Constitutional Law Opening Paragraphs

(1) Standing
Article III provides that the federal courts only have jurisdiction where there is an actual case and controversy.
Thus, in order to properly assert her claims in federal court, a plaintiff must have standing. There is standing where
the plaintiff alleges (1) an actual or imminent injury, (2) which was caused y the defendant!s conduct, and (")
which is redressile y the court.
An association may sue on ehalf of its memers if (1) the memers would have standing to sue on their own, (2)
the interests of the litigation are germane to the organi#ation!s purpose, and (") the memers would not need to
participate in the suit.
A ta$payer has standing if (1) the law he see%s to challenge was enacted under &ongress!s ta$ing and spending
power, and (2) he alleges that &ongress has e$ceeded some specific limitation on that power.
(2) Ripeness
'or proper federal jurisdiction, the claim must e ripe for review. A claim is ripe where the plaintiff would suffer
harm if review were denied.
(3) Mootness
'or proper federal jurisdiction, there must e an actual controversy at every stage of the litigation. Thus if events
after the filing of the lawsuit end the plaintiff!s injury, the claim should e dismissed as moot. (owever, there is an
e$ception to the mootness doctrine where the wrong is capale of repetition yet evading review, or where the
defendant has voluntarily ceased the conduct which caused the plaintiff!s harm.
(4) SSI
The 11
th
Amendment prohiits private individuals from ringing suits in federal courts against state government.
(owever, a state may waive its sovereign immunity. Also, the 11
th
Amendment does not ar suits against state
officers for injunctive relief. )oreover, &ongress may arogate **I under sec. + of the 1,
th
Amendment when it is
acting to remedy - prevent an already recogni#ed constitutional violation, and when the law is proportional and
congruent to the constitutional violation.
() !or"ant Co""er#e Clause
The &ommerce &lause gives &ongress plenary power to regulate interstate commerce. (owever, where &ongress
is silent on an issue, the states are free to regulate local transactions affecting interstate commerce. .ut, state
regulations which unduly urden interstate commerce are unconstitutional.
/here a state regulation discriminates against out0of0staters, there is a presumption that the regulation unduly
urdens interstate commerce. Thus, the state must show that the regulation is necessary to serve an important
government interest, and that there are no less restrictive means availale. (owever, there is an e$ception when
&ongress has approved the regulation or where the state is acting as a mar%et0participant.
/here the state regulation is non0discriminatory, the &ourt will alance the state!s interest in maintaining the
regulation against the urden on interstate commerce.
($) Pri%ileges and I""unities Clause
The 1rivileges and Immunities &lause of the ,
th
Amendment prohiit a state from denying non0citi#ens the
privileges and immunities afforded to its own citi#ens. Thus a state or local law which discriminates against out0of0
staters with regards to civil lierties or an individual!s aility to earn a living will e struc% down as unconstitutional
unless the state demonstrates that the law is necessary to serve an important government purpose. .ut, the 12I
clause does not apply to corporations or aliens.
1
(&) State '#tion
The 1,
th
Amendment only applies where there is action y the state or local government, or y an individual who is
performing a function which is traditionally performed e$clusively y the state.
(() )*ual Prote#tion
The 34ual 1rotection &lause of the 1,
th
Amendment prohiits state governments from denying any person within its
jurisdiction the e4ual protection of the laws. /hile the 1,
th
Amendment applies e$clusively to state governments,
grossly unreasonaly discrimination y the federal government is prohiited y the 5ue 1rocess &lause of the +
th

Amendment. 6nder either provision, the analysis is the same.
To successfully assert an e4ual protection claim, the plaintiff must first show that she is a memer of a class of
persons who is eing treated differently from others. The discrimination may appear on the face of the law, or
where the law is facially neutral, the plaintiff must show that there is oth a discriminatory intent for the law and a
discriminatory impact for the law.
/here there is a classification, the level of scrutiny to e applied depends on classification at issue or the right
eing limited.
&lassifications ased on race, national origin, or alienage generally must meet strict scrutiny 7 necessary to
achieve a compelling government purpose. *o must regulations which implicate a fundament right 7 travel, voting
or 'ree *peech.
&lassifications ased on gender or illegitimacy must meet intermediate scrutiny 7 sustantially related to an
important government purpose.
/here the law does not affect a suspect class nor implicate a fundamental right, the law need only meet rational
asis review. That is the challenger must demonstrate that the law is not rationally related to a legitimate
government interest. 3.g. Age, disaility, wealth and other classifications.
(+) Pro#edural !ue Pro#ess
The 5ue 1rocess &lause of the 1,
th
Amendment re4uires that a state provide its citi#ens fair process and
procedures efore the government may deprive one of life, lierty or property interest. 1rocedural due0process
invo%es a two0step in4uiry.
'irst, there must e a deprivation of life, lierty, or property. There is a lierty deprivation when the state ta%es
away a significant freedom secured y the &onstitution or statute. There is a property deprivation when the state
ta%es away an entitlement to the continued receipt of a enefit. 8ote also that the deprivation must e intentional or
at least rec%less. A deprivation that results from negligence is an insufficient ases for a procedural 51 violation.
If there is a deprivation, the ne$t step is to consider what process is due. (ere, the court will alance (1) the
importance of the interest to the individual, (2) the aility of additional procedures to increase the accuracy of the
fact0finding process, and (") the government!s interest in fiscal and administrative efficiency.
The final step is to consider whether the government has provided the appropriate process.
(1,) Su-stanti%e !ue Pro#ess
/here the law limits the aility of all persons to engage in an activity, sustantive due process may apply. The 5ue
1rocess &lause of the +
th
Amendment applies to the federal government, which the due process clause of the 1,
th

Amendment applies to the states. The in4uiry is whether the government has an ade4uate reason to ta%e away a
persons life, lierty or property interest.
(ere, the analysis depends on the right eing impaired. /here the law limits a fundamental right, such as the right
to vote, travel, privacy or freedom of speech, strict scrutiny applies. In all other cases, the rational asis test
applies.
2
(11) .ree Spee#h
A law which see%s to regulate speech is presumptively unconstitutional. To justify content0ased regulation of
speech, the government must show that the ordinance is necessary to serve a compelling state interests and it is
narrowly drawn to achieve that end. 95iscuss whether the regulation is content0ased:
&ontent0neutral regulations on speech are suject to intermediate scrutiny, and will e upheld if the government
can show that (1) they advance an importance interest unrelated to the suppression of speech, and (2) they do not
urden sustantially more speech than necessary to further those interests.
a/ 0i"e1 Pla#e and Manner Restri#tions
To e valid, government regulation on speech in pulic forums must e (1) content neutral, (2) narrowly tailored to
serve a significant government interest, and (") leave open alternative channels of communication.
;egulations on speech in designated pulic forums 7 places where the government could close speech, ut
chooses to open 7 must meet the same standard as applies to pulic forums.
;egulations on speech in private forums must (1) e viewpoint neutral and (2) reasonaly related to a legitimate
government interest.
-/ Prior Restraints
1rior restraints on speech must meet strict scrutiny. The restraint must e necessary to serve a compelling
government interest.
#/ 2agueness 3 O%er-readth
A law is unconstitutionally vague if a reasonale person cannot tell what speech is prohiited and what is allowed.
A law is unconstitutionally overroad if it regulates sustantially more speech than the constitution allows.
d/ S4"-oli# Spee#h
The government can regulate conduct that communicates if it has an important interest unrelated to suppression of
the message and if the impact on communication is no greater than necessary to achieve the government!s
purpose.
e/ Co""er#ial Spee#h
&ommercial speech which inherently ris%s deception is not protected y the 'irst Amendment, so the government
may regulate such speech as it pleases. ;egulations on commercial speech which is not inherently deceptive must
meet intermediate scrutiny.
5/ O-s#enit4
<scene speech is not protected y the 'irst Amendment. *peech is oscene if (1) it appeals to the prurient
interest, (2) the material is patently offensive under the law prohiiting oscenity, and (") ta%en as a whole, the
material must lac% serious redeeming artistic, literary, political or scientific value.
(12) .reedo" o5 'sso#iation
=aws that prohiit or punish group memership must meet strict scrutiny. To punish group memership, the
government must prove that the person (1) actively affiliated with the group, (2) %nowing of its illegal activities, (")
with the specific intent of furthering those illegal activities.
(13) 0he .ree )6er#ise Clause
The 'ree 3$ercise &lause prohiits the state from imposing restrictions on someone on the asis of the person!s
religious eliefs. The state may impose a restriction if it necessary to achieve a compelling state interest.
(owever, the 'ree 3$ercise &lause cannot e used to challenge a neutral law of general applicaility
3
(14) 0he )sta-lish"ent Clause
The 3stalishment &lause prohiits laws respecting the estalishment of religion. If government regulation or
activity gives preference to one religious sect over another, it is invalid unless it is narrowly tailored to serve a
compelling state interest.
If a government regulation or action contains no sect preference, it is valid under the 3stalishment &lause if (1) it
has a secular purpose, (2) it neither advances nor inhiits religion, and (") it does produce e$cessive governmental
entanglement with religion.
(1) 0a7ing
The government may ta%e property, though the power of eminent domain, ut only if (1) it does so for the pulic
use, and (2) it provides just compensation to the owner. 1hysical ta%ings must meet this test, as must use
restrictions which deprive the owner of all economic value.
(1$) Contra#ts
The &ontracts &lause prohiits state or local interference with e$isting contracts. Interference with government
contracts must meet strict scrutiny. Interference with private contracts must meet intermediate scrutiny.
(1&) State 0a6ation
/here state ta$ation laws conflict with federal laws, the state laws are preempted y the *upremacy &lause.
5iscriminatory ta$es are invalid under the &ommerce &lause. /here a state ta$ law is not preempted and is not
discriminatory, it will e upheld if (1) there is a sustantial ne$us etween the activity and the state, and (2) state ta$
on interstate usinesses must e fairly apportioned.
(1() '##ess to Courts
A state must waive court filing fees imposed on indigents when the imposition of a fee would deny a fundament
right to the indigent. The inaility to pay a fee cannot e the sole asis upon which a person is deprived of a
fundamental constitutional right. (;aises e4ual protection issue 7 discrimination ased on wealth> ut note, access
to courts is not a fundamental right).
4