Constitutional Law

NEGATIVE OR DORMANT COMMERCE CLAUSE

State can't discriminate or unreasonably burden interstate commerce, unless state is a buyer or seller

DORMANT COMMERCE CLAUSE & FACIALLY-NEUTRAL STATE LAW

Unconstitutional if it substantially interferes with interstate commerce & is without an important government interest

DORMANT COMMERCE CLAUSE & DUE PROCESS CLAUSE TEST

No fundamental right, so rational basis review

DORMANT COMMERCE CLAUSE & EQUAL PROTECTION CLAUSE TEST

If no suspect class or fundamental right, then rational basis review

DORMANT COMMERCE CLAUSE & PRIVILEGE & IMMUNITIES CLAUSE OF ARTICLE IV TEST

Discrimination against out-of-state business in fundamental matters related to citizenship

ESTABLISHMENT CLAUSE TEST (LEMON PEE)

1) Law must have a secular purpose
2) Effect of the law doesn't advance or inhibit religion
3) Law doesn't cause excessive entanglement with religion

FREE EXERCISE CLAUSE

1) No oaths or beliefs as condition of public employment
2) Government may not inquire into truth of belief
3) Government can ask about sincerity of belief

VAGUENESS DOCTRINE

Unconstitutional under the 1st Amendment if it doesn't give a reasonable person notice of what is prohibited

OVERBREATH DOCTRINE

Unconstitutional under the 1st Amendment if it prohibits substantially more expression than necessary

PRIOR RESTRAINTS DOCTRINE

Unconstitutional under the 1st Amendment if it enjoins speech before it is uttered

UNPROTECTED SPEECH (FIDO)

F = Fighting Words
I = Incitement to Imminent Violence
D = Defamation
O = Obscenity (Miller obscenity)

MILLER OBSCENITY (POINT OF VIEW)

1) Prurient interest, relative to community standards
2) Offensive sexual conduct
3) Valueless in a literary, artistic, political or scientific way

COMMERCIAL SPEECH (CENTRAL HUDSON TEST)

1) Can ban if illegal or misleading
2) Government can regulate truthful commercial speech if: (a) Substantial government interest; (b) Law directly advances interest; and (c) Reasonable fit between ends and means

CONTENT-NEUTRAL SPEECH

All speech is banned and law is applied without knowing what was said

CONTENT-BASED SPEECH

Speech regulated based on message or subject, where speech is viewpoint-neutral or viewpoint-based

TRADITIONAL PUBLIC FORUM

Place used for speech for "time immemorial", or intentionally opened for the purpose of expressive activity

LIMITED PUBLIC FORUM

Place created by the government for general speech, but limited to particular groups and topics

NON-PUBLIC FORUM

Government property that is not a public forum

TIME, PLACE & MANNER RESTRICTIONS

1) Narrowly tailored to serve an important state interest
2) Alternative opportunities for the speech to take place

PUBLIC FORUM
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CONTENT-BASED SPEECH

Unconstitutional, unless passes strict scrutiny review

NON-PUBLIC FORUM
+
CONTENT-BASED SPEECH

Constitutional if reasonable, considering the purpose of the property

LIMITED PUBLIC FORUM
+
CONTENT-BASED SPEECH (VIEWPOINT NEUTRAL)

Constitutional if reasonable, considering the purpose of the property

LIMITED PUBLIC FORUM
+
CONTENT-BASED SPEECH (VIEWPOINT BASED)

Unconstitutional, unless passes strict scrutiny review

PUBLIC FORUM
+
CONTENT-NEUTRAL SPEECH

Constitutional as a Time, Place & Manner Restriction

LIMITED PUBLIC FORUM
+
CONTENT-NEUTRAL SPEECH

Constitutional if reasonable, considering the purpose of the property

NON-PUBLIC FORUM
+
CONTENT-NEUTRAL SPEECH

Constitutional if reasonable, considering the purpose of the property

SUBSTANTIVE DUE PROCESS

Protects fundamental rights "implicit in the concept of ordered liberty

PROCEDURAL DUE PROCESS

Cant' deprive person of life, liberty, or property without notice & a hearing

5TH AND 14TH AMENDMENT DUE PROCESS

Cant' deprive person of life, liberty, or property without due process of law

FUNDAMENTAL RIGHTS
(BFP'S & TV'S Are Fundamental To Due Process)

Bodily Integrity
Family Matters
Procreation
Travel
Voting

4TH AMENDMENT SEARCH AND SEIZURE

Government searches prohibited unless based on probable cause

PRIVILEGE & IMMUNITIES CLAUSE OF ARTICLE IV

State can't deprive out of state citizens of basic rights of citizenship, but can give preferential treatment to its own citizens

PRIVILEGE & IMMUNITIES CLAUSE OF THE 14TH AMENDMENT

State can't deprive its citizens of federal rights

EX POST FACTO LAWS

Makes criminal what wasn't before
Increases the punishment after a crime was committed
Reduces the evidence previously needed for conviction

STRICT SCRUTINY

Government must show that law is necessary to achieve a compelling government interest

INTERMEDIATE SCRUTINY

Government must show that law is substantial to an important government interest

RATIONAL BASIS REVIEW (MINIMAL SCRUTINY)

Plaintiff must show that law lacks a rational basis and is unrelated to a legitimate state objective

CASES WHERE STRICT SCRUTINY APPLIES

1) Suspect Class: Race & National Origin
2) Fundamental Rights: BFPs & TVs

CASES WHERE INTERMEDIATE SCRUTINY APPLIES

1) Gender
2) Illegitimacy

11TH AMENDMENT

Prohibits citizens of one state or foreign country from suing another state

ABSTENTION

Federal Courts won't hear case while state case is still alive

RIPENESS

? must allege actual harm or the immediate threat of harm

MOOTNESS

Case must be alive throughout the case, including appeal, unless injury is capable of repetition & because of its nature, will evade review

ADEQUATE & INDEPENDENT STATE GROUNDS

SCOTUS won't review case with state & federal issues that rests on independent and adequate state grounds