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
+
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