Con Law- Charts

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swicks's version from 6-11-2012

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Rational Basis Test

Question

Answer

Means (RBT)

Rationally related

Ends (RBT)

Legitimate conceivable purpose

Least Restrictive
Analysis? (RBT)

No

Burden of Proof
(RBT)

Challenger

Statement (RBT)

Law must be rationally related to a legitimate government interest

Triggered by (RBT)

(1) Alienage classifications related to self-govt. and the democratic

process (2) Congressional regulation of
aliens (3) Age (4) Disability (5) Wealth (1) All other classifications
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Intermediate Scrutiny
Question

Answer

Means (IS)

Substantially related

Ends (IS)

Important actual purpose

Least Restrictive Analysis? (IS)

No

Burden of Proof (IS)

Government

Statement (IS)

Law must be substantially related to an important government purpose.

Triggered by (IS)

(1) Gender (2) Illegitimacy (3) Undocumented alien children

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Strict Scrutiny
Question

Answer

Means (SS)

Necessary

Ends (SS)

Compelling actual purpose

Least Restrictive Analysis?

(SS)

Yes

Burden of Proof (SS)

Government

Statement (SS)

Law must be necessary to achieve a compelling government purpose.

Triggered by (SS)

(1) Race (2) National Origin (3) Alienage (for states) (4) Travel (but not foreign
travel) (5) Voting
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Known Tests
Question

Answer

Right to marry

Strict Scrutiny

Right to procreate

Strict Scrutiny

Right to custody of children

Strict Scrutiny

Right to keep family together

Strict Scrutiny

Right to control raising of children

Strict Scrutiny

Right to purchase and use contraceptives

Strict Scrutiny

Right to travel (equal protection)

Strict Scrutiny

Right to vote (equal protection)

Strict Scrutiny

Freedom of speech (1A)

Strict Scrutiny

Freedom of association (1A)

Strict Scrutiny

Free exercise of religion (if the law is not a neutral law of general
applicability) (1A)

Strict Scrutiny

Abortion

Undue Burden

Right to practice a trade or profession

Not a fundamental right--Rational

Basis

Right to physician-assisted death

Not a fundamental right--Rational

Basis

Right to education

Not a fundamental right--Rational

Basis

Right to international travel

Not a fundamental right--Rational

Basis

Right to engage in private, adult, consensual homosexual activity

Level of scrutiny unknown

Right to refuse medical treatments

Level of scrutiny unknown

Right to possess firearms

Level of scrutiny unknown

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Commerce Clause
Question

Answer

What does it do?

(Commerce C.)

(1) Congress can pass laws that regulate the channels of interstate
commerce, (2) regulate the instrumentalities of interstate commerce and persons and
things in interstate commerce, (3) regulate activities that have a substantial effect on
interstate commerce.

If intrastate activity
(Commerce C.)

(1) Can regulate if economic or commercial activity & rational basis that Congress
could conclude that the activity in the aggregate substantially affects interstate
commerce (2) If its noncommercial/ noneconomic, cannot be regulated unless
congress can factually show a substantial effect on interstate commerce.

Who must follow

(Commerce C.)

Congress

Who does it cover?

Exceptions?
(Commerce C.)

Congress may prohibit private racial discrimination in activities that might have a
substantial effect on interstate commerce.

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Privileges and immunities clause of 14th Amendment

Question

Answer

What does it do? (Priv. 14th

Am.)

States may not deny their citizens the privileges or immunities of national
citizenship (basically for interstate travel now)

Who must follow (Priv. 14th

Am.)

Applies to state/local govt.

Who does it cover? Exceptions?

(Priv. 14th Am.)

For a states citizens. Does not cover corporations

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Due Process of 5th &14th Amendment

Question

Answer

What does it do?

(5th/14th Am.Proc.)

Fair process (notice & hearing) required for govt. to individually take a persons
life, liberty, or property. Only intentional (not negligent) deprivation of these rights
violated the Due Process Clause.

What does it do?

(5th/14th Am.Subst.)

If limits liberty of all persons. If fundamental right, use strict scrutiny; in all other
cases, use rational basis.
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Equal Protection of the 14th Amendment

Question

Answer

What does it do?

(Eq.P.14th)

If a person or class of persons is treated differently from others, then: (1) If fundamental
right or suspect classification: strict scrutiny. (2) If quasi-suspect class: intermediate
scrutiny. (3) If anything else: rational basis. (4) For intermediate & strict, have to show
discriminatory on face or discriminatory intent & impact.

Who must
follow?
(Eq.P.14th)

Applies only to state/local govt. (for fed., use due process).

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14th Amendment
Question

Answer

What does it do?

(14th)

Prevents states from depriving any person of life, liberty, or property without due
process and equal protection of law

Who must follow?

(14th)

Applies to states

Who does it cover?

Exceptions? (14th)

Congress can adopt appropriate legislation under section 5 to remedy already

recognized violations (need to point to a history/pattern of state violation & a
congruent and proportional (narrowly tailored) legislation)
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15th Amendment

Question

Answer

What does it do?

(15th)

Prevents both federal and state govts. from denying a citizen the right to vote on
account of race or color

Who must follow?

(15th)

Applies to fed & states

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13th Amendment
Question

Answer

What does it do?

(13th)

Prohibits slavery. Allows Congress to prohibit racially discriminatory action by anyone

(govt. or private citizen)
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Contract Clause
Question

Answer

What does it do? (Contact C.)

Prohibits states from enacting any law that retroactively impairs contract
rights

Who must follow? (Contact

C.)

Applies only to state/local govt.

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(for fed., use due process)

Question

Answer

Who does it cover?

Exceptions? (Contact
C.)

Private contracts get intermediate scrutiny (serves an important & legitimate

public interest and is reasonably and narrowly tailored means of promoting that
interest); public contracts get same test, but stricter scrutiny
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Bill of rights
Question

Answer

Who must follow? (BoR)

Applies to fed. govt.

Who does it cover? Exceptions? (BoR)

Almost all of its incorporated through the 14th Amendment

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Taking Clause
Question

Answer

What does it do? (Taking C.)

5th A: private property may not be taken for public use without just
compensation

Who must follow? (Taking

C.)

Fed. (& states through 14th)

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Dormant Commerce Clause :

Question

Answer

What does it do?

(DCC)

States are allowed to regulate local aspects of interstate commerce, but not if it
discriminates against or unduly burdens (balancing test, ct. will consider less restrictive
alternatives) interstate commerce.

Discriminatory
regs (DCC)

Almost always invalid. Exceptions: Important state interest (noneconomic, necessary),

state as market participant, traditional govt. function)

Who must follow

(DCC)

State/local govt.

Who does it
cover?
Exceptions?

(1) Congress may permit state regulations that would otherwise violate commerce
clause/prohibit regulations that would otherwise be okay (2) Aliens and corporations can
be Ps (3) does not require discrimination against out-of-staters in order to
apply (4)requires a burden on interstate commerce (5) exceptions: Congressional
approval and the market participant exception
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Privileges or Immunities Clause of Article IV

Question

Answer

What does it do?

(Priv.Art.IV)

(1) Prohibits discrimination by a state against nonresidents. (2) Protects

fundamental rights (commercial activities & fundamental liberties)

Who must follow

(Priv.Art.IV)

Applies to state/local govt.

Who does it cover?

Exceptions?
(Priv.Art.IV)

(1) For nonresidents of the state. (2) Does not cover aliens or
corporations. (3) The law may be valid if substantial justification & necessary (no
less restrictive means).(4) No exceptions.
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