he e1ecuti$e order constitutes an unconstitutional ta7ing !ecause the e1ecuti$e order did not .ro$ide for
com.ensation for the a5uariums.
-9 (he eDecuti!e order is unconstitutional +ecause it conflicts with the marine mammal a+use law enacted
+y Congress.
/a7ings clause does not !loc7 go$ernment from ta7ing .ro.ert !ut onl .ro$ides for com.ensation.
III. THE RELATION OF THE NATION AND THE STATES IN THE FEDERAL S!STEM
A. )ature and Scope of Federal and State Powers (OL III. A.)
1. <eneral rule:
a. /he federal go$ernment: limited .owers. It has onl .owers that Constitution gi$es it.
!. /he states: ha$e .olice .ower, which is general .ower to enact laws for health, safet and general welfare.
2. /he Constitution limits the state4s .olice .owers !:
a. 01clusi$e -ederal 6ower: #tates cannot coin mone, ha$e their own currenc, ma7e treaties, ha$e di.lomatic
relations with other countries, conduct foreign affairs, cannot maintain an arm
!. Indi$idual ;ights: #tate law which conflicts with constitutional right is $oid.
c. 6reem.tion: Congress can wi.eout state laws if it also has .ower to regulate in a .articular area.
. &ntergo!ernmental &mmunities (OL III. @.)
1. &mmunity of Federal /o!ernment
a. #o$ereign Immunit: Cannot !e sued without consent
!. #u.remac Clause: -ederal law is su.reme o$er state law.
c. /a1ation of the federal go$ernment ! a state: -ederal go$ernment, federal agencies and instrumentalities are
immune from state ta1ation.
2. &mmunity of State /o!ernments
a. As a general rule, the 11th Amendment: !loc7s a .ri$ate suit against state for mone damages. 01ce.tions:
enforcement .owers, federal go$ernment can sue a state, indi$iduals can get injuncti$e relief
!. A state enjos immunit from federal ta1ation if the ta1 is a..lied to either:
(1) Cannot im.ose a ta1 on uni5ue state acti$ities i.e. .assing laws.
(2) Cannot im.ose ta1 on essential state so$ereign functions.
-ederal go$ernment can ta1 state if it is engaged in same !usiness as a .ri$ate indi$idual i.e. running a
.ri$ate hos.ital or .ri$ate school.
c. AntiCCommandeering =octrine: -ederal go$ernment cannot ma7e the states act in their so$ereign ca.acities
or as so$ereigns. Ahat does this meanB
-ederal go$ernment cannot com.el state legislatures to .ass laws.
-ederal go$ernment cannot com.el state e1ecuti$es to enforce federal laws.
/he 1,th Amendment
It does not matter if a state is ha.. to o!e the federal go$ernment regarding legislation or enforcement of a
law. It is still unconstitutional.
/he s.ending clause can often !e used here instead to achie$e the same result.
It is not commandeering to for!id the states from doing something. /his is e$en true if the .rohi!ition e1tends
to state so$ereign functions.
"#A$PL"% Congress enacts a law regulating the .urchase of guns ! re5uiring .eo.le who do so
to consent to a !ac7ground chec7. Congress orders state law officials to enforce the law. /his law
is unconstitutional.
"#A$PL"% Congress enacts a law that re5uires state legislatures to enact .rograms to dis.ose of
nuclear waste. /his is unconstitutional !ecause Congress is ordering state legislatures to legislate.
"#A$PL"% Congress enacts a law that .rohi!its race discrimination in em.loment. /his is a
generall a..lica!le .rohi!ition and not unconstitutional as it is not a so$ereign function.
C. Authority *eser!ed for (he States (OL III. C.)
1. -ormant Commerce Clause: #tates cannot discriminate against out of state goods or economic acts. -acial
discrimination is usuall in$alid a!sent com.elling interest.
a. S(*&C( SC*0(&). FO* FAC&ALL. -&SC*&$&)A(O*. LA1S% If a state law discriminates on its face
against outCofCstate goods or economic actors, the state must show:
(1) /he regulation ser$es a com.elling interest8 and
(2) /he regulation is necessar to the com.elling interest
"#A$PL"% 3aine !ans im.ortation of outCofCstate !ait fish to .reser$e 3aine fisheries from the
.arasites in the !ait fish. /his .asses the strict test a!o$e.
!. ALA)C&)/ ("S( FO* FAC&ALL. )"0(*AL LA1S% If a state law merel incidentall !urdens interstate
commerce, the state must show:
(1) Im.ortant state interest
(2) ?o e1cessi$e !urden
"#A$PL"% A =etroit smo7e a!atement ordinance that a..lies to shi.s tra$eling in interstate
commerce was u.held as a $alid health measure.
"#A$PL"% A state law limiting the length of truc7s tra$eling on state highwas or trains rolling through
the state is unconstitutional !ecause the regulation undul !urdened interstate commerce, and the state
failed to demonstrate an significant safet !enefit.
c. "#C"P(&O)S%
(1) Congressional authori&ation
(2) 3ar7et .artici.ant doctrine
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"#A$PL"% ?ew Nor7 #tate enacts legislation saing the .olice de.artment must !u uniforms
from inCstate su..liers. /his law discriminates on its face8 howe$er, this is a mar7etC.artici.ant
e1ce.tion.
,.PO(,"(&CAL
A state legislature, at the urging of the melon farm lo!!, enacted a s.ecific 3elon 6ac7ing Act to ensure that melons grown in
state were safel trans.orted, hence .reser$ing the highl a..ealing a..earance for which the state4s melons were 7nown.
/he Act, which re5uired s.ecial .rotecti$e .ac7s, affected onl melons that were grown in state. -armer sued for injuncti$e
relief, claiming the act $iolated the Commerce Clause. 2ow would a court ruleB
I1 the 'e*)s'at)o+ a((')e$ o+'# to o&t o1 state me'o+s" the+ )t .o&'$ be s&b2e%t to
str)%t s%r&t)+# as )t .o&'$ be 1a%)a''# $)s%r)m)+ator#. I1 )t a((')e$ to a'' me'o+s"
the+ )t .o&'$ be 1a%)a''# +e&tra' a+$ s&b2e%t to ba'a+%)+* test to sho. ho. )t
.as a+ )m(orta+t state )+terest .)th +o e6%ess)ve b&r$e+. Ho.ever" the
'e*)s'at)o+ at ha+$ a((')es to o+'# me'o+s *ro.+ )+ the state" +ot )m(a%t
)+terstate %ommer%e" a+$ a((')es to me'o+s *ro.+ )+ the state o+'#" so )t $oes
+ot v)o'ate the %ommer%e %'a&se as )t $oes +ot b&r$e+ )t be%a&se )t )s +ot a+
)+sta+%e o1 state tr#)+* to 1avor 'o%a's at e6(e+se o1 o&t o1 states.
d. /he dormant commerce clause a..lies to state ta1es. #tates can ta1 interstate commerce as long as not
faciall discriminator and so long as it does not !urden interstate commerce.
IV. T!4E OF ACTION 5OVERNED B! CONSTITUTION
A. State Action !ersus Pri!ate Action (OL IM. A.)
1. /he state action re8uirement: Onl the go$ernment can $iolate the Constitution.
a. /here are two e1ce.tions to the rule that constitutional rights can !e $iolated onl ! go$ernmental action.
#tate action can !e found in the actions of .ri$ate actors under:
(1) the .u!lic function theor: .ri$ate actor .erforming a function that is traditionall done ! the go$ernment
"#A$PL"% A .ri$ate com.an owned an entire town. A mem!er of the Oeho$ah4s Aitnesses was
arrested and con$icted of $iolating a state tres.ass law that made it a crime 9to enter or remain on
the .remises of another.: /he #u.reme Court re$ersed the tres.ass con$iction !ecause the town4s
streets, although .ri$atel owned, were the functional e5ui$alent of cit streets. /he #u.reme Court
held that the com.an4s actions were in $iolation of the 1st and 1'th Amendments !ecause neither
a state nor a .ri$ate owner can totall !an the e1.ression of free s.eech.
"#A$PL"% /he #u.reme Court ruled that the 9com.an town: rationale did not a..l to a .ri$atel
owned sho..ing center.
,.PO(,"(&CAL
3a1 wor7s as a waiter for the AllCAmerican cruise line, a domestic cruise line sailing !etween 3iami and Los Angeles $ia
the 6anama Canal. 2e li$es on the !oat for two months at a time, with three das off in !etween. 2e decided to start an
organi&ation for .oliticall acti$e em.loees, !ut was told that he could not do so while on the !oat. 2e sues, claiming his
that -irst Amendment rights ha$e !een $iolated. Aill he !e successfulB
The %r&)se a((ears to be a (r)vate a%tor a+$ s)+%e o+'# state a%tors %a+
v)o'ate the Co+st)t&t)o+" he ma# +ot .)+ &+'ess the (r)vate %r&)se ')+e %a+ be
%o+s)$ere$ a state a%tor 1or a %o+st)t&t)o+a' v)o'at)o+. He .o+-t s&%%ee$
&+'ess he %a+ sho. that boat )s a (r)vate %om(a+# to.+.
(2) /he significant state in!ol!ement theor: If the .ri$ate action is closel su..orted and encouraged !
the state, then the state can !e held res.onsi!le for what the .ri$ate actor does
"#A$PL"% A .ri$atel owned restaurant rents s.ace in a go$ernment !uilding. /he go$ernment
.lanned for commercial renters, !uilt the restaurant dPcor, .as for its u.7ee. and gi$es it some ta1
!rea7s. In this case, the restaurant was .rohi!ited from discriminating against racial minorities
!ecause it was found to !e wor7ing sufficientl close with the go$ernment to !e considered a state
actor.
"#A$PL"% /he #u.reme Court found state action !ecause of the 9entwinement: !etween a state and a
.ri$ate organi&ation that regulates athletic com.etitions in .u!lic schools.
"#A$PL"% 2owe$er, state action was not found where the go$ernment granted a li5uor license to
a .ri$ate clu! that raciall discriminated. /he same is true of the go$ernment granting a charter to a
cor.oration.
!. /he 1%th Amendment: ?o state action re5uirement.
V. DUE 4ROCESS AND THE INCOR4ORATION OF 4ORTIONS OF THE BILL OF RI5HTS
3ulti.le choice 5uestions on this to.ic will .resent themsel$es in two different forms. /he first as7s what is
the !est source for an argument that a .articular law is unconstitutional. -or this, as7 whether the
constitutional .ro$ision .rotects from the states or from the federal go$ernment. /he second t.e of
5uestion as7s whether a law is constitutional. -or this, loo7 to the actual content of the indi$idual
rights.
A. 1hich Constitutional Pro!ision Should e *elied OnE (OL M. A.)
1. /he @ill of ;ights can !e in$o7ed against the federal go$ernment, also 7nown as the first ten amendments.
a. &f the federal go!ernment is discriminating6 the -ue Process Clause of the Fifth Amendment should +e
in!o:ed.
2. Against the states, the 1'th Amendment =ue 6rocess Clause should !e in$o7ed.
a. /here are just three .ro$isions of the @ill of ;ights that cannot !e asserted $ia the 1'th Amendment =ue
6rocess Clause:
(1) ;ight to indictment ! grand jur
(2) ;ight to jur trial in ci$il case
(%) 01cessi$e fines clause from 0ight Amendment
!. -or discrimination ! state go$ernments, usuall the 05ual 6rotection Clause of the 1'th Amendment will
a..l unless:
(1) Misitors ( Article IM .ri$ileges and immunities
(2) 3igrants ( 6ri$ileges and Immunities of 1'
th
Amendment
/he 6ri$ileges and Immunities Clause of the 1'th Amendment is fre5uentl a wrong answer on the 3@0.
2owe$er, t it ma !e a right answer with regard to the right to tra$el and ma7e home in new state.
. Content of the *ights (OL M. A.)
1. -ue Process Clause
a. /he 1'th Amendment =ue 6rocess Clause allows the @ill of ;ights to !e in$o7ed against the states whereas
the =ue 6rocess Clause of the -ifth Amendment a..lies directl to the federal go$ernment.
!. 2owe$er, !oth offer the following 7inds of .rotection:
(1) 6rocedural due .rocess
(2) #u!stanti$e due .rocess
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c. Procedural -ue Process .rotects: .ersons against de.ri$ation of life, li!ert or .ro.ert without due .rocess
of law.
(1) Aho counts as a .erson who can assert rightsB
(a) All .eo.le
(!) Cor.orations
(2) Ahat counts as life, li!ert or .ro.ertB
(a) Li+erty is: !roadl defined i.e. interest in !eing free from !odil restraints and .unishment.
(!) Property is narrower. If the state can ta7e something awa from a .erson for no reason at all, there
is no .ro.ert interest. /here are generall .ro.ert interests in the following:
1) 6u!lic education
2) 6u!lic em.loment: go!ernment wor:er
a) /enure or /ermination for cause means there is .ro.ert interest.
!) At will em.loees at no .ro.ert interest
%) Aelfare !enefits
') =ri$er4s License
,.PO(,"(&CAL
2arold is a unioni&ed custodian for the cit4s !uildings de.artment. In a costCcutting mo$e, the cit decides to outsource
maintenance and let 2arold go. 2e sues, claiming a .ro.ert interest in his jo! !ecause of the 9just cause: .ro$ision of
his union contract. Aill he !e successful in his challengeB
!es. He )s a *over+me+t .or/er .)th a term)+at)o+ 1or %a&se %'a&se )+
%o+tra%t" .h)%h mea+s he has a (ro(ert# )+terest )+ h)s 2ob that %a++ot be
$e(r)ve$ .)tho&t $&e (ro%ess.
(c) Life
1) Interest in life, i.e. when the go$ernment wants to 7ill a .erson.
(%) Ahat .rocess is dueB Ahat 7ind of .rocedure does the go$ernment ha$e to follow in order to !e a!le to
de.ri$e a .erson or cor.oration of life, li!ert or .ro.ertB
(a) /he go$ernment must gi$e two things !efore an de.ri$ation:
1) Ade5uate notice
2) Ade5uate hearing
(!) /o determine what is ade5uate notice and what is an ade5uate hearing, the court will !alance three
factors:
1) Im.ortance of .rotected interest
2) ;is7 of error
%) @urden on the go$ernment to .ro$ide .rocedural .rotection
d. Su+stanti!e -ue Process
(1) /hese rights are not s.elled out in the constitution. /he are unenumerated.
#CA360;= ( #e1ual orientation, contrace.tion, a!ortion, marriage, .ossession of o!scene material,
education, relati$es, death.
(2) "conomic *egulation
(a) #u!stanti$e due .rocess rights are not economic.
(!) 0conomic regulation ! the states or the federal go$ernment onl has to meet rational !asis re$iew.
1) *ational +asis re!iew: 6 must show that go$ernment interest is not rationall related to an
legitimate go$ernment interest.
a) @oth o$erCinclusi$e and underCinclusi$e laws will meet rational !asis re$iew.
(%) Strict Scrutiny: if the go$ernment wants to regulate .ersonal rights, then it has to meet the highest le$el of scrutin,
strict scrutin. /he strict scrutin re5uires the go$ernment to show:
(a) Com.elling interest
(!) ?o alternati$e wa to achie$e8 necessar to meet com.elling interest8 narrowl tailored.
(') Fundamental *ightsQfirst some elements of 9.ri$ac::
(a) Contrace.tion
(!) 3arriage
(c) A+ortion
1) A woman has a .rotected .ri$ac interest in choosing to ha$e an a!ortion !efore the fetus is
$ia!le.
2) An regulation on a .reC$ia!ilit a!ortion is unconstitutional if it im.oses an undue +urden on
a woman4s right to choose an a!ortion.
%) 01am.les of undue !urden:
a) total !an
!) s.ousal consent
c) s.ousal notification
d) recording .atient names
e) .arental consent without judicial !.ass
') =oes not create an undue !urden:
a) .arental consent with judicial !.ass
!) 2' hour waiting .eriod
c) truthful, non misleading info.
d) refusing .u!lic funds
e) !an on certain methods if not the safest
+) 0$en su!se5uent to $ia!ilit: An a!ortion .ostC$ia!ilit 3"#/ ha$e e1ce.tion for
.rotecting women4s life.
(d) Family *elations
1) /he go$ernment cannot .rohi!it mem!ers of an e1tended famil from li$ing in a single
household.
2) /he state can !an unrelated .ersons from li$ing together in a single famil residence.
(e) SeDual Orientation
1) 2omose1ual sodom: go$t. cannot criminali&e ga conduct
2) Le$el of scrutin: rational !asis re$iew !ut it would !e held unconstitutional.
(f) Pri!ate "ducation
1) <o$t cannot sto. .arents from sending .arents to .ri$ate schools.
(g) Possession of O+scene $aterial
1) right to .ossess o!scene materials inside home
a) "#C"P(&O)% this does not e1tend to child .orn
(h) *ight to -ie
1) right to refuse medical .rocedures e$en if the are life e1tending
(i) *ight to (ra!el Anot a pri!acy right9
1) /he 1'th Amendment 6ri$ileges and Immunities Clause allows e$er citi&en to tra$el freel from
state to state and to set u. residenc in a new state.
2) /he right to international tra$el: not a!solute
(j) *ight to 4ote Anot a pri!acy right9
1) 3ostl, the right to $ote comes from the -irst Amendment ;ight of Association and the 1'th
Amendment. 2owe$er, there are some more s.ecific amendments set out in the constitution
regarding the right to $ote:
a) 1+th Amendment: ?o race discrimination in $oting
!) 1Lth Amendment: ?o se1 discrimination in $oting
c) 2'th Amendment: ?o .oll ta1es in federal elections8 states also co$ered
d) 2Kth Amendment: ?o age discrimination a!o$e 1G in $oting.
2) Le$el of #crutin: If there is a total !an, strict scrutin. 3ore li7el to see regulations and
.rocedure such as $oter I= use a !alancing test such as no undue !urden.
%) ;estrictions which are constitutional:
a) ;easona!le residenc re5uirements
!) ;easona!le registration re5uirements
c) ;easona!le time and manner regulations
d) -elon disenfranchisement
') ;estrictions which are unconstitutional:
a) 6oll ta1es
!) #chool !oard elections limited to .arents and .ro.ert owners
c) Cannot count $otes using standards that are $ague and not uniform.
,.PO(,"(&CAL
A state has recentl enacted a statute that allows $oters to not register as a mem!er of a .olitical .art. 2owe$er, in a
.residential election onl mem!ers of a registered .olitical .art ma $ote. Aamir, a $oter not registered with a .olitical .art,
sues for the right to $ote in a .residential election. Aill he !e successfulB Ahat if Aamir were suing for the right to $ote in a
.rimar electionB
States %a++ot )m(ose vot)+* (ro%e$&res that )m(ose a+ &+$&e b&r$e+ o+
voters. Here" there )s a+ &+$&e b&r$e+ to a11)')ate .)th (o')t)%a' or*a+),at)o+ )+
or$er to vote )+ 4res)$e+t)a' e'e%t)o+ a+$ )t )s +ot %'ear .hat the state )+terest
)s )+ ma/)+* Aam)r 2o)+ a (art)%&'ar (art# )+ or$er to vote. Aam)r .o&'$ most
')/e'# .)+ r)*ht to vote )+ 4res)$e+t)a' e'e%t)o+s. Ho.ever" 1or (r)mar# e'e%t)o+s
are $)11ere+t as the (o')t)%a' (art# %a+ $ra. the ')+e a+$ sa# that o+'# members
o1 the (art# sho&'$ e'e%t the re(rese+tat)ve o1 the (art# )+ e'e%t)o+s.
+) 6residential 0lections: #tates elect electors8 0lectoral College chooses 6resident.
(7) (a:ings Clause: the -ifth Amendment .ro$ides that the federal go$ernment cannot ta7e .ri$ate
.ro.ert for .u!lic use without just com.ensation. /his .rohi!ition a..lies to the states as well,
through the =ue 6rocess Clause of the 1'th Amendment. /a7ings clause does not sto. the
go$ernment from ta7ing .ro.ert !ut re5uires go$ernment to com.ensate.
1) /wo 7inds of ta7ings:
a) =irect go$ernment a..ro.riation: <o$ernment actuall ta7es .ro.ert
!) ;egulator ta7ing: regulation that is 9so onerous that tantamount to direct
a..ro.riation: of .ro.ert
2) /hree categories in determining whether a regulator re5uirement is so onerous as to amount
to a ta7ing:
a) 6ermanent .hsical in$asion, no matter how minor
"#A$PL"% A state law re5uires landlords to .ermit ca!le com.anies to install ca!le lines
through a.artment !uildings.
!) =e.ri$ation of all economicall !eneficial use i.e. nothing we can do with .ro.ert
"#A$PL"% A state law was .assed .ermitting onl residential de$elo.ment on the .ro.ert
owner4s land. /his does not de.ri$e the .ro.ert owner of all economicall !eneficial use and
is not a ta7ing.
"#A$PL"% A state disallows an de$elo.ment on land owned ! an indi$idual. /his is a
ta7ing.
c) @alancing ( economic im.act on owner $ersus interest of the state in .ro.ert
"#A$PL"% A %2Cmonth moratorium on de$elo.ment in an area was not considered a ta7ing.
%) /he #u.reme Court inter.reted the 9.u!lic use: language of the /a7ings Clause to mean
9.u!lic .ur.ose:. /his standard is easil met. ReloS
,.PO(,"(&CAL
Al.ha Airwas announced it would locate its new maintenance hangar and machine sho. at the far corner of the DuintCCount
Air.ort, !ringing nearl a thousand jo!s to the region. /he Air.ort authorit soon announced it would use neigh!oring land to !uild
an access road to the facilit and would need to use some adjoining nonCair.ort land to erect the construction crane, ensuring that
the runwa would not !e o!structed during construction. /he .ro.ert owners sued for injuncti$e relief. 2ow should the court ruleB
Th)s %o&+ts as a (&b')% &se o1 (ro(ert# be%a&se A'(ha A)r.a#s )s br)+*)+* 2obs
to the re*)o+ so the ('a)+t)11s %a++ot *et )+2&+%t)ve re')e1 to b'o%/ the Ta/)+*.
The# have to (a# 1or the 'a+$ to b&)'$ r&+a.a#" a+$ ba'a+%)+* test a((')es to
the %o+str&%t)o+ o1 the %ra+e. S)+%e )t $oes +ot a((ear to be (erma+e+t" there
)s +o ta/)+*" a+$ th&s +o +ee$ 1or %om(e+sat)o+ 1or the (ro(ert# &se$ b# the
%ra+e.
VI. E7UAL 4ROTECTION OF THE LAWS
A. Constitutional asis (OL MI. A.)
1. Ahere does it come fromB
a. -or the states: -ourteenth amendment
!. -or the federal go$ernment: -ifth amendment due .rocess clause
2. 05ual .rotection re5uires the go$ernment to justif when it discriminates.
. Standards of *e!iew (OL MI. @.)
-or an e5ual .rotection 5uestion, identif: (1) the t.e of discrimination and (2) identif andFor a..l the le$el
of scrutin attached to that discrimination.
1. *ational +asis will !e the le$el of re$iew in situations of dis.arate im.act. =is.arate im.act, ! itself, is not
discrimination.
"#A$PL"% If an em.loer administers a test to see which em.loees are eligi!le for .romotion, and it is neutral
on its face, !ut one race scores higher than the other, there is no discrimination.
a. #tandard of re$iew: 6laintiff must show what go$ernment has done not rationall related to an legitimate
interest. @urden is on the 6laintiff.
!. /wo e1ce.tions:
(1) Intentional dis.arate im.act ( 2a$e to show em.loer intended to discriminate through the test
(2) =iscriminator a..lication ( ?eutral standard enforced in a discriminator wa.
c. ;ational !asis re$iew a..lies to all classifications not falling under strict or intermediate scrutin, such as
classifications !ased on age, disa!ilit, and alienage if done ! Congress.
d. /he go$ernment generall .re$ails when rational !asis re$iew is a..lied
(1) "#C"P(&O)% =iscrimination in se1ual orientation and criminal law
2. &ntermediate scrutiny:
a. Intermediate scrutin a..lies to go$ernment discrimination regarding se1 and illegitimac.
%. Strict scrutiny:
a. /he go$ernment usuall fails to .ro$e its !urden under strict scrutin.
"#A$PL"% 3assachusetts has a law that re5uires .olice officers retire at age +,. /his is discrimination
!ased on age, and thus, rational !asis will a..l and the .laintiff will lose.
"#A$PL"% A state .rohi!its sameCse1 se1ual conduct !ut not heterose1ual se1ual conduct. ;ational !asis is
a..lied, !ut this will !e struc7 down. /here is no legitimate interest.
0>A3
/I6

/20 /2;00 #/A?=A;=# O- #C;"/I?N
*ational asis &ntermediate Scrutiny Strict Scrutiny
6laintiff must .ro$e no rational
relation to an legitimate
go$ernmental interest
<o$ernment must .ro$e its classification is
su!stantiall related to an im.ortant
go$ernment interest. @urden is on the
go$ernment and it must show that the
im.ortant interest is the actual reason for the
go$ernment to do this.
<o$ernment must .ro$e its
classification is necessar to achie$e a
com.elling go$ernment interest.
C. Suspect Classifications (OL MI. =.)
1. Strict Scrutiny
a. #trict scrutin a..lies to classifications !ased on race, alienage, and national origin. #uch laws will !e
.resum.ti$el in$alid, a!sent a showing ! the state that the measure is necessar to achie$e a com.elling
state interest.
!. *acial -iscrimination
(1) #tate laws .rohi!iting interracial marriages or interracial coha!itation are unconstitutional. /he faciall
discriminate on the !asis of race.
(2) De jure segregation: #egregation ! law, almost alwas unconstitutional.
(%) De facto segregation: #egregation not legall re5uired, ha..ens through .ri$ate choice.
(') #chool #egregation:
(a) Marious .lans to hinder desegregation ha$e !een deemed unconstitutional, including the closing of
all .u!lic schools.
(!) #chool !oards ha$e an affirmati$e dut to eliminate intentional racial segregation of schools. CourtC
ordered !using is constitutional where it is im.lemented to remed .ast discrimination in a
.articular school sstem, some sort of de jure segregation.
(+) O$ert classifications ma .ass strict scrutin where:
(a) <ood enough reason i.e. #egregation during race riot.
(!) Affirmati$e action ( #trict scrutin. Com.elling interest and narrowl tailored.
(K) /here are two com.elling interests for affirmati$e action:
(a) ;emed effects of .ast discrimination ! state
1) ?arrow tailoring: !enefits go as closel as .ossi!le to the .eo.le affected ! the
discrimination
"#A$PL"% A state can sa that a certain .ercentage of construction contracts must !e awarded to
minoritCowned construction com.anies !ecause, in the .ast, the state had discriminated in the
area of construction.
(!) =i$ersit in higher education
1) ?arrow tailoring: race can !e one factor among man with no fi1ed weight or 5uota
"#A$PL"% In efforts to achie$e a di$erse student !od, a uni$ersit can ta7e race into account, !ut
it cannot ha$e a fi1ed weight (i.e., a 5uota or award a certain amount of .oints for race) !ecause
that would not !e narrowl tailored
"#A$PL"% /he Court ruled that a school district ma not assign indi$idual students to schools
!ased on race in order to achie$e 9$oluntar integration: or 9racial !alancing,: when school
segregation is caused ! social factors (de facto segregation) and not caused ! .ast or .resent
go$ernment action (de jure segregation). 2owe$er, a school district is .ermitted to carr out such
$oluntar racial !alancing ! 9structural: measures, such as redrawing school &ones or !uilding
new schools, that do not use o$ert classifications.
c. Alienage -iscrimination +y States
(1) #trict scrutin if states do it. -ederal go$ernment gets rational !asis re$iew.
"#A$PL"% #tates cannot issue commercial fishing licenses to ".#. citi&ens, !ut not resident
aliens.
"#A$PL"% #tates cannot den financial aid for higher education to resident aliens.
(2) Pu+lic Function "Dception%
(a) 6olice officials
(!) <o$ernment officials
(c) 6u!lic school teachers
(d) #tate can e1clude nonCciti&ens from some go$ernment jo!s
(%) &llegal Aliens F *ational +asis re!iew. #tate discrimination against illegal children gets intermediate
scrutin.
2. &ntermediate Scrutiny
a. &llegitimacy
If there is a 5uestion with discrimination !ased on illegitimac on the !ar e1am, it will .ro!a!l !e
unconstitutional. /his sort of discrimination ser$es no im.ortant go$ernmental interest.
"#A$PL"% #tate laws that den welfare !enefits to illegitimate children are unconstitutional.
"#A$PL"% #tate laws that den illegitimate children from sharing e5uall with other children in wor7er4s
com.ensation death !enefits are unconstitutional.
0>A3
/I6

,.PO(,"(&CAL
After Alan4s death, !oth Lucia and I$an claimed the right to ta7e under Alan4s will, which merel said that his +,,,, shares in I@3
will !e left to 9his children then ali$e.: Lucia claims I$an cannot ta7e !ecause of a state statute re5uiring illegitimate children to
.ro$e .aternit !efore the .arent4s death or otherwise not ta7e at all. I$an claims his father had an affair with his mother. Ahat
analsis will the court ta7eB
State stat&te that $e+)es )''e*)t)mate %h)'$re+ 1rom shar)+* e0&a''# are
$eeme$ &+%o+st)t&t)o+a' .)tho&t (rov)$)+* s&bsta+t)a''# re'ate$ to )m(orta+t
*over+me+t )+terest. Here" there )s a+ )m(orta+t *over+me+t )+terest 88
$)v)$)+* &( estate 9 a+$ the ')m)ts (ose$ o+ )+her)t)+* the estate to o+'#
'e*)t)mate %h)'$re+ )s re'ate$ to $)v)$)+* &( the estate. There1ore" 'a. .o&'$
(robab'# s&rv)ve )+terme$)ate s%r&t)+# be%a&se )t )s s&bsta+t)a''# re'ate$ to
the )m(orta+t *over+me+t )+terest o1 $)v)$)+* &( the estate %orre%t'# a1ter
$eath.
!. SeD -iscrimination: laws that treat men and women differentl must meet intermediate scrutin.
(1) 01am.les where such laws were held to !e unconstitutional:
(a) 0state administration
(!) 3ilitar housing
(c) Alimon
(d) =rin7ing age
(2) 01am.les where such laws were held to !e constitutional:
(a) =raft
(!) #tatutor ra.e
If the e1am as7s a 5uestion in an area that is not settled, then state, 9/he Court seems to !e
focusing on the 5uestion of whether the discrimination is moti$ated ! or reinforces traditional
stereot.es a!out a..ro.riate se1 roles.: If the discrimination is moti$ated or reinforced ! such
stereot.es, it will most li7el !e unconstitutional.
c. Affirmati!e Action
(1) ;aceC!ased affirmati$e action ( strict scrutin
d. Le$el of scrutin for gender !ased affirmati$e action: intermediate scrutin
0>A3
/I6

"#A$PL"% #ocial #ecurit statutes and ta1 e1em.tions that entitle women to greater !enefits were
u.held.
"#A$PL"% A ".#. na$ discharge .rocedure that re5uired male officers, twice denied .romotion to !e
automaticall discharged whereas female officers were not, was u.held !ecause in the .ast, men had !een
afforded greater .romotional o..ortunities than women.
(1) <eneral rule: #e1C!ased affirmati$e action will !e u.held if it is to rectif .ast discrimination e$en if it is
societ4s discrimination and not s.ecificall state4s discrimination
"70AL P*O("C(&O) C,ALL")/"S
*ational asis &ntermediate Scrutiny Strict Scrutiny
T Age
T Alienage (federal)
T =isa!ilit
T #e1 orientation
T Aealth
T All else
T <ender
T Illegitimac
T "ndocumented alien children
T Alienage (state)
T =omestic tra$el
T ?ational origin
T ;ace
T Moting
BAR E3AM A44LICATION
Duestion +
A fastCfood restaurant chain wanted to construct a restaurant on ;oute '', a !usinessC&oned, secondar road running
through the town. /he chain ser$es ethnic cuisine. It had .urchased a !uilda!le lot with sufficient frontage and su!mitted
engineering and architectural .lans to the a..ro.riate town authorities. /he !uilding ins.ector, !ac7ed ! the town .lanning
!oard, denied the restaurant chain4s a..lication for a !uilding .ermit, stating the following reasons in a written decision: (1)
;oute '' cannot sustain an further traffic entering and e1iting !usinesses on the road8 (2) ;oute '' currentl has 1* fastC
food restaurants, fi$e of which are in the immediate $icinit of the chain4s .lanned location8 and (%) the location of the
entrance to the .lanned chain eater is too close to a dangerous intersection. In a letter to the town .lanning !oard mem!ers
and !uilding ins.ector, the fastCfood chain re5uested an o..ortunit to address each of the stated reasons for the denial of
the !uilding .ermit, !ut the town authorities res.onded that the decision was final. /he chain then sought a declarator
judgment of its right to address the .ermit denial.
If the chain o!tains declarator relief, it will !e !ased on rights guaranteed under:
A) su!stanti$e due .rocess.
@) e5ual .rotection.
C) the /a7ings Clause.
-9 the Fourteenth Amendment.
Duestion K
Conditions in an alread o$ercrowded federal .rison deteriorated e$en further with the influ1 of a large num!er of Cu!an
.risoners. -actions formed within the walls of the .rison, and $iolent out!ursts eru.ted !etween indi$iduals and small grou.s
with different ideological .ersuasions. #ome of the $iolent incidents were tracea!le to .ersonal animosit, !ut other disru.tions,
including two nearl fatal sta!!ings, resulted from racial tensions. 3o$ing to a$oid a further escalation in $iolence, .rison
authorities se.arated the cell!loc7s ! race, with 2is.anic, AfricanCAmerican, and Caucasian .risoners each in a different
cell!loc7. Authorities also transferred some of the .risoners to another federal facilit to reduce o$ercrowding. One .risoner, an
instigator of some of the .ast $iolence who is u.set that his closest friend is now in another cell!loc7, files suit against .rison
authorities for the segregation of .risoners ! race.
In the .risoner4s constitutional challenge, he will li7el:
A) not .re$ail, if the se.aration of .risoners ! race was rationall related to a legitimate go$ernment goal of 5uelling
$iolence.
@) not .re$ail, !ecause the rights of .risoners are outweighed ! the .rison authorities4 need to maintain order within the
.rison.
C9 pre!ail6 if prison authorities could ha!e used alternati!e means to pre!ent further !iolence without !iolating
prisoners5 e8ual protection rights.
=) .re$ail, !ecause .rison authorities $iolated .risoners4 0ighth Amendment rights ! de.ri$ing them of confinement in
their regularl assigned cell!loc7s.
VII. 4RIVILE5ES AND IMMUNITIES CLAUSES
A. Pri!ileges and &mmunities under the @?th Amendment (OL MII. A.)
1. 9?o #tate shall ma7e or enforce an law which shall a!ridge the .ri$ileges or immunities of citi&ens of the "nited
#tates: H1'th AmendmentI.
2. /he 6ri$ileges and Immunities Clause of the 1'th Amendment has $er limited a..lication and includes .rimaril
the right:
a. ;ight to tra$el to !ecome resident of new state
%. Cor.orations are not .rotected under the 1'th Amendment 6ri$ileges and Immunities Clause.
. Pri!ileges and &mmunities under Article &46 Section B (OL MII. @.)
1. #ometimes referred to as the Comit Clause, Article IM, section 2 .ro$ides: 9/he Citi&ens of each #tate shall !e
entitled to all 6ri$ileges and Immunities of Citi&ens in the se$eral #tates.:
2. /his clause .rohi!its states from discriminating against nonCresidents (!ased u.on the fact that the do not reside
in the state) with res.ect to rights and acti$ities that are fundamental to the national union.
a. /he following ha$e !een held to !e in$alid forms of nonCresident discrimination:
(1) commercial licenses
(2) commuter ta1es
(%) a!ortion
(') em.loment
!. /he 6ri$ileges and Immunities Clause does not .rotect a nonCresident against all forms of discrimination. /he
following t.es of nonCresident discrimination ha$e !een u.held:
(1) recreational license
(2) instate natural resources
%. /he test: the state can treat out of staters differentl if the discrimination is su!stantiall related to im.ortant state
interest, much li7e intermediate scrutin.
'. Cor.oration cannot assert these rights. A cor.oration is not a citi&en. A cor.oration can .rotect itself from such
discrimination with the =ormant Commerce Clause.
,.PO(,"(&CAL
Oosh and @rian, a cou.le li$ing in ?ew Oerse !ut em.loed in ?ew Nor7, ha$e filed suit o$er a commuter ta1 charged on
nonC?ew Nor7 state residents when the tra$el into ?ew Nor7 Cit. ?ew Nor7 claims residents .a through a state income ta1
not im.osed on outCofCstate residents. Aill their suit !e successfulB
Comm&ter ta6es v)o'ate the (r)v)'e*es a+$ )mm&+)t)es %'a&se o1 the
Fo&rth Ame+$me+t" )1 'o%a's are +ot s)m)'ar'# ta6e$. The)r s&)t ma# be
s&%%ess1&'.
VIII. RETROACTIVE LE5ISLATION
A. (he Contract Clause (OL MIII. A.)
1. 9?o state shallU.ass anULaw im.airing the O!ligation of Contracts: HArticle I, section 1,I.
a. /he Contract Clause a..lies onl to state legislation, and not to state court decisions. ?or does the Contract
Clause a..l to the federal go$ernment.
!. In determining whether a contract ma !e modified, the Court will consider:
(1) #e$erit of im.airment against
(2) Im.ortance of interest
"#A$PL"% A state law im.osing a moratorium on mortgage foreclosures during the de.ression
was u.held.
"#A$PL"% A state attem.ted to use transit authorit funds to su!sidi&e .u!lic trans.ortation in
$iolation of a .re$ious statutor co$enant to .ri$ate !ondholders. /his was held unconstitutional.
"#A$PL"% /he Court in$alidated state .ension reform legislation which increased the o!ligation of
com.anies under .ree1isting .ension .lans.
. Ex Post Facto Laws (OL MIII. @.)
1. /here are two ex post facto clauses in the Constitution that .re$ent !oth the state and federal go$ernments from
.assing retroacti$e criminal laws. Article I, section L, clause % .ro$ides: 9?oUe1 .ost facto Law shall !e .assed:8
and Article I, #ection 1,, Clause 1 .ro$ides: 9?o #tate shall .ass an e1 .ost facto Law.:
a. In general, a statute $iolates the ex post facto clause if it:
(1) ?ew crime
(2) 3ore .unishment
(%) Less e$idence
(') Longer limitations e1tended when ou are in the clear
,.PO(,"(&CAL
@o!!ilou was arrested on 3arch 1st for the murder of her hus!and. On Oune 1st, the state legislature
.assed a statute lowering the re5uirements for a jur con$iction in nonCca.ital cases from all 12 jurors to G
of 12 jurors. On August 1st, @o!!ilou was con$icted ! a LC% decision. Aill she !e a!le to o$erturn the
ruling on a..ealB
!es" she .)''. The state 'e*)s'at&re $e%rease$ the ev)$e+t)ar#
b&r$e+ re0&)re$ to %o+v)%t her b# ta/)+* a.a# 2&r# &+a+)m)t#
re0&)reme+t a+$ there1ore v)o'ate$ e6 (ost 1a%to 'a.s.
C. ills of Attainder (OL MIII. C.)
1. Article I, section L, clause % states: 9?o !ill of attainder U shall !e .assed:8 and Article I, section 1,, clause 1
.ro$ides: 9?o state shall .ass an @ill of Attainder.: /hese two .ro$isions .re$ent !oth federal and state
legislatures from .assing !ills of attainder.
2. A !ill of attainder is: legislation that inflicts .unishment without trial to named indi$iduals for .ast conduct
"#A$PL"% Congress .asses a law ma7ing it a crime for a mem!er of the Communist 6art to act as an
officer of a la!or union was the e5ui$alent of legislati$e .unishment, and hence a !ill of attainder.
"#A$PL"% Congress .asses a law stating that ?i1on must turn o$er $arious .residential .a.ers and ta.e
recordings. /his did not constitute a !ill of attainder, !ecause the act was nonC.uniti$e.
%. An ex post facto law will not single out an indi$idual or a grou. whereas !ills of attainder do.
'. @ills of attainder also will not in$ol$e a trial.
I3. FIRST AMENDMENT FREEDOMS
A. Freedom of *eligion and Separation of Church and State (OL I>. A.)
1. /he -irst Amendment .ro$ides that 9Congress shall ma7e no law res.ecting an esta!lishment of religion, or
.rohi!iting the free e1ercise thereof.:
a. /he -irst Amendment a..lies to !oth the federal go$ernment and the states through the 1'th Amendment.
2. "sta+lishment Clause
a. Ahere a go$ernment .rogram .refers one religion, or one religious sect, o$er others, strict scrutin analsis
will !e a..lied.
!. Ahere the legislation or go$ernment .rogram is neutral on its face, the #u.reme Court will follow the threeC
.art test under Lemon $. Rurt&man H',% ".#. K,2 (1L*1)I:
(1) #tatute must ha$e a secular legislati!e purposeG
(2) 6rinci.le or .rimar effect or .ur.ose must neither ad!ance nor inhi+it religionG
(%) #tatute must not foster an eDcessi!e go!ernment entanglement with religion.
c. *eligious Acti!ities Conducted at Pu+lic Schools
(1) #chool .raer:
(a) /he following .ractices in .u!lic schools ha$e !een held to !e in$alid:
1) 6er se unconstitutional.
,.PO(,"(&CAL
A state statute mandates a short moment of silence for meditation each da in the .u!lic school. /he
.laintiffs .resent no e$idence that the state legislature intended to .romote religious .raer. Is this
constitutionalB
Th)s )s (robab'# %o+st)t&t)o+a' be%a&se there )s +o re')*)o&s mot)ve
so )t (asses Lemo+ test.
2) /en Commandments
%) <raduation .raers
a) A state legislature ma em.lo a cha.lain to conduct an o.ening da .raer.
') 2igh school foot!all .raer
(!) A religious clu! holding its meetings in a .u!lic school does not $iolate the 0sta!lishment Clause.
d. Pu+lic School Curriculum
(1) Creationism cannot !e taught ne1t to e$olution
e. Other /o!ernment "ndorsement of *eligion
(1) A cit can include a crVche in a Christmas dis.la in a .ar7. It is for a secular .ur.ose. /he cit is just
tring to cele!rate a holida, es.eciall where there is also a #anta Clause and cand canes. It is not
religious.
(2) A cit ma grant a license .ermitting a .ri$ate grou. to .ut u. a cross in a cit .ar7 near a statehouse.
(%) 6lacement of the /en Commandments on the walls of courthouses is: unconstitutional
(') 6osting the /en Commandments as a monument along with man other monuments surrounding the
#tate Ca.itol: constitutional
(+) #unda closing laws: constitutional !ecause secular .ur.ose to .ro$ide for da of rest
(K) =elegation of authorit to religious organi&ations is unconstitutional.
f. (aD -eductions for *eligious &nstitutions
(1) <eneral rule: ?eutralit is alright so long as all nonC.rofits get the e1em.tion.
(2) A ta1 e1em.tion from sales and use ta1es a$aila!le onl for the sale of religious maga&ines and !oo7s $iolates
the 0sta!lishment Clause as an endorsement of religion.
,.PO(,"(&CAL
/he #t. ?icholas Church has a !ingo .rogram. /he state ta1es most gam!ling acti$it, !ut e1em.ts non.rofit organi&ations.
=oes it $iolate the 0sta!lishment Clause to e1tend this e1em.tion to the ChurchB
Lemo+ test. No" so 'o+* as )t e6em(ts +o+8re')*)o&s +o+(ro1)t or*a+),at)o+s
)t has a se%&'ar (&r(ose. There )s +o e6%ess)ve e+ta+*'eme+t o1
*over+me+t .)th re')*)o+.
g. /o!ernment Aid to *eligious Schools
(1) 6ro$iding !us fare for !oth .u!lic and .ri$ate (including some religious) schools has !een found to !e
constitutional.
(2) /he state can .ro$ide mone to !oth .u!lic and .ri$ate schools for:
(a) #ecular te1t!oo7s
(!) #tandardi&ed tests
(c) Lunch
(d) Li!rar and media materials, including com.uters
(e) Inter.reters for deaf students
(%) /he state cannot gi$e mone:
(a) ?o mone for religious instruction
(!) ?o mone for secular teachers at secondar schools
1) /his is not true at the uni$ersit le$el. /he states can fund the salaries of secular teachers
!ecause it assumed their .rofessional norms will .re$ent them from engaging in religious
indoctrination.
(') If a ta1 deduction is gi$en to all .arents !ased on actual e1.enditures for children attending an .u!lic,
.ri$ate, or religious school, it will !e u.held.
(+) A $oucher .rogram that allows .arents to send their children to .arochial or religious schools with state
aid instead of to failed .u!lic schools is allowed !ecause aid is neutral with res.ect to religion to a !road
class of citi&ens, defined without reference to religion, and .arents direct aid to religious schools as a
result of their own inde.endent and .ri$ate choice.
h. Pro!iding Pu+lic Ser!ices (hrough *eligious &nstitutions
(1) Congress can gi$e mone for neutral .ur.ose
%. Free "Dercise Clause
a. A .erson4s religious !eliefs are a!solutel .rotected. /he go$ernment ma not .unish an indi$idual ! dening
!enefits or im.osing !urdens !ased on religious !elief.
(1) /he go$ernment ma not determine the truth or falsit of a .erson4s religious !eliefs, !ut it ma determine a
.erson4s sincerit in his or her claim of religious !elief.
!. Ahere an indi$idual4s conduct is moti$ated ! his religious !eliefs, the state ma regulate or .rohi!it the
acti$it if the regulation is neutral in res.ect to religion and is of general a..lica!ilit.
(1) In 0m.loment =i$ision $. #mith H'L' ".#. G*2 (1LL,)I, the #tate of Oregon: den unem.loment
!enefits to a wor7er fired for using illegal drugs for religious .ur.oses, and the #CO/"# u.held it.
c. Other a..lications:
(1) Airforce regulation that .re$ents headgear for em.loees
(2) Amish social securit
d. /wo 01ce.tions ?ot O$erruled in #mith:
(1) #a!!ath o!ser$ance unem.loment !enefits
(2) Amish high school
,.PO(,"(&CAL
/he .u!lic school district im.oses a $er rigid rule e1.ressl for!idding anthing that can !e used as a wea.on. Ale1 comes
to school the following da with a $er large crucifi1 with shar. edges around his nec7. 2e is sus.ended and wants to
challenge the rule. 2ow will a court li7el res.ondB
The law is about conduct as opposed to belief so we use the Smith test. The state may regulate or prohibit the activity
if the regulation is neutral in respect to religion and is of general applicability. Second question, this is a neutral rule
applying to anyone so the school will win unless Alex can show that when the school enacted the law, they were trying
to target religion.
. Freedom of "Dpression (OL I>. @.)
1. /he -irst Amendment .ro$ides 9Congress shall ma7e no law ... a!ridging the freedom of s.eech, or of the .ress8 or
the right of the .eo.le .eacea!l to assem!le, and to .etition the go$ernment for a redress of grie$ances.:
a. /he -irst Amendment was held a..lica!le to the states through the =ue 6rocess Clause of the 1'th
Amendment.
,.PO(,"(&CAL
3elanie 3arshall, head of the Llama 6resentation #ociet, decided to run an ad$ertisement in the Aashington, =.C.,
news.a.ers a!out the .light of the llama. #he arranged for it to run in the .a.ers on the same da Congress was de!ating an
animal .rotection law. /he Aashington =ail ?ews refused to run the ad, and 3elanie would li7e to sue. Aill she successfull
force the .a.er to .rint the adB
No 1)rst ame+$me+t v)o'at)o+ here be%a&se there )s +o state a%t)o+.
2. <eneral .rinci.le: -irst Amendment sto.s go$ernment from distorting mar7et.lace of ideas es.eciall with .olitical
s.eech
a. Strict Scrutiny
(1) /he go$ernment will face strict scrutin if it engages in contentC!ased discrimination.
(a) /his is the form of discrimination censorshi. would ta7e.
(!) An e$en more o!$ious form of this is $iew.oint discrimination.
"#A$PL"% A ?ew Nor7 ordinance .rohi!iting .olitical s.eech in the .ar7 was held
unconstitutional as a contentC!ased regulation of .olitical s.eech that could not !e justified !
.roof of a com.elling go$ernmental interest ser$ed ! narrowl tailored means.
"#A$PL"% /he go$ernment cannot .rohi!it desecration of the American flag. /he
go$ernment cannot silence this message of .olitical .rotest.
"#A$PL"% /he go$ernment cannot .rohi!it s.eech critical of foreign go$ernments near em!assies.
/his is $iew.oint !ased discrimination and unconstitutional.
(2) Common .attern: contentC!ased regulation, strict scrutin, unconstitutional
(%) -i$e e1ce.tions:
(a) If the go$ernment .asses strict scrutin.
"#A$PL" % /he go$ernment can !an child .ornogra.h, including fa7e child .ornogra.h.
(!) "n.rotected or lowC$alue s.eech.
(c) <o$ernment as s.ea7er.
(d) Content neutral conduct regulation.
(e) ContentCneutral time, .lace and manner regulation.
!. 0nprotected and low-!alue Speech
(1) A regulation which relates to un.rotected s.eech onl must .ass the rational !asis test.
(a) "n.rotected s.eech includes:
1) #.eech that ad$ocates $iolence or unlawful action
a) /est: <o$t can limit the s.eech if the s.ea7er intends to .roduce imminent unlawful
action (su!jecti$e) and the s.eech is li7el in fact to .roduce imminent unlawful
action (o!jecti$e). /his is modern $ersion of clear and .resent danger.
"#A$PL"% A s.ea7er who ells to a loud angr crowd to go smash the windows at
#tar!uc7s ma !e .unished.
"#A$PL"% A s.ea7er who ells to a loud crowd to go smash the windows at #tar!uc7s
at a later time ma not !e .unished.
2) -ighting words:
a) Aords that are li7el to incite an immediate $iolent reaction
"#A$PL"% Calling someone a 9gJddamn fascist and rac7eteer: during Aorld Aar II
constitutes fighting words.
i) /o fall within this categor, the s.eech must !e more than annoing or offensi$e8 it
has to !e a direct .ersonal insult.
"#A$PL"% =uring the Mietnam Aar, Aearing a jac7et that sas 9-Jc7 the =raft: on
the !ac7 does not constitute fighting words !ecause it is not a .ersonal insult.
ii) 9-ighting words: statutes are su!ject to facial in$alidit if the conduct .roscri!ed is
$ague (e.g., a law .rohi!iting 9o..ro!rious words:) or o$er!road.
"#A$PL"% A .rotester tells a .oliceman, 9Nou son of a !Jtch, I will cho7e ou to
death.: /he statute at issue .rohi!its o..ro!rious words, and thus, is o$er!road.
/he .rotester cannot !e .unished.
iii) 9-ighting words: statutes designed to .unish certain $iew.oints are
unconstitutional.
%) 2ostile audience s.eech:
a) #.eech that illicit an imminent $iolent res.onse against the s.ea7er from a $iolent
crowd.
"#A$PL"% =uring a ci$il rights march, the angr crowd !egins to throw roc7s and the
marchers are con$icted of distur!ing the .eace. /his is not constitutional !ecause the
.olice did not do enough to .rotect the s.ea7er first.
') O!scene s.eech8 and
a) -or s.eech to !e considered o!scene, a threeC.art test must !e satisfied (3iller):
i) /he a$erage .erson, when a..ling local communit standards, would find the
wor7, ta7en as a whole, a..eals to the .rurient interest8
ii) /he wor7 de.icts or descri!es, in a .atentl offensi$e wa, se1ual conduct
s.ecificall defined ! the a..lica!le state law8 and
iii) /he wor7, ta7en as a whole, lac7s serious literar, artistic, .olitical or scientific
$alue
,.PO(,"(&CAL
An ardent antiCgo$ernment acti$ist, Cind decides to sew an American flag on the rear end of her jeans and .arade around
town on Oul 'th. A .olice officer tells her to remo$e the flag and then arrests her for disorderl conduct when she refuses.
#he claims a right under the -irst Amendment to wear the flag as she sees fit. 2ow would a court ruleB
Th)s )s %o+te+t8base$ re*&'at)o+ a+$ the %o&rt .)'' a(('# str)%t s%r&t)+# a+$ the
('a)+t)11 .)'' .)+ &+'ess *over+me+t %a+ sho. )t )s &+(rote%te$ s(ee%h. It-s +ot
1)*ht)+* .or$s" obs%e+e s(ee%h or s(ee%h that a$vo%ates v)o'e+t or &+'a.1&'
a%t)o+ so the F)rst Ame+$me+t 1ree e6er%)se a((')es.
+) =efamator s.eech.
a) Constitutional restrictions a..l to defamator s.eech where the .laintiff is either a
.u!lic official or .u!lic figure, or where the defamator statement in$ol$es a matter
of .u!lic concern.
i) Ahen the .laintiff is a .ri$ate .erson and the su!ject of the statement is a matter of
.urel .ri$ate concern: /his is un.rotected categor, and strict lia!ilit can !e
a..lied.
ii) Ahen the .laintiff is a .ri$ate .erson and the su!ject of the statement is a matter of
.u!lic concern: =efamation cause of action re5uires negligence. #trict lia!ilit not
re5uired.
iii) Ahen the .laintiff is a .u!lic official or .u!lic figure, the .laintiff must .ro$e the
state law re5uirements of defamation, .lus 9actual malice,: defined as 7nowledge of
the falsit or rec7less disregard of the truth or falsit of the statement. /his rule
holds whether the allegedl defamator statement is a matter of .u!lic or .ri$ate
concern.
i$) If a .ri$ate .laintiff suing a media defendant for falseClight in$asion of .ri$ac,
concerning a matter of .u!lic interest: the law must re5uire actual malice.
a. In addition, the Court said that a news.a.er or !roadcaster cannot !e held
lia!le for .u!lishing truthful information o!tained from the .u!lic record. An
newsworth and true information is also .rotected.
(2) Certain categories of s.eech recei$e lower le$els of .rotection (quasiC.rotected s.eech):
(a) Commercial s.eech8 and
1) Commercial s.eech is .rotected ! the -irst Amendment if it is not false or dece.ti$e and
does not relate to unlawful acti$it. If commercial s.eech satisfies these re5uirements,
go$ernment regulation of the s.eech must satisf the threeC.art test:
a) ser$es a su!stantial go$ernmental interest
!) directl ad$ances that interest, and
c) not more e1tensi$e than necessar to ser$e that interest
2) A state cannot .lace a !an on the ad$ertisement of drug .rices.
%) A state cannot .rohi!it attornes from ad$ertising legal ser$ices.
') #tates cannot !an all ad$ertising for legal .roducts.
+) A state can:
a) Lawers from soliciting clients in .erson
!) Commercial !ill!oards to ser$e interest of aesthetics and highwa safet
(!) #e1ual or indecent s.eech.
1) Indecent s.eech is full .rotected !ut can !e regulated on the !asis of secondar effects. #uch
regulations must ser$e a su!stantial go$ernment interest, and lea$e o.en reasona!le alternati$e
channels of communication.
"#A$PL"% A cit can im.ose &oning restrictions on adult theaters, e$en it restricts the
theaters from L+E of the cit.
"#A$PL"% A !an on .u!lic nudit, including nude dancing in adult entertainment
esta!lishments, was held constitutional.
c. /o!ernment as Spea:er
(1) /est: Ahether s.ea7er is s.ea7ing for self or go$ernment
"#A$PL"% /he go$ernment .rohi!ited doctors in go$ernment clinics from discussing a!ortion with
its .atients. /his was held constitutional.
"#A$PL"% /he go$ernment cannot .rohi!it go$ernmentCfunded legal ser$ices lawers
re.resenting .ri$ate indi$iduals from !ringing a claim challenging the restriction of welfare !enefits.
/his is unconstitutional !ecause the lawers are s.ea7ing on !ehalf of their clients not the
go$ernment.
d. Conduct *egulation
(1) A law which regulates conduct, creating an incidental !urden on s.eech, is allowa!le if:
(a) im.ortant go$ernment interest
(!) no greater !urden than necessar
"#A$PL"% It is constitutional for the go$ernment to restrict .eo.le from !urning their draft
cards.
e. (ime6 Place6 $anner
(1) ;easona!le regulation of the time, .lace, or manner of s.eech is allowed.
(a) /he go$ernment ma .lace reasona!le restraints on the time, .lace, and manner of s.eech in
.u!lic areas, such as streets, sidewal7s, and .ar7sQ.laces historicall associated with e1.ressi$e
conduct (e.g., .ic7eting, leafleting, and !roadcasting).
1) A threeC.art test is used to determine the constitutionalit of time, .lace, manner, regulation
of s.eech and assem!l in .u!lic .laces. /he regulation must:
a) @e content neutral as to !oth su!ject matter and $iew.oint
!) ?arrowl tailored to ser$e an im.ortant go$ernment interest
c) It must lea$e o.en alternati$e s.aces
2) #tates can re5uire that large gatherings: get a .ermit to use .u!lic .ro.ert.
%) A state cannot re5uire .arades or marches to .a for .olice .rotection. /his would not !e
content neutral. @ecause un.o.ular s.eech would !e charged more.
') A state can restrict the $olume and hours of am.lifiers.
+) A state cannot enact a com.lete !an on doorCtoCdoor solicitation, !ecause a homeowner can
.rotect his .ri$ac ! .osting a 9?o #olicitors: sign.
K) An ordinance re5uiring doorCtoCdoor solicitors, or can$assers, to identif themsel$es to local
authorities was u.held in the interests of crime .re$ention.
*) /he #u.reme Court held that a cit ma not re5uire religious or .olitical can$assers to:
G) /he #u.reme Court has u.held the constitutionalit of a federal law that .ermits the 6ost
Office, u.on a householder4s re5uest, to order a mailer to sto. all future mailings to that
addressee.
L) A .eaceful .rotest on a sidewal7 in front of a .ri$ate home ma !e: restricted as long as
restriction is content neutral and .rotestor is an alternati$e .lace to .rotest.
1,) In some cases, the Court has u.held !uffer &ones if the are not too !ig.
(!) #.eechCrelated acti$ities at nonC.u!lic forums, such as militar !ases, jails, go$ernment
wor7.laces, and mail!o1es can !e regulated ! $iew.ointCneutral regulations. /he test used ! the
Court re5uires a go$ernment regulation to !e:
1) Miew.oint neutral
2) ;easona!l related to legitimate go$ernment interest
(c) A state ma .rohi!it demonstrations on jailhouse grounds.
(d) 3ilitar !ases ma: !e closed to .olitical s.eech.
(e) /he go$ernment can regulate s.eech in go$ernment wor7.laces.
(f) A cit ma sell s.ace for: ma sell commercial !ut not .olitical ad$ertisers.
(g) A .u!lic school ma not den: cannot e1clude grou.s !ased on their $iews, including religious
grou.s.
(h) A .u!lic tele$ision station can e1clude a candidate from its de!ate.
%. Pu+lic "mployment
a. <eneral rule: Onl high le$el .olic ma7ing jo!s can !e restricted to .eo.le with .articular .olitical affiliation
"#A$PL"% A .u!lic defender is not a highCle$el .olicCma7ing .osition.
!. An indi$idual ma !e de.ri$ed of .u!lic em.loment for .olitical association, if:
(1) acti$e mem!er of a su!ser$ice organi&ation
(2) with 7nowledge of illegal goals
(%) intent to further illegal goals
c. Aith res.ect to oath re5uirements for .u!lic entr:
(1) the go$ernment can re5uire: .u!lic em.loees to ta7e oath to su..ort constitution and o..ose illegal
o$erthrow of go$ernment.
(2) .u!lic school teachers do not ha$e to re.ort a list of all organi&ations to which the !elong8
(%) the go$ernment cannot re5uire .u!lic em.loees to swear not to: aid, ad$ice the Communist .art
(') the go$ernment cannot re5uire em.loees to swear to ins.ire re$erence for the flag8
(+) school children do not ha$e to recite the 6ledge of Allegiance (the are not .u!lic em.loees)8 and
(K) lawers can !e re5uired to: swear to su..ort and defend the Constitution.
d. 6u!lic em.loees ma !e disci.lined or fired for s.eech if:
(1) not on a matter of .u!lic concern
(2) e$en if s.eech is .u!lic concern, can fire if s.eech is .otentiall disru.ti$e to wor7.lace
'. School Children
6u!lic school children can !e disci.lined for s.eech if: .otentiall disru.ti$e.
+. Prisoners
6risoners4 s.eech rights ma !e restricted if the regulation is rationall related to legitimate .enalogical
o!jecti$e
K. Prior *estraint
a. <eneral rule: #trong .resum.tion against .rior restraints.
!. /here is a strong .resum.tion against the constitutional $alidit of an sstem of .rior restraint of e1.ression.
(1) /he #u.reme Court refused to .ermit the go$ernment to enjoin the .u!lication of the 6entagon 6a.ers.
(2) Confiscation ! the 6ost Office of mailed materials determined ! the 6ostmaster <eneral to !e
9o!scene: was held in$alid.
c. 01ce.tional cases in which .rior restraints are allowed:
(1) militar classification
(2) go$ernment em.loee writings .re .u!lication re$iew
(%) 6retrial gag order
d. /he #u.reme Court re5uired trial judges to consider three factors in determining if a restraining order against
.retrial .u!licit is a..ro.riate:
(1) nature of .retrial .u!licit
(2) a$aila!ilit of other measures
(%) li7el effecti$eness of restraining order
e. 6retrial gag orders are usuall unconstitutional there are alternati$e means to .re$ent .ollution of the jur
.ool:
(1) Moir dire
(2) change of $enue
(%) .ost.onement
f. Another form of .rior restraint is the censorshi. or licensing of motion .ictures .rior to their e1hi!ition. /he Court
has held that statutes re5uiring films to !e su!mitted to a @oard of Censors !efore showing them are
constitutional if the following re5uirements are met:
(1) narrow and reasona!le standards
(2) immediate injunction
(%) !urden on censor
(') .rom.t ruling
g. A method the go$ernment fre5uentl uses for regulating the time, .lace, and manner of s.eech is to re5uire a license
or .ermit for such acti$ities as a .arade, demonstration, or rall.
(1) A licensing statute that is $alid on its face must !e o!eed and a .ermit denial cannot !e ignored, e$en if
the statute is a..lied unconstitutionall.
(2) Ahere a statute is faciall $oid (i.e., gi$es the licensing officials unrestricted discretion): then we can ignore the
faciall $oid statute and .rotest anwa.
h. Injunctions must !e o!eed or a..ealed8 the cannot !e ignored e$en if erroneous.
*. O!er+readth
a. Ahen a state has the .ower to regulate an area dealing with free s.eech, it must do so in a wa that is:
narrow and s.ecific
(1) O$er!readth is an e1ce.tion to third .art standing.
G. 4agueness
a. /he 9$agueness: doctrine is closel related to the 9o$er!readth: doctrine. <o$ernmental regulations must !e
drawn 9with narrow s.ecificit: and not $ague. /he following statutes ha$e !een ruled 9$oid for $agueness:
under due .rocess in5uiries:
(1) treating flag contem.tuousl
(2) dening jo!s to su!$ersi$es
L. Press
a. /he .ress has no greater freedom to s.ea7 than an ordinar mem!er of the general .u!lic.
(1) A news.erson has no -irst Amendment right to refuse to testif !efore a grand jur.
(2) In general, radio and tele$ision !roadcasting: can !e more closel regulated !ecause airwa$es are
limited and controlled ! go$ernment.
(%) /he Court has held that ca!le tele$ision recei$es -irst Amendment .rotection somewhere !etween:
networ7 /M and news.a.er s.eech
(') /he go$ernment can !an offensi$e se1ual content and s.eech on !roadcast tele$ision.
(+) Ahere ca!le /M o.erators are su!jected to contentCneutral regulations: intermediate scrutin.
(K) On the other hand, where contentCs.ecific regulation is im.osed, the Court has et to select a standard
of re$iew8 howe$er, the Court allows ca!le /M o.erators the right to !an 9indecent: .rogramming on
channels that are leased outright to unaffiliated third .arties (!ut not to .u!lic access channels).
1,. ar Admission
a. /he state is .ermitted, under the =ue 6rocess Clause, to in5uire into the 5ualifications and fitness of
candidates for admission to the !ar.
(1) communist .art
(2) must answer 5uestions
(%) can ma7e us ta7e oath
BAR E3AM A44LICATION
Duestion *
An eighteenthCcentur $essel is anchored in the har!or of the state4s ca.ital, and is maintained with state funds. /he doc7 at
which the shi. is anchored is a .o.ular tourist attraction. Although no one is .ermitted to !oard the shi., the state has
o.ened a doc7side museum .ro$iding information a!out the $essel4s histor. 3erchant seamen hired ! the state maintain
the shi. on a dail !asis.
/he shi. sails onl once a ear, on #e.tem!er ', when a cruise around the har!or commemorates the first landing of the
shi.. =ignitaries ta7e u. ', reser$ed s.aces a!oard shi., !ut the other 12, s.aces are gi$en out to the general .u!lic !
lotter. @ecause the cruise is a high .rofile e$ent drawing s.ectators and media, some .eo.le who ha$e gained s.aces on
the shi. ha$e ta7en to carring .olitical signs .romoting candidates or issues. In the interest of fire and .u!lic safet, the
state has enacted legislation .rohi!iting .eo.le from holding signs or distri!uting literature while on !oard the shi. during the
#e.tem!er festi$ities.
#e$en mem!ers of a committee to reelect a local .olitician are .ic7ed ! lotter to .artici.ate in the cruise, and the all
a..ear at the doc7 with signs .romoting the .olitician4s candidac. /he committee mem!ers are .rohi!ited from !oarding the
shi. with their signs. #u!se5uentl, all se$en of the committee mem!ers file suit in court challenging the constitutionalit of
the statute.
/he most li7el outcome of the suit is that:
A) the committee mem!ers will .re$ail, !ecause the statute .rohi!its .rotected sm!olic s.eech.
@) the committee mem!ers will .re$ail, !ecause the shi. is a .u!lic forum.
C) the state will .re$ail, if there is a li7elihood that the committee mem!ers will incite $iolence.
-9 the state will pre!ail6 +ecause the state can limit acti!ities on +oard the ship to those which are consonant
with the day5s e!ents.
Duestion G
Citi&ens of #tate 6ur.le were mesmeri&ed ! the disa..earance of a oung schoolteacher who $anished while jogging along
a .o.ular waterwa. Local and regional news stations and the local .ress followed the de$elo.ing stor closel, and a
we!site was created that trac7ed ti.s, leads, and search de$elo.ments. One wee7 after her disa..earance, friends
conducting their own search located the woman4s remains in a shallow gra$e. At the time of the disco$er, a local news team
was following the grou. and filming the search. /he ne1t da, the state4s largest circulation news.a.er .u!lished a still
.hotogra.h of the woman4s remains ta7en from the film shot ! the !roadcast news team. In a frontC.age article !elow the
.hotogra.h, it was re.orted that the woman had !een se1uall assaulted and the cause of death was as.h1iation !
garroting. /he woman4s sister and onl sur$i$ing famil mem!er !rings suit for in$asion of .ri$ac against the news.a.er for
its .u!lication of the .icture.
If the news.a.er raises the -irst Amendment as a defense, the court will li7el find that:
A) the news.a.er is not lia!le, !ecause the -irst Amendment .rotects the .u!lication of truthful information.
9 the newspaper is not lia+le6 +ecause the First Amendment protects the pu+lication of truthful depictions of
newsworthy e!ents e!en if offensi!e to some sensi+ilities.
C) the news.a.er is not lia!le, !ecause the -irst Amendment right to free s.eech guaranteed ! the Constitution
outweighs the right to .ri$ac guaranteed ! tort law.
=) the .u!lication of the .hotogra.h is not .rotected ! the -irst Amendment.
1. O";I#=IC/IO?
2. #/A/0 AC/IO?
%. #/A/0# O; -0=0;AL <OM/