Constitutional Law Outline

I. Federal Action
Must be a governmental action for the Constitution to apply

A. Does the federal court have the power to decide the case?
1. Congressional limits on jurisdiction
a. The Court only has the power to decide cases
b. Types of SCTOUS Jx
i. Original Jurisdiction
A. Ambassadors
B. Other public Ministers and Consuls
C. State v. State controversies
ii. Appellate Jurisdiction
A. This is at the Courts discretion
B. May hear appeals from state supreme courts
C. Cases involving
1. Admiralty
2. Federal Questions
3. State v. State
4. Diversity
5. State v. foreign citizen
D. Any case arising under the Constitution
1. Judicial powers should arise under case arising under the
Constitution
2. Any case where someone asserts that there constitutional
rights have been violated-the Court has jx
3. If it is a conflict between statute and Constitution, the
Court has the authority to declare the statute
unconstitutional
E. Writ of Mandamus
1. This is an order compelling the government or one of its
agents to do something
c. Congress can limit the Court and federal jx, and it may NOT be expanded
beyond what the constitution allows
i. These are usually compelling and controversial circumstances regarding
whether Congress has the power to deny the federal courts the
power to
hear specific types of cases
ii. The purpose of jx stripping is to achieve a chance in the substantive
law by a procedural device
A. Congress can take away jx, but they cannot overrule SCTOUS

2. Justiciability: What matters the federal courts can hear

a. Advisory Opinion?
i. The federal courts cannot issue advisory opinions due to the separation
of powers
ii. To avoid being an advisory opinion:
A. There must be an actual dispute between adverse litigants
b. Standing?
i. Test:
A. You must have suffered or are in eminent danger of
suffering an injury to a legal right
1. Either a recognized legal right
2. A specific grievance, like an individual liberty
3. Statutory Rights
4. Something that the court likes
B. You have to be suing the person that is causing the injury
1. There must be a clear link between the actions
C. You must be asking for a remedy that the court can give you
1. Money can be redressed
2. If not money, can the court redress the problem?
ii. There is no standing for a generalized grievance
A. Exception: Establishment Clause
iii. A third party is usually barred from bringing a claim unless:
A. If the 3rd party is unlikely to be able to sue
1. There are substantial obstacles to the 3rd party asserting
their rights
2. Reason to believe that the advocate will represent the
interests of the 3rd party
B. Also: associations
1. Must be able to sue in their own right
2. May sue on injuries to the entity/organization or as a
member
3. Members must be affected in a tangible way
C. There is a close relationship between the and the 3rd party
1. They are part of the 3rd partys constitutionally protected
activity
2. Examples
a. Doctors for patients
b. Vendors for customers
c. Schools for parents
D. Overbreath Doctrine
1. Permits a person to challenge a statute on the ground that
it violates the 1st Amendment rights of 3rd parties not before
the court, even if the law is constitutional as applied to
2. Must violate 1st amendment
3. 3rd party represented by

c. Mootness?
i. Doctrine of standing in a timeframe
ii. There must be an actual controversy
iii. The personal interest must exist from start to finish
iv. Exceptions
A. Wrongs Capable of Repetition yet Evading Review
1. Reasonable chance injury can happen again to
2. Injury inherently limited in duration
B. Voluntary Cessation
1. The government voluntarily ceases the allegedly
improper behavior
a. Statutory change
b. Court order moot once there is no chance the
behavior will resume
d. Ripeness?
i. Centers on whether the injury has occurred yet, is it too speculative?
ii. Test:
A. The hardship to the parties for withholding consent
1. Is there a high probability of harm?
2. Are there collateral injuries?
3. Is there a reasonable threat of specific harm?
B. The fitness of the issue for judicial decision making
e. Political Question?
i. The Court does not address issues that are political questions
ii. Examples
A. Foreign Policy
B. Impeachment

B. Assuming the Court has the power to decide the case, is there a
constitutional source of power for the federal legislation that is being
challenged?
1. Possible sources of power
a. Commerce Power?
i. Focus of much of the decisions involving the scope of federal power
ii. Congress may regulate:
A. Channels of interstate commerce
B. The instrumentalities of Interstate commerce
1. Vehicles, shipping
C. Can regulate intrastate if:
1. Test:
a. there a rational connection to interstate
commerce?
b. Economic in nature

i. What is the regulation really intending to

regulate?
D. Does not apply to situations that are non-economic in
nature
1. Lopez: guns near schools
2. Rape laws
b. Taxation and Spending Power?
i. Congress has broad powers in this area
A. Can tax for the general welfare so long as it does not violate
other constitutional provisions
ii. Is it a tax or a criminal penalty?
iii. Congress may place conditions on state grants
A. If they are clearly stated
B. Have some relationship to the purpose of the spending program
C. Congress cannot force, but can compel state action
D. This is a way to be able to regulate things that they cannot
normally regulate
iv. Limits
A. 10th Amendment
1. If Congress specifies a law that does apply to the states,
it may be struck down
a. Any law that applies exclusively to state or local
government
b. Any law that commandeers state or local
governments
th
B. 11 Amendment
1. The federal government cannot make the states liable to
others under the power of sovereign immunity
c. War Power?
i. Congress has the express power to declare war, create/regulate armed
forces, provide for a general defense
A. Implied powers to prepare for war
ii. If challenged, they are generally dismissed as political questions
iii. Only Congress may declare war
CIVIL RIGHTS LEGISLATION
e. 14th Amendment, Section 5?
i. This is a regulatory power of Congress
ii. Congress can commandeer state governments under the 14th
amendment
A. This power is not subject to the 10th and 11th amendment
iii. There is a right to remedy and prevent Constitutional violations
iv. To enact legislation, Congress must show:
A. There is a pattern of constitutional violations
1. EITHER equal protection OR Due process violations

B. Legislation is congruent and proportional to the violations it is

trying to stop
C. Legislation applies only to state governments, not to private
conduct
v. This is the only way to enact this type of legislation to get around
sovereign immunity
f. 13th Amendment, Section 2?
i. Prohibits slavery and involuntary servitude
A. The only thing that deals directly with regulation of individuals
B. Congress can enact legislation to this end
ii. Congress has the authority to create a civil cause of action for a statute
of people conspiring to violate civil rights
iii. Congress can apply the 13th to private entities as part of its authority to
eliminate slavery
iv. Test:
A. Rationally determine what are the badges and incidents of
slavery?
B. If present, has authority to regulate
g. 15th Amendment, Section 2?
i. No one can have their rights denied or abridged based on their race or
color
h. Other?
i. Congress has the power to regulate immigration and citizenship
ii. Congress must approve treaties with a 2/3s vote
iii. Domestic Affairs
A. Post offices
B. Copyrights and patents
C. Govern interstate compacts
D. Bankruptcy
E. Create lower federal courts
2. Assuming a source of power, has the power been properly exercised?
a. Separation of Powerswas the law properly enacted; if executive branch,
is it acting within its powers
i. Generally:
A. Congress may:
1. Make laws
2. Declare War
3. Ratify treaties
4. Approve some presidential appointments
5. Can overturn the presidential veto
6. Delegate authority to administrative agencies or
president
7. Impeach president, VP, all civil officers for treason,
bribery, high crimes and misdemeanors

B. President may:
1. Execute laws
2. Represent country in foreign policy
3. Formulate treaties and executive agreements
4. Appoint and remove administrative officials
C. Courts may:
1. Decide cases
2. Interpret the law
ii. Congress and law-making power
A. Congress can delegate their power to administrative agencies
1. There must be some standard/ intelligible
principles/standards to guide the agencys exercise
of
discretion
2. Nothing has ever been struck down
3. Does not require any specificity
B. The legislative veto is unconstitutional
1. Congress can only make laws
2. Congress CAN overturn agency decisions as long as
there is bicameralism and presentment
3. Cannot delegate executive powers to itself or agents
4. Congress does control the purse strings of administrative
agencies
iii. Executive Powers
A. Generally
1. Not clearly defined, four approaches:
2. There is NO inherent presidential power
a. President can only act pursuant to express or
clearly implied statutory authority
3. The president can act without express statutory or
constitutional authority so long as the president is
not
usurping the powers of another branch
4. Legislative accountability
a. The president can take any action that is not
prohibited by the Constitution or a statute
5. The president has broad inherent authority
B. Veto
1. The line item veto is unconstitutional
a. This would allow a president to veto particular
parts of appropriation bills while allowing
the rest
to go into effect
2. Can do an all or nothing veto
C. Appointment and Removal
1. Appointment Power
a. The president alone appts ambassadors and
SCOTUS
b. Principle v. Inferior Officers

i. Principle Officers must be appointed by

the president
ii. Their boss is the president
iii. Must be approved by the senate
iv. Inferior Officers
A. Congress can appoint inferior
officers
B. Can vest this appointment power
in the president, department
heads
and the courts
C. Can appoint independent counsel
c. Congress may not give appointment power to
itself or its officers
i. Cannot appoint people to the FEC
ii. Can appoint investigative and informative
nature staff
2. Removal Power
a. The president can remove people
b. Congress can limit removal if
i. If it is an office where independence for
the president is desirable
-Are there good reasons why the
office should be independent
of the
president?
ii. If the law does not prohibit removal, but
it can instead limit removal to
instances of
good cause
-Congress cannot give itself the sole
power to remove an
executive
official
c. Judiciary may limit removal even in absences of a
statutory provision
d. Independent Regulatory Agencies:
i. Congress can limit removal to situations
where there is just cause for firing
e. Special prosecutors can only be removed for
good cause
f. Congress cannot grant itself power to remove
executive officials, but may delegate how
much
removal power
D. Executive Privilege
1. This is the presidents ability to have confidential
conversations with his advisors and not have to disclose
them
2. The claim of Executive Privilege is presumptively valid
if made by the president

3. It is not an absolute power

a. Its scope is determined by the Court
4. It must yield to important countervailing interests when
the need for disclosure is sufficiently great
E. Immunity
1. It is unsettled if a president can be criminally prosecuted
while in office or if the only remedy is impeachment and
removal
2. A president cannot be sued for money damages or
injunctions while in office
3. The president can be sued for things he did before being
in office while he is in office
4. Policy:
a. The president needs to focus on being president
5. Other executive officials
a. They have qualified (good faith immunity) when
performing legislative acts
b. Unless they violate a clearly established right that
a reasonable person would know
F. Foreign Policy
1. Treaties
a. Requires 2/3 vote by senate
b. If it conflicts with a fed statute, last one in time
controls
c. Treaties cannot be challenged as violating the 10th
d. The president can rescind treaties since the Court
will not agree to anything as it is a political
question
2. Executive Agreements
a. This has the same effect as a treaty
b. Does not require the approval of Congress
c. Does not allow the president to take domestic
action
d. Lasts as long as the presidency
e. If it is inherently domestic, there is not much that
could be done since it would be dismissed as
a
political question
G. War Powers
1. Challenges to the Presidents use of troops would be
dismissed as a political question
2. Declaring and making war
a. President has power to repel sudden attack, to
make war and to control disposition of the
armed
forces
b. War Powers resolution

3. Congress has the express power to declare war,

create/regulate armed forces, and provide for a
general
defense
H. Impeachment
1. The Court has generally considered impeachment to be a
nonjusticable political question
2. Two major issues
a. What are high crimes and misdemeanors?
b. What procedures must be followed when there is
an impeachment and removal proceeding?
3. Process starts in House, then tried in the Senate
a. Requires 2/3s vote

C. Assuming that the federal government has properly exercised

constitutional authority, is there an applicable limit on congressional
authority?
1. Is a Federal Action an unconstitutional violation of State Sovereignty?
a. Generally
i. State have inherent police power to act for the health, morals and well
being of their citizens
ii. Federalism
A. There is more freedom with 2 governments instead of 1
B. The Federal government may only exercise powers delegated in
the Constitution
iii. Congress can Tax, Spend and Borrow
A. If it is directly regulating people its power is much more
restricted
th
b. 10 amendment
i. Feds cant direct state action
ii. All non-delegated powers are reserved for the States or the people
A. The limit on the Commerce Power
I. If there is a federal regulatory law, presumption that it
does not apply to state or local governments
II. Unless there is a Clear Congressional Intent that it was
to Apply to the States
a. Setting Standards to state and local governments
b. Attaching strings to grants
c. Forcing a state agent to enforce Federal
law
d. The law must clearly be articulated as applying to
the states
B. If the law applies to the states
I. Restrictions
a. Congress cannot enact a law that just applies to
states
b. Statutes of General Applicability are ok
1. If law applies to everyone
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c. The federal government cannot commandeer the

State government
2. Feds can restrict funds so long as it is not a penalty
i. Is the financial inducement offered by Congress
so coercive as to compel the State to act
accordingly?
A. So Coercive
I. Is it a punishment?
II. Is Congress merely pretextually
framing a punishment as a
reward?
III. Is it an initial offer of
funds/financial inducement or
government cutting funding
state would otherwise

is the
that the
receive?

ii. Is the proposed funding a financial inducement or

a punishment?
C. If it violates the 10th amendment, it may still be upheld under
the Commerce Clause
c. 11th amendment
i. Generally
A. Sovereign immunity
B. Dictates classes that cannot be sued
I. States, State Agencies (Departments)
II. Local governments functioning as a conduit of the State
ii. When it does apply?
A. Federal Courts
B. State Courts
C. Federal Agencies
iii. What s are barred by sovereign immunity?
A. Citizens of the same or other states (cannot sue state)
B. States
iv. Sovereign Immunity is larger than the 11th amendment allows
A. The Court has declared that it is something inherent in the
Constitution and existed before the constitution
B. The state can still assert SI even if the is only seeking
injunctive relief
v. When does Sovereign Immunity NOT apply?
A. Legislation enacted pursuant to 13th, 14th, or 15th amendment
I. Individuals may recover money damages against the state
if :
a. There is a pattern of discrimination by the
States which violate the 14th
amendment(only real
way around SI)

10

their

b. There is a proportional and congruent remedy

imposed by Congress
B. US governments and States can sue another State
I. Exception: State must be protecting its own interest
a. State cannot sue to collect debts of its own
citizens/will not allow circumvention of 11th
amendment by allowing states to litigate
citizens claims
C. Admiralty
D. State Officials can be sued for injunctive relief
I. Ultimate effect of 11th amendment-no money damages
II. There are specific individuals that can be held liable,
prison wardens, etc.
E. City, School Boards, County governments-if not acting as the
State
F. Waiver: State may waive SI by statute or other clear exception
2. Civil rights
a. EQUAL PROTECTION:
i. Generally
A. 14th amendment guarantees that no state shall deny to any
person equal protection of the laws
B. If a law classifies people based on who they are, the law must
meet the appropriate test
I. Law may be overinclusive/underinclusive
a. Too few or too many
ii. Test:
A. Is there a group based classification?
I. How is the government distinguishing between people?
II. Classification on its face?
a. Clear from language of the law
III. Classification in its intent?
a. Must show purposeful discrimination
b. Discrimination must be a motivating factor
c. If it is based on choices more likely to pass equal
protection
d. If it is passed on inherent characteristics, problem
IV. Mere discriminatory impact does not qualify
B. If there is a group based classification, which level of
scrutiny applies?
I. Strict Scrutiny
a. The burden is on the government
b. Test
1. There is a compelling state interest
2. The government action is narrowly
tailored to that interest

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a. The law is necessary to achieve

that interest
b. There is no less burdensome
alternative available to
interest
c. Things that are always SS
1. Race
2. Religion
3. National Origin
II. Intermediate Scrutiny
a. This test is the middle ground
b. Test
1. Is there an important governmental
interest
2. Is the government action substantially
related to that Interest?
c. Requires and exceedingly persuasive justification
d. Includes
1. Gender
2. Non-marital children
3. Alienage
III. Rational Basis
a. This is the minimum level of scrutiny that the
Court will apply
b. Test
1. As long as there is a rational basis for the
law, it does not violate Equal Protection
c. Court will overturn the law only if it leads to
animus and invidious discrimination
1. Law attacks a group
2. Based on a groups immutable
characteristics
3. Court needs to be totally offended by the
law

achieve that

iii. Race
A. Test
I. Is there a racial classification?
a. Does it discriminate on its face?
b. Did the government purposefully intend to
classify individuals based on their race?
1. There must be intent and actual
discrimination
2. Inaction is not discrimination
II. If so, does it meet strict scrutiny?
a. Is there intent based on the facts?

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b. IS there a compelling state interest that is

narrowly tailored?
1. CSI: Remedying past discrimination
2. NT: Is it the least intrusive measure to
advance the interest
B. Permissible Race Consciousness
I. Remedying Past Discrimination
a. Must be shown by the same and must be past
proven racial discrimination
b. Must take race into account only by what is
necessary to fix the problem
II. Affirmative Action
a. Diversity in education is a compelling state
interest
b. Must be examined in a holistic manner
c. Cannot arbitrarily give extra points
iv. Gender
A. Test
I. Is there a gender based classification?
a. Does it separate people by gender?
b. Is the law based on stereotypes?
c. Classification on:
1. Its face?
2. As applied with an intent to discriminate?
II. Does it meet the appropriate level of scrutiny?
a. Intermediate level of scrutiny
1. Important government objectives
2. The law must be substantially related to
those objectives
3. Exceedingly persuasive justification
B. Permissible justifications
I. Affirmative Action of Women is fine
a. Remedying past discrimination
II. Governmental considerations for helping men are not ok
III. The Court is generally deferential to the military
IV. Economic discrimination is NOT allowed or laws based
on the womans role in the family and home
V. You can have some gender classifications based on
biological differences
v. Alienage
A. State Governments
I. There is a presumption of SS
II. Preemption applies to the States in this Area
a. Since it is immigration/naturalization/foreign
policy

13

III. If the law is NOT preempted

a. Strict Scrutiny
1. Presumption
b. Rational Basis
1. If it is a law regarding Self Governance
and the Democratic Process
A. Teachers, judges
B. Not: notary public
C. It is NT to those who participate
directly in the formulation,
execution, or review
of broad public
policy and hence
perform functions
that go to the heart of
representative
government
B. Federal Government
I. SS
a. Congress can make laws in this area
b. If it is an administrative agency, they are subject
to SS
vi. Non-marital Children
A. Test
I. Intermediate Scrutiny
a. Is there an important interest served?
b. Is the law substantially related to that goal?
B. It is unfair to penalize the children for the actions of their parents
C. Three Principles
I. Laws that provide benefits to marital children but not nonmarital children are always unconstitutional
II. Laws that provide a benefit to some non-marital children are
evaluated on a case by case basis under IS
III. Laws that create statutes of limitation on the time to allow nonmarital children to be heard
a. Must be substantially related to the states interest in
protecting the fathers from false claims
vii. More Rational Basis
A. Age Discrimination
B. Wealth Discrimination
I. Poll taxes are illegal
II. Poverty is not a suspect class since it can change
C. Discrimination Due to a Disability
I. The ADA offers protection in this area
D. Sexual Orientation
I. Still not completely settled
b. DUE PROCESS:
i. Procedural Due Process

14

ii. Substantive Due Process: (Fundamental Rights)

These rights are protected by both Equal Protection and Due Process
For DP: Is the governments interference justified by a sufficient
purpose?
A. Family:
I. Marriage
a. The right to marry is a basic one
b. Cannot prevent interracial marriages
c. You cannot have any sort of road blocks to getting a
marriage license
1. Unconstitutional to make someone be up to date
on child support
d. Prisoners have a right to get married
e. Social Security
1. Disabled children can lose it when they get
married
2. Divorced widow/ers can lose benefits if they
remarry
II. Children
a. Parents have a fundamental right to their children
b. If the State seeks to terminate custody, there must be a
compelling reason to do so
III. Unmarried Fathers
a. If a father shows no interest in his child, he may lose
rights to it
b. Even if a father is involved in the life of the child, if the
mother is married to someone else, the Court allows for an
irrebuttable presumption that the child is of the husband
c. The Court uses tradition as the major reason for this
IV. Raising Children
a. Parents have a right to raise their children how they want
b. The State can only interfere if it is necessary to protect
the child
c. Great deference is given to parents
d. There is some protection to grandparents to be able to
see their children
V. Living Together
a. There is a right to keep the family together
b. However, the protection usually only extends to people
that are related to each other
B. Reproductive Autonomy
I. The right to procreate is fundamental
II. Access to contraceptives is viewed as a right to privacy
issue
III. Abortion
a. There is a right to a pre-viability abortion

15

1. After this period it is ok only if the life of

the mother is in danger
2. The government may not place an undue burden
that creates a substantial obstacle
A. A 24 hour waiting period is fine
B. State does not need to fund abortions or
use government facilities to obtain
one
3. Parental notifications
A. ONLY OK IF:
i. The woman is a minor
ii. There is a bypass procedure
a. Usually judge who
decides if the procedure is in
the best interests of

question is

the child
C. Sexual Orientation and Activity
I. Homosexuals can engage in conduct of their choosing
II. This is a right to privacy issue
III. Also a right from unreasonable government intrusion
IV. Test
a. Does the law meet IS? (Yes, gender)
b. Is the law because of animus?
a. Look to intent of the law
D. Medical Care Decisions
I. There is a right to refuse unwanted medical decisions
a. To refuse treatment
b. To keep the government out of certain established
medical procedures
c. There is NOT a right to commit suicide
d. The State can require clear and convincing evidence of
the persons consent re decisions if the person in
not competent to make them
II. If it is an invasive procedure, you can refuse it
a. Fluoridating water is not restrictive
III. The government does not have to provide medical services
unless
a. You are in government custody
b. The government created the danger
IV. The State may prevent family members from terminating
treatment for each other ?
a. The right belongs to the individual
E. Travel
I. There is a fundamental right to interstate movement
II. Issue: Doest the classification penalize or significantly burden
the right to travel?

16

a. The State may not:

1. Put up barriers
2. Discriminate against person on the basis of how
long they have been living in the state
b. If it does SS applies
III. This right involves the DCC and P&I
IV. Foreign Travel is SS
V. The State may not discriminate based on length of residence
VI. If the benefits are portable, the State can require Good Faith
residency
VII. Divorce
a. You can make someone wait to divorce
VIII. States can prevent criminals from leaving
IX. Durational Residency Requirement
a. SS applies if a person must live in the jx for benefits to
kick in
1. Medical care, welfare
2. 50 days to vote is fine
3. One year for divorce is fine
b. Look to see if all residents benefit or just those who have
been in the area for a specified time
c. Must be able to change their status if someone moves to
the area
1. Cannot be a permanent segregation
X. A State may favor their residents, subject to the Commerce
Clause
a. Can be residents v. nonresidents
1. Cannot distinguish between classes of residents
F. Voting
I. This is essential to a democracy
II. In general:
a. Elections are required for president and Congress
b. If a state has an election, there is a right to vote in it
c. You cannot limit voting to property owners
1. OK only for limited elections (H20 board)
III. There is a right to have each vote count
a. One person, one vote
1. Does not apply to the feds
b. Gerrymandering: Redrawing lines to favor one group
over the other
IV. To show a violation
a. There must be intentional discrimination against an
identifiable political group
b. There must be an actual discriminatory effect on that
group
V. There is a right to run for office and be on the ballot

17

a. SS applied if there are substantial barriers to ballot

access
b. A threshold showing of support is not a substantial
barrier
VI. Political Parties
a. If there is substantial interference with ballot access, SS
applies
b. Open primaries are unconstitutional
c. Primary requirements
1. 18 mos is fine
2. 2 years is too much
G. Education
I. This is NOT a fundamental right
II. If a law gives free public education to citizens, it is an Equal
Protection violation
iii. Test
A. If it is found to be a fundamental right (one of the above rights)
then Strict Scrutiny is applied
I. Test
a. Is there a fundamental right?
b. Is there a direct and substantial restriction?
c. Is there a compelling government reason to restrict that
right?
d. Is the governments proposed statute Narrowly tailored?
B. Otherwise, it receives Rational Basis review
c. Freedom of speech
i. Is the government acting as a speaker, proprietor or administrator or are
they regulating/censoring what is being said?
A. Is the government interfering with the groups message?
ii. If the governing is regulating:
A. Is there a permissible target of the regulation?
I. Time, Place or Manner restrictions
a. Intermediate scrutiny
b. The government is saying that you can or cannot do
something
c. Is the government intentionally regulating something?
1. It can only be TPM if it is content neutral
II. Unprotected Content
a. Incitement
1. Intended to produce imminent lawless action
2. Likely to produce imminent lawless action
b. Fighting Words
1. Words that by their very nature will tend to incite
an immediate breach of the peace

18

have a
to

reasonable

to the
must
way

2. Must be a direct insult aimed at someone in

particular
c. Provocation
1. Speech likely to cause imminent violence on the
speaker
2. The police have an obligation to not
unnecessarily stop the speech unless they
good faith reasonable belief that they need

d. Assault
1. Speaker intended speech to strike fear of
imminent harm to as understood by a
person
e. Obscenity
1. Possession in the home cannot be stopped
2. Def: Speech that the average person using
community standards would find to appeal
prurient interest
3. Must show or describe sexual conduct that is
mentioned in the statute in question and it
show the conduct in a patently offensive
4. Taken as a whole must lack serious redeeming
artistic, literary or scientific value
f. Child Pornography
1. This is damaging to children
2. Includes any sort of sexual acts with children
3. If there are no real minors being used, then it is
protected speech
g. False or Misleading Commercial Speech
1. Restricted if an unlawful product
2. When it says one thing but does not do it
A. 40 mph when actually 11
3. To regulate truthful speech there must be
A. Substantial interest
B. Regulation is substantially related to that
interest
III. Viewpoint Discrimination
a. This is NEVER permissible
IV. If it is content based restriction:
a. Strict Scrutiny applies
b. Almost always found to be not constitutional
B. If the target is permissible, is the speech fit/constitutional?

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I. Time Place Manner

a. Intermediate Scrutiny (closer to rational basis)
II. If unprotected content
a. Compelling State interest
b. Narrowly tailored
1. Can ONLY block the unprotected speech
2. If it blocks more, then struck down
III. If protected commercial speech
a. Intermediate scrutiny
IV. Attacks on the Fit of a regulation
a. Vague
1. A reasonable person cannot tell what is being
restricted
b. Too Broad
1. When it restricts too much speech
c. Too narrow
1. When it is censoring a viewpoint
V. Content Based
a. Strict Scrutiny
b. Almost always not allowed
iii. Are there any procedural restrictions?
A. Prior Restraints
I. This is an injunction against speech
a. Preemptive Strike
II. Require Heightened Strict Scrutiny
B. Licenses/ Permit Requirements
I. They are ok if there is no discretion involved
II. Must be first come, first serve
III. Must be a good reason
IV. Must have clear standards

the
openings

d. Freedom of Religion
i. Establishment Clause
A. Generally
I. There can be no state religion
II. One religion cannot be favored by another
III. It is more important to not have religion in the schools since
children are young and impressionable while adults can see
history for including prayer at things like legislative
B. Test
I. Is the primary purpose to advance:
a. One religion over another
b. Religion over non religion
II. Is the primary effect to advance:
a. On religion over another

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C. or

are

b. Religion over non religion

c. Must be neutal in the effect
I. However, this doesnt mean neutral in reality, is
there a problem when the school options are
public and you are Muslim?
III. Is there too much entanglement between the government and
religion
ii. Free Exercise
A. There is a violation if the Government intends to interfere with a
persons free exercise of religion
I. Standard: Is it neutral to all religions?
B. Locke v. Davey: State did not violate Free Exercise by refusing to
fund devotional theology instruction. Training and funding
different; one is more of a calling than the other

II. Analyzing the Constitutionality of a State Statute

A. Is the case justiciable?
1. See above analysis
B. No need to identify a constitutional source of power. State is sovereign
C. Is there a Limit on State Power?
1. Privileges & Immunities Clause
a. Article IV
b. Only concerned with individuals, not businesses or aliens
i. The citizens of each state shall be entitled to all of the privileges
and immunities of citizens
c. States cannot discriminate against out of staters
d. TEST
i. Has the State discriminated against out of staters in their
A. Fundamental Constitutional Rights
I. Must have meaningful access to courts
II. Must be able to dispose of property
III. Must have access to medical care
B. Economic Livelihood
I. Must be able to practice a trade or profession
II. States cannot mandate preferential hiring to in
staters
III. States cannot charge discriminatory licensing
fees
e. It is not absolute
f. Does NOT preclude discrimination against nonresidents where
i. There is a substantial reason for the difference in treatment
ii. The discrimination against nonresidents bears a substantial
relation to the states objective
A. Must be proved to be necessary to achieve a state
interest
2. Dormant Commerce Clause?

21

a. Generally
i. A restriction on a States ability to interfere with interstate
commerce
ii. Threshold: Doe the state or local law violate interstate
commerce?
A. Exceptions
I. Congressional approval
II. Market participant
a. A State may favor its own citizens in
dealing with government owned
business
and in receiving benefits
from government
programs
b. The State must be an actual participator
and not just a regulator in the market
in
question
iii. A law will be found to be discriminatory either if it facially
discriminates against out of staters or it is facially neutral
and is
deemed to have a discriminatory purpose or impact
A. The Court will uphold some highway laws
B. The Court will generally strike down laws that regulate
the out of state conduct of business
b. TESTS:
i. Does the State Impermissibly discriminate against interstate
commerce?
A. Is the law facially discriminatory?
B. Did the law have a discriminatory purpose?
I. Strict Scrutiny
a. Is there a compelling state interest?
b. Is the law narrowly tailored to achieve
that interest?
ii. Does the State action substantially burden interstate commerce?
A. Balance the burden against the needs of the state
B. Use if the law is not discriminatory
3. Supremacy Clause (Preemption)?
a. Generally
i. When federal law overrides state or local law
b. Issue: What is the Congressional intent?
i. It must be clear to find preemption
c. Three Kinds
i. Express
A. When federal law clearly overrides state or local law
B. Requires judicial interpretation as to scope and effect
ii. Conflict
A. When state and federal laws are in opposition to each
other

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B. Or State law stands as an obstacle to the

accomplishment and execution of the full purposes
and
objectives of Congress
D. Is there an applicable constitutional right?

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