Constitutional Law Outline
I.
Federal Judicial Power
a. Power over all “cases and controversies” (Article III)/Justiceability Doctrines
(applies to every federal court)
i. Standing (whether the plaintiff is the proper party to bring litigation)
1. Injury In Fact (has been injured or imminently will be injured)
a. Examples: Violations of common law rights (torts,
breaches of contract, invasion of property rights),
constitutional rights (violations of the establishment clause,
etc.), or statutory rights; Claims of aesthetic or
environmental injuries; Injury to economic interests
b. Plaintiffs may only assert injuries that they personally have
suffered (no third party standing), except that:
i. Third party standing is allowed if:
1. There is a “special relationship” between the
claimant and the third party (so that the
claimant can be trusted to represent the third
party’s interests) (e.g., physician-patient;
seller-buyer); and
2. It would be difficult, unlikely, or impossible
for the third party to challenge the
government action itself
a. Example: Criminal defendants have
third party standing to raise the rights
of prospective jurors to be free from
discrimination in the exercise of jury
selection
ii. An organization may sue for its members if:
1. There is an injury in fact to the members
that would give individual members a right
to sue on their own behalf;
2. The injuries to the members are related to
the organization’s purposes; and
3. Neither the nature of the claim nor the relief
requested requires participation of the
individual members
c. A plaintiff seeking injunctive or declarative relief must
show a likelihood of future harm
d. The grievance of the plaintiff cannot be generalized and
plaintiff cannot sue solely as a citizen or taxpayer interested
in having the government follow the law
i. Exception: Taxpayers have standing to challenge
government expenditures of money as violative of
the Establishment Clause
1. Does not include the right to challenge
government grants of property to religious
institutions
2. Causation
a. A causal connection between the injury and the conduct
complained of (i.e., injury is traceable to the challenged
conduct of the defendant and is not attributable to some
independent third party)
3. Redressability
a. A ruling favorable to the litigant would eliminate or
remedy the harm to him
ii. Ripeness (becomes an issue whenever a plaintiff seeks declaratory relief)
1. Courts can only decide concrete disputes between parties with
adverse interests and cannot issue advisory opinions, give abstract
legal advice, or decide hypothetical disputes
2. A plaintiff is not entitled to review of a law before it is enforced
(i.e., may not obtain a declaratory judgment), and a court will not
hear a case unless the plaintiff has been harmed or there is an
immediate threat of harm
a. Court will look to the hardship that will be suffered without
pre-enforcement review, the fitness of the issues, and the
record for judicial review
iii. Mootness
1. A moot dispute is one that has ended, or one in which the
plaintiff’s grievance has been resolved so that there is no longer
any dispute for the court to decide. When this happens, federal
courts no longer have authority to decide the case (lose subject
matter jurisdiction).
a. Exceptions (where cases will not be dismissed for
mootness):
i. Wrongs capable of repetition that evade review
1. Wrongs that will happen over and over to
the plaintiff, but that are over so quickly that
each injury cannot be reviewed while it is
still ongoing
ii. Voluntary cessation (if defendant voluntarily ceases
the offending action, but is free to resume it at any
time)
iii. Class Action Suits
1. If the named plaintiff’s claim becomes
moot, a class action will not be dismissed so
long as one member of the class has an
ongoing injury
iv. Political Question Doctrine (constitutional violations the federal courts
will not adjudicate because they are left to the political branches)
1. Cases under the “Republican Form of Government Clause” (clause
saying that where people elect representatives, those
representatives make the laws)
2. Challenges to the President’s conduct of foreign policy (conduct
regarding treaties with other countries, etc.)
3. Challenges to the impeachment and removal processes
b. Supreme Court Review
i. The Supreme Court can hear cases only after there has been a final
judgment of the highest court of a state, of a United States Court of
Appeals, or of a three-judge federal district court (final judgment rule)
ii. Ways a case can come to the Supreme Court on appeal
1. Writ of certiorari (court has complete discretion to grant or deny)
2. Where a statute specifically provides for appeal to the Supreme
Court (court is required to hear the case)
3. Where an appeal is sought from a decision of a “a three-judge
federal district court”
iii. Original and Exclusive Jurisdiction (only court that can hear the case)
1. Suits between state governments
iv. Rule Against Hearing Cases Where There Is an Independent and Adequate
State Law Ground of Decision
1. If a state court decision rests on two grounds (one under federal
law and one under state law), the state’s highest court gets the last
word on the state law ground and if the Supreme Court’s reversal
of the federal law ground will not change the result in the case, the
Supreme Court cannot hear it.
a. The Court can hear the case if a reversal on the federal
claim would change the result
c. Lower Federal Court Review
i. Principle of Sovereign Immunity
1. The 11th Amendment bars suits against states in federal court (state
governments cannot be named as defendants)
a. Limitations:
i. This immunity does not extend to:
1. Local government entities or political
subdivisions of the state; or
2. Any request for injunctive relief against the
state itself (e.g., to enjoin application of state
legislation)
2. Sovereign immunity bars suits against states in state courts or
federal agencies
a. Exceptions:
i. States may be sued:
1. When there is a specific and express waiver
(consent);
2. Pursuant to federal laws adopted under § 5
of the 14th Amendment (Congress may not
II.
authorize suits against states under any other
constitutional provisions)
3. By the federal government
b. Suits against state officers are allowed (i.e., for injunctive
relief; for money damages to be paid out of their own
pockets (but not out of the state treasury))
ii. Abstention (where lower federal courts have jurisdiction but don’t
exercise it)
1. Federal courts may not enjoin pending state court proceedings
d. Congress’ Power Over Federal Courts
i. Congress has the power to limit the appellate jurisdiction of the U.S.
Supreme Court (e.g., may expand or restrict the number and types of
lower court decisions that the Supreme Court may hear)
1. Limitations on this Power:
a. Congress may not restrict the original jurisdiction of the
Supreme Court;
b. Congress may not give the Supreme Court the right to
exercise jurisdiction over matters which are not “cases and
controversies” under Article III;
c. Congress may not eliminate all of the Supreme Court’s
appellate jurisdiction; and
d. Congress may violate any individual constitutional rights in
acting under this power
ii. Congress has the power to create the lower federal courts, and vest federal
judicial power (jurisdiction) in lower federal courts which it may “from
time to time ordain and establish”
1. Congress may also establish “inferior courts” and “legislative
courts” (including military tribunals) that are not actual Article III
courts (judges do not have lifetime tenure)
iii. The courts, not Congress, are empowered by the Constitution to determine
the constitutionality of laws (e.g., if the court determines that a violation
of equal protection rights has occurred and that remedial measures are
required, any attempt by Congress to interfere with the implementation of
the remedy would violate the Constitution)
Federal Legislative Power
a. Congress’ Ability to Act
i. No General Federal Police Power (unlike the states, who can do anything
which is not prohibited by the Constitution under a general police power)
1. Congress may only act under express or implied congressional
power given by the Constitution
a. Exception: Property Power (Article IV)
i. Congress does have the power to dispose of and
make all needful rules and regulations respecting
the territory or other property belonging to the
United States
1. This power allows Congress to regulate all
federal property, both real (buildings, post
offices, Indian reservations, military bases,
and the District of Columbia) and personal
(military vehicles, surplus food products,
and plants and animals on federal lands)
a. Federal government is free to
manage its property, even if this
works a hardship on persons doing
business on nearby private lands
b. In the District of Columbia
(Washington D.C.), Congress may
regulate for the health, safety, and
general welfare of the residents just
as a state government may exercise
the police power for the protection of
state residents
ii. Necessary and Proper Clause
1. Congress may enact all laws that are necessary and proper to carry
out its authority (meaning that Congress, in carrying out its
authority, may choose any means not prohibited by the
Constitution).
iii. Taxing and Spending Power (Article I spending power)
1. Congress may tax and spend for the general welfare (i.e., can
implement any tax to raise revenue and any program to expend that
revenue in order to serve the general welfare)
a. Any congressional spending program is almost always best
supported under the power to spend for the general welfare
b. Moreover, when the federal government grants money to a
recipient, the recipient must comply with all restrictions or
conditions attached to the grant (government can impose
conditions on the use of the funds)
2. The President does not have the right to “impound” or reduce
funds which Congress has expressly mandated must be spent
a. However, the President may withhold funds if Congress so
provides in the spending bill
iv. Commerce Clause
1. Congress may regulate commerce with foreign nations, Indian
tribes, and among the states
a. With regards to interstate commerce, Congress may:
i. Regulate the channels of interstate commerce (e.g.,
highways, waterways, Internet, etc.);
ii. Regulate the instrumentalities of interstate
commerce (e.g., trucks, telephones, Internet) and
persons or things in interstate commerce
(electricity, radio waves, cattle, people who travel
interstate)
iii. May regulate all activities which, in their
aggregate, have a substantial effect on the national
economy
1. When regulating an area of non-economic
intrastate activity (e.g., sexual activity, noncommercial activity), substantial effect on
interstate commerce cannot be based on
cumulative impact (the activity being
regulated must in fact directly affect
interstate commerce)
2. It is uncertain whether Congress may directly regulate, through its
Commerce Clause powers, the minimum drinking age (therefore, it
is incorrect to assume that the commerce power extends to this
type of regulation)
3. Congress may regulate the interest rates of the entire country
pursuant to its Commerce Clause powers
v. Powers Involving Foreign Relations
1. Congress has several enumerated powers over foreign commerce,
declaration of war, regulation of the armed forces, and other areas
of foreign relations
a. As a necessary and proper means of carrying out these
enumerated powers, Congress could rationally conclude
that criminal penalties were necessary to prevent
unauthorized individuals from negotiating with foreign
countries in relations to disputes with the U.S.
2. A federal law involving foreign relations is almost always best
supported by one or more of Congress’ powers over war, defense,
and foreign affairs
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vi. 10 Amendment
1. All powers not granted to the United States, nor prohibited to the
states, are reserved to the states or the people
a. Congress cannot compel state regulatory or legislative
action (cannot force them to make laws or administrate
federal mandates)
i. Limitations:
1. Congress can try to induce state action by
putting expressly stated conditions on grants
2. Congress can prohibit state governments
from engaging in harmful commercial
activities
vii. Section 5 of the 14th Amendment
1. Congress may not create new rights or expand the scope of rights.
a. However, Congress can act to prevent or remedy violations
of rights recognized by the courts, if such laws are
proportionate and congruent to remedying constitutional
violations (narrowly tailored)
viii. Investigation Power
1. Congress’ authority to conduct investigations (and ask questions)
only includes those areas or matters directly related to areas which
the Constitution allows it to legislate
a. This is so because there is no express power of Congress to
investigate, and it is only implicit in the Article I grant of
“legislative powers”
2. Included in this power is the power of Congress to appoint its own
members to investigative committees to assist in fact-finding and
proposing legislation (they just cannot exercise executive functions
like enforcing the law and prosecuting violations)
b. Delegation of Powers (Non-Delegation Doctrine)
i. Congress may delegate its powers to the executive branch or the judiciary
as long as:
1. The power delegated is one which Congress may delegate;
a. The Constitution specifically provides that congress may
not delegate the power to declare war, ratify treaties, or try
cases of impeachment)
2. The delegation contains at least some “intelligible principles” to
guide the delegation, such that a court could determine whether the
delegatee had exceeded the authority granted to him
ii. Congress cannot delegate the executive power (power to implement the
laws) or the judicial power to itself or its officers
1. Legislative Vetoes
a. For Congress to act (e.g., pass a law, overturn an executive
action), there must be:
i. Bicameralism (passage by both the House and the
Senate); and
ii. Presentment (giving the bill to the President to
either sign or veto)
1. If President vetoes, Congress can pass by
2/3 vote
iii. Exceptions (where one house of Congress can act
alone):
1. Initiations of impeachment of the President
by the House
2. Impeachment trials by the Senate
3. Approval of Presidential appointments by
the Senate
4. Ratification of treaties by the Senate
2. Line Item Vetoes
a. Where the President attempts to veto part of a bill while
signing the rest of it into law.
III.
b. These are unconstitutional because the President must
either sign the entire bill into law or veto the whole bill
Federal Executive Power (Article II)
a. Attorney General
i. As a principal officer of the Executive Branch, the Attorney General has
the power to decide whether to prosecute or not and Congress cannot
interfere with this (or other) core Executive Branch function(s) (doctrine
of separation of powers)
b. Executive Authority for Foreign Policy
i. Treaties (agreements between the US and a foreign country)
1. Must be negotiated by the President and ratified by the Senate
2. Treaties always prevail over conflicting state laws
3. Treaties prevail over conflicting federal laws only if adopted later
(the one adopted last in time prevails)
4. Treaties that conflict with the federal Constitution are invalid
ii. Executive Agreements (agreements between the US and a foreign country)
1. Must be signed by the President and the head of the foreign nation
(no Senate approval required)
2. Can be used for any purpose
3. Executive agreements prevail over conflicting state laws
4. Executive agreements never prevail over federal laws or the
federal Constitution
iii. President has broad powers as Commander-in-Chief to use American
troops in foreign countries (even if use is outrageous)
c. Executive Authority for Domestic Affairs
i. Appointment Power (cabinet level agencies & independent regulatory
agencies)
1. “Officers of the United States” (agency heads/key employees;
ambassadors; federal judges) are appointed by the President with
the advice and consent (confirmation) of the Senate
2. “Inferior officers” (those with limited duties; those who must act
within the scope of their jurisdiction; those who serve for a limited
term; etc.) can be appointed by the President alone, by the courts
alone, or by the heads of agencies/departments alone (Congress
may decide).
a. Independent Counsel/Special Prosecutor is an inferior
officer appointed by the Attorney General
3. Congress may not give itself or its officers the appointment power
a. However, if a court determines that Congress invalidly
appointed executive branch officers to an agency, the court
can determine that the resulting agency is merely a
congressional committee which can continue to investigate
and give advice to Congress (it just cannot exercise
executive functions like implementing the law and
prosecuting violations of it)
ii. Removal Power
IV.
1. Cabinet Level Agencies
a. President may remove without cause at his whim
2. Independent Regulatory Agencies
a. Congress may limit removal to where there is good
“cause,” but may not prohibit removal
iii. Impeachment and Removal
1. The President, Vice President, federal judges, and federal officers
can be impeached and removed from the office for treason or for
high crimes and misdemeanors
a. Impeachment (by the House) does not remove a person
from office. There must be a trial by the Senate. The
officer is removed only if the Senate convicts by 2/3 vote
iv. Immunity from Suit
1. The President has absolute immunity from civil suits seeking
money damages for anything done while in office, but there is no
immunity for acts carried out prior to taking office.
v. Presidential Privilege
1. The President has executive privilege for presidential
papers/memos and conversations with advisors, but this privilege
must yield to other important governmental interests (e.g., when
documents/conversations are needed as evidence for a criminal
trial)
vi. Pardon Power
1. The President has the power to pardon those accused or convicted
of federal crimes (not civil liability)
a. Exception:
i. President cannot pardon an officer’s crimes that
lead to an impeachment by the House
Federalism (limits on state/local government powers due to the existence of national
and state governments) (applies where there is a challenge to something a state has
done)
a. General Police Power (held by the states)
i. States can do anything which is not prohibited by the Constitution under a
general police power
ii. State/local regulations of public employees are valid so long as they are
within the state police power and do not violate any individual
constitutional rights
1. An oath requirement is rationally related to health, safety, and
general welfare of state residents and is valid, as long it is narrowly
tailored to avoid violation of the First Amendment (i.e., an oath
that only requires that the employee swear not to engage in
conduct which would be criminal or incompatible with the
position, swear to uphold and defend the federal/state laws or the
Constitution(s), and swear to oppose the overthrow of the
government through illegal force)
b. Preemption (Supremacy Clause of Article VI)
i. The Constitution, and laws and treaties made pursuant to it, are the
supreme law of the land
1. This means that if there is a conflict between federal law and
state/local law, federal law will prevail and state/local law is
preempted
ii. Express Preemption
1. When a federal statute specifically states that federal law is
exclusive in a given area, state/local laws are preempted
a. Anytime Congress has the authority to act, it can include
express preemption in its statutes
iii. Implied Preemption (preemption can be found even if the text of the law is
silent)
1. If federal and state/local laws are mutually exclusive (it is
impossible to comply with both laws simultaneously), federal law
preempts the state/local law
a. Exception:
i. States can set environmental standards that are
stricter than federal standards, unless Congress
specifically prohibits it
2. If a state/local law impedes the achievement of a federal objective,
the federal objective prevails and state/local law is preempted
3. If Congress has expressed a clear intent (through legislative
history, for example) to preempt state/local law, the federal law
will preempt state/local law
4. If there is a need for uniform enforcement on the subject such that
state or local regulation should not be allowed, federal law may
preempt state/local law
5. If the federal regulatory scheme is so pervasive and extensive that
no room is left for conflicting or even complementary state or local
law, federal law may preempt state/local law
iv. State Regulation and Taxing of Federal Activity
1. States may not directly tax federal activity
a. However, a state may impose indirect, non-discriminatory
taxes on the federal government (e.g., a state tax levied
against an independent contractor hired by the federal
government is valid, as long as the tax does not
discriminate against the federal government or its agents
and is levied against all contractors)
2. It is unconstitutional to pay a state tax out of the federal treasury
3. States cannot directly regulate the federal government if it puts a
significant burden on federal activity
a. Federal government does not have to comply with state
environmental laws, for example
c. Dormant Commerce Clause (“Negative Implications of the Commerce Clause”)
i. A state/local law is unconstitutional if it places an undue burden on
interstate commerce
1. This is true even if Congress has not acted in a specific area
(commerce power lies dormant)
ii. If a state/local law affects interstate commerce, but does not discriminate,
a balancing test is used to determine whether the law puts an undue
burden on interstate commerce:
1. Weigh the burdens on interstate commerce against the benefits
gained by the state. If the burdens outweigh the benefits, the law is
in violation of the dormant commerce clause
iii. If a state/local law burdens interstate commerce, and discriminates against
out-of-state citizens, the law will be struck down as a violation of the
Dormant Commerce Clause unless it is necessary to achieve an important
governmental purpose (heavy burden)
1. Example: The requirement that candidates for licensing must be
trained within the state is an undue burden on interstate commerce
because it discriminates against out of state citizens (who will be
less likely to travel to the state seeking jobs) and unduly burdens
interstate commerce (and insuring competency could be achieved
in much less burdensome ways such as requiring competency tests
or training sessions)
2. “Important governmental purpose”
a. Helping the state’s economy while harming the economies
of other states is not an important governmental objective
b. Outlawing the importation of a certain type of fish in order
to preserve natural resources in one state is an important
governmental purpose (only one found by the courts to
date)
3. “Necessary”
a. The state must show that it cannot achieve its important
purpose through any less discriminatory method
4. Exceptions:
a. If Congress approves the state/local law (through
enactment of a statute that permits exactly the same type of
state/local regulation, for example)
b. Market Participant Exception
i. State/local governments may prefer their own
citizens in receiving benefits from government
programs or in dealing with government-owned
businesses (e.g., state schools can charge more
tuition to out of state citizens than to state residents)
d. Privileges and Immunities Clause of Article IV
i. No state may deny citizens of other states of the privileges and immunities
it accords its own citizens (may not discriminate against non-residents as
to the “essential activities or basic rights” of national citizenship)
ii. State/local law may not discriminate against non-residents as to the
“essential activities or basic rights” of national citizenship (i.e., their
ability to earn their livelihood (meaning civil liberties or important
V.
economic activities), unless it is necessary to achieve an important
governmental purpose
1. If the discrimination is very minimal (e.g., states charges $5.00 fee
to out of state fishers), a challenge brought under this section
would be very weak
2. Corporations and aliens cannot challenge a law under the
Privileges and Immunities Clause of Article IV (must be a
“citizen”)
3. “Necessary”
a. Government must show it cannot achieve the objective
through less discriminatory means
e. Privileges and Immunities Clause of the 14th Amendment
i. Only applies to the right to travel among the states (such a narrow
construction that it has essentially been written out of the Constitution)
f. State Taxation of Interstate Commerce
i. States may not use their tax systems to help in-state businesses to the
detriment of out-of-state businesses
ii. State may only tax activities that have a substantial nexus to the state
iii. State taxation of interstate companies must be fairly apportioned (i.e., the
tax should be based on the extent of the taxable activity or property
present in the taxing state)
1. Example: Chooch is a resident of State A. It owns railroad cars
used in interstate commerce. The cars are in State A three months
of the year and in State B three months of the year. For a State B
property tax on the railroad cars to be valid, it must fairly
apportion the tax so that the cars will not be subjected to a similar
tax by State A, thus cumulating Chooch’s tax burden
g. Full Faith and Credit
i. Courts (federal and state) in one state must give full faith and credit to the
judgments of courts in another state, so long as:
1. The court that rendered the judgment had jurisdiction over the
parties and the subject matter
2. The judgment was on the merits
3. The judgment was final
Constitution’s Protection of Individual Liberties
a. Constitution Applies Only to Government Action (private action need not
comply)
i. Exceptions:
1. Congress, by statute, may apply constitutional norms to private
conduct
a. Congress can adopt statutes that prohibit private race
discrimination under the 13th Amendment (which states
people cannot own or be slaves)
i. The 13th Amendment is the only constitutional
provision that directly applies to private conduct
b. Congress can regulate private behavior under the
Commerce Clause (e.g., Private restaurants can be required
to serve patrons of every race because a lot of their supplies
come from other states and the cumulative effect of
discrimination by private restaurants would burden
interstate commerce)
c. Exception: Congress cannot use section 5 of the Fourteenth
Amendment to regulate private behavior (which provides
that Congress may not create new rights or expand the
scope of rights, but may act to prevent or remedy violations
of rights recognized by the courts).
2. A Private Entity Must Comply with the Constitution Where:
a. It is performing a task that has been traditionally and
exclusively performed by the government (e.g., companyowned towns) (Public Functions Exception)
i. Running a utility is not a task traditionally or
exclusively performed by the government
b. The government affirmatively authorizes, encourages, or
facilitates unconstitutional activity (Entanglement
Exception)
i. Examples of where the government would be
affirmatively authorizing, encouraging, or
facilitating unconstitutional activity: If a court
enforced a racially restrictive covenant; When the
government leases premises to a restaurant that
racially discriminates; When a state provides books
to schools that racially discriminate; and When a
private entity regulates interscholastic sports within
a state;
ii. Examples of where the government is not
authorizing, encouraging, or facilitating
unconstitutional activity (no state action): When a
private school that is over 99% funded by the
government fires a teacher for her speech
(government subsidy is insufficient for finding state
action); When the NCAA (made up of public
universities) orders the suspension of a basketball
coach at a state university; When a private club with
a state liquor license racially discriminates
b. Application of the Bill of Rights
i. Entire Bill of Rights applies directly to the federal government
ii. Portions of the Bill of Rights apply to state governments through
incorporation into the Due Process Clause of the 14th Amendment
1. Provisions that have not been deemed incorporated:
a. 2nd Amendment right to bear arms (states can adopt gun
control laws)
b. 3rd Amendment right to not have a soldier quartered in a
person’s home
c. 5th Amendment to grand jury indictments in criminal cases
d. 7th Amendment right to jury trial in civil cases
e. 8th Amendment right against excessive fines
i. The other parts of the 8th Amendment have been
incorporated, though (right against cruel and
unusual punishment)
VI.
c. Levels of Scrutiny
i. Rational Basis Test
1. A law is upheld if it is “rationally related to any legitimate
government purpose” (any conceivable purpose, even if not the
government’s actual purpose)
2. Challenger of the law has the burden of proof
ii. Intermediate Scrutiny
1. Law will be upheld “if it is substantially related to an important
governmental purpose” (government’s actual purpose is important)
a. “Substantially Related”
i. The means chosen must be narrowly tailored to
achieve the objective, but the government is not
required to use the least restrictive means available
2. Government has the burden of proof
iii. Strict Scrutiny (Compelling State Interest Test)
1. Law will be upheld “if it is necessary to achieve a compelling
governmental purpose” (government’s actual purpose is
compelling)
a. “Necessary”
i. The means chosen must be necessary to obtain the
governmental purpose, and the government is
required to use the least restrictive means available
(i.e., no less restrictive alternative could be used)
2. Government has the burden of proof
Procedural Due Process (procedures government must follow)
a. Has There Been a Deprivation of Life, Liberty, or Property? (If yes, government
must provide procedural due process; if no, government need not provide it)
i. Liberty Interests (found in state law or a constitutional provision other
than the Due Process Clause)
1. Freedom from bodily restraint
a. Those who are already in prison are only entitled to
procedural due process and a hearing if their conditions
change in some atypical extraordinary way
i. Being put in solitary confinement for thirty days
does not count as atypical
ii. Being put into a mental institution or given
psychotropic drugs is atypical
2. Right to protect your honor, good name, and integrity (not have
your reputation tarnished)
a. Stigma + (one must show harm to their reputation plus
some tangible loss
i. Example: Being labeled as a shoplifter isn’t enough
by itself. Must also show that you were forbidden
from shopping at a certain store or were denied a
job at a certain store as a result.
3. Other Liberty Rights: Freedom of speech (1st Amendment); right to
contract; right to engage in the common occupations of life; right
to acquire useful knowledge; right to marry, establish a home, and
bring up children; right to worship God according to the dictates of
one’s own conscience; right to enjoy those privileges long
recognized as essential to the orderly pursuit of happiness by free
men
ii. Property Interests (an entitlement to a continued receipt of a benefit
stemming from contract or state law)
1. Ownership of land or stock
2. Statutory Entitlements
a. Welfare; tenured professorships at public universities;
social security benefits; pension benefits; govt.
employment if contract allows termination only upon
“good cause;” right to free public education; contracts
(express or implied)
iii. Government negligence is not sufficient for a deprivation of due process.
There must be intentional government action or at least reckless action for
liability to exist
1. Exception: In emergency situations, the government is liable under
due process only if its conduct “shocks the conscious” (i.e.,
government officers acted with an intent to cause harm
iv. The government’s failure to protect people from privately inflicted harm
does not violate due process
b. What Procedures Are Required if There Has Been a Deprivation
i. Balance the:
1. Private interest involved and its importance;
2. Risk of error in existing procedures and the value of adding
additional procedures (ability of additional procedures to increase
the accuracy of the fact finding); and
3. Governmental interests involved (costs/burdens associated with
requiring more procedures; government objective)
ii. Special Rules for Certain Terminations:
1. Welfare Termination Rule:
a. Welfare recipients must have the opportunity to receive an
oral/face-to-face hearing before their benefits are
terminated
VII.
i. There is an interest in keeping benefits once one
becomes a recipient because benefits are relied
upon and termination can lead to starvation or
criminal activity
2. Social Security Benefits Rule
a. A post-termination hearing is sufficient because the
recipients are not in quite as bad of a situation as those who
are on welfare. They have other sources of income or
benefits (worker’s comp.), eligibility is not based on
income level, and the procedures for terminating benefits
are focused and elaborate.
3. When a school disciplines a student (by suspension, for example)
there must only be notice of the charges and an opportunity to
explain
4. Before a parent’s right to custody of their child can be terminated
there must be notice and a hearing
5. Punitive damage awards require jury instructions and judicial
review to ensure reasonableness and grossly excessive punitive
damages violate due process;
6. Except in exigent circumstances, pre-judgment attachment or
government seizure of assets must be preceded by notice and a
hearing (but when property is used in an illegal activity, the
government may seize it, even if the property’s owner is innocent)
Substantive Due Process (whether the government has an adequate reason for taking
away a person’s life, liberty, or property)
a. Economic Liberties (Constitution provides only limited protection)
i. Rational basis test is used to review laws affecting economic rights (e.g.,
employment/minimum wage laws, regulations of trades or professions,
consumer protection laws, etc.)
b. Takings Clause (5th Amendment for federal government; incorporated in 14th
Amendment for states)
i. The government may take private property for public use if it provides just
compensation
ii. Is There a Taking?
1. Possessory Taking
a. Government confiscation or physical occupation of
property is always a taking
i. This is true even if the physical occupation is very
small (e.g., only a cable wire running on the
property)
2. Regulatory Taking
a. Government regulation is a taking if it leaves no
reasonable economically viable use of the property
i. A mere decrease in property value or in the owner’s
investment is not sufficient
b. Government conditions on the development of property are
only takings if they are not justified by a benefit that is
roughly proportionate to the burden imposed on the
landowner
c. A landowner may bring a takings challenge to regulations
that existed at the time the property was acquired and there
is no expiration date
3. Moratoria
a. Temporary moratoria on development are not takings, as
long as they are reasonable
4. If you don’t have one of the narrow categories, court will look to
factual background to consider the issue of taking (Penn Central
Test):
a. Economic effect/harm on the owner of the property
b. Harm to reasonable investment-based expectations
(whether the law is prospective or retroactive).
i. If prospective, it probably hurts investment-based
expectations less than if retroactive.
c. Nature of the taking—is the taking fair and is it fair to ask
one individual to bear the burden
iii. Is the Taking for Public Use?
1. A taking is for public use so long as the government reasonably
believes that the taking will benefit the public
2. If the taking is not for public use, the government must return the
property
iv. Is the Compensation Paid Just?
1. Government must pay the reasonable market value of the property
in the owner’s hands (prior to the taking) (the gain to the taker is
irrelevant; compensation is measured in terms of the loss to the
owner)
c. Contracts Clause (Contract Clause applies only to the states; rules apply to the
federal government through the Due Process Clause of the 5th Amendment)
i. No state may impair the obligations of contracts
1. Applies only to state/local interference with already existing
contracts
a. Never applies to the federal government
ii. Any state/local law that substantially impairs a private party’s rights under
an existing contract must meet a modified intermediate scrutiny test
(Public Purpose Balancing Test):
1. “The law must be a reasonably and narrowly tailored means of
furthering an important and legitimate public interest”
iii. Any state/local law that interferes with government contracts must meet
strict scrutiny
iv. The Ex Post Facto Clause, which forbids ex post facto laws (criminal laws
that punish something that was legal at the time committed or increase
punishment for a crime after it was committed), does not apply to civil
liability, so retroactive civil liability need only meet a rational basis test.
d. Right to Privacy (a fundamental right protected by substantive due process)
i. Laws that interfere with the right to privacy must meet strict scrutiny
1. Right to Marry
2. Right to Procreate (e.g., a law imposing involuntary sterilization)
3. Right to have custody of your children
a. Terminating custody must be backed up by a compelling
state interest (such as abuse/neglect), but a state may create
an irrebuttable presumption that a married woman’s
husband is the father of her child
4. Right to keep the family together (including the extended family)
a. To be considered family, the members must be related to
each other
5. Right of parents to control the upbringing of their children
(including the right to send children to parochial schools, and the
right to exclude visitation by grandparents)
6. Right to purchase and use contraceptives
7. Right to abortion (compelling state interest is not used here)
a. Undue Burden Test
i. Before viability, government cannot prohibit
abortion, but can regulate it so long as it doesn’t
place an undue burden on the woman’s right
1. A 24 hour waiting period and a requirement
that abortions be performed by licensed
physicians are not undue burdens
2. A prohibition on partial-birth abortions prior
to viability and spousal notification and/or
consent laws are undue burdens
3. Parental notice and/or consent requirements
for unmarried minors are constitutional as
long as there is a judicial bypass provision
(judge can approve abortion if in minor’s
best interest or if minor is mature enough to
decide)
ii. After viability, government may prohibit abortions
except where necessary to protect the life or health
of the mother
b. Constitution does not require the government to fund or
subsidize abortions or provide them in government
hospitals
8. Right to Refuse Medical Care
a. Competent adults have the right to refuse medical care,
even life saving medical care, but a state may require clear
and convincing evidence of the person’s intent
VIII.
b. A state may prevent family members from terminating
medical treatment for another
c. There is no constitutional right to physician assisted suicide
(laws get rational basis review)
9. The right to privacy does not protect the right to engage in
homosexual activities (government may prohibit under rational
basis review)
10. Right to education is not a fundamental right (rational basis
review)
Equal Protection (applies when the government draws a distinction among people or
discriminates in a law)
a. Constitutional Provisions
i. Equal Protection Clause of the 14th Amendment applies only to state
governments and never applies to the federal government
ii. Equal Protection is applied to the federal government through the due
process clause of the 5th Amendment
b. Classifications & Review they Receive
i. Classifications Receiving Strict Scrutiny (compelling state interest test)
1. Race and National Origins Classifications
a. Two Types
i. Classifications existing on the face of the law (law
in its very terms draws a distinction among people
based on race); OR
ii. Classifications with a discriminatory impact and
intent
1. Example: Discriminatory use of preemptory
challenges based on race violates equal
protection.
b. Classifications that benefit minorities are given strict
scrutiny as well
i. However, public educational institutions may use
race as one factor among many in making
admission decisions to benefit minorities and
promote diversity
ii. Seniority systems may not be disrupted for
affirmative action
c. Quotas or set-asides based on race are unconstitutional,
unless they are implemented as a remedy for clearly proven
past discrimination
2. Alienage Classifications (laws that discriminate against noncitizens)
a. Generally strict scrutiny is used
i. Example: Laws allowing only citizens to take a bar
exam are unconstitutional
ii. The Supreme Court has held that encouraging
naturalization of aliens is never a permissible
governmental interest of any state because Congress
has complete power over immigration and
naturalization of aliens
b. Exceptions:
i. Alienage classifications that concern the democratic
process or implement public policy receive only a
rational basis review
1. Only permissible examples: Government
may discriminate against aliens with regard
to voting, holding elected office, serving on
a jury, teaching in elementary or secondary
school, being a police officer, or being a
probation officer.
ii. Discrimination by the federal government
(Congress or the President) receives only a rational
basis review
1. Example: Congress has plenary power to
regulate immigration and naturalization and
the President is vested with the power to
conduct the nation’s foreign affairs
iii. Discrimination against undocumented alien children
receives intermediate scrutiny
3. Laws Affecting the Right to Travel (laws that keep people from
moving into a state) (fundamental right)
a. Durational residency requirements must meet strict
scrutiny
i. However, for voting, a durational residency
requirement can be imposed, but it cannot last
longer than 50 days
ii. Example: Residency requirements imposed by a
state government as a prerequisite to the enjoyment
of the “basic necessities of life” have been struck
down by the Supreme Court as violative of the
Equal Protection Clause in cases involving welfare
benefits and medical care (including midwifery)
b. Exceptions:
i. Restrictions on foreign travel receive only a rational
basis level of review (not a fundamental right to
travel to foreign countries)
4. Laws Affecting the Right to Vote (laws that keep some people
from voting; using race in drawing election district lines)
a. Poll taxes are unconstitutional (because they will keep
poorer citizens from voting)
b. Property ownership requirements for voting or holding
public office are unconstitutional
i. Exception: A property ownership requirement was
upheld once for a water district election
1. This is because the “one person, one vote”
principal does not apply to elections which
are held for a limited purpose (i.e., a water
district election which only directly affects
landowners in that district).
c. “One person, one vote” must be maintained for all state and
local elections (all districts must be about equal in
population)
i. Voter approval does not justify deviation (i.e., two
separate districts voting to merge)
d. At large elections are constitutional, unless there is proof of
a discriminatory purpose and impact (e.g., where every
voter casts three votes for three members to be elected on
city council)
e. Counting the uncounted votes in a presidential election
without preexisting standards violates equal protection
f. The Right to Run for Political Office
i. Although the right to run for political office is not a
fundamental right, state restrictions on candidates
(e.g., voter signature requirements) are invalid
unless they further “vital state objectives” that
cannot be achieved in “significantly less
burdensome ways”
ii. Classifications Receiving Intermediate Scrutiny
1. Gender Classifications (intermediate scrutiny requiring an
“exceedingly persuasive justification”)
a. Two Types
i. Classification existing on the face of the law; OR
ii. Classification that is neutral on its face, but has
discriminatory impact and intent
1. Example: Discriminatory use of preemptory
challenges based on gender violates equal
protection
b. Intermediate scrutiny applies to laws that benefit women as
well
i. Laws that appear to benefit women, but really are
based on role stereotypes (e.g., that all women are
economically dependent on men) are
unconstitutional
c. Laws giving differences in opportunities are
unconstitutional, unless they are implemented as a remedy
for clearly proven past discrimination
2. Legitimacy Classifications (children whose parents are or were not
married at birth)
IX.
a. Generally intermediate scrutiny is used
i. Exceptions:
1. Laws that deny a benefit to all non-marital
children, but grant it to all marital children
are unconstitutional
iii. Classifications Receiving Rational Basis Review
1. Age (e.g., mandatory retirement laws)
2. Disability
3. Wealth (poverty is not a suspect classification)
4. Economic classifications
5. Sexual orientation
First Amendment
a. Freedom of Speech
i. Content-based laws
1. Where application of the law depends on the topic of the speech
(subject matter restriction) (e.g., “no picketing in residential
neighborhoods unless it is related to labor disputes;” “candidates
for judicial office cannot make statements about political issues);
OR
2. Where application of the law depends on the ideology of the
message (viewpoint restriction) (e.g., “pro-war demonstrations are
allowed, but anti-war demonstrations are not”)
3. Must meet strict scrutiny
ii. Content-neutral laws
1. Laws applying to all speech, whatever its topic or viewpoint (e.g.,
“no demonstrations in city parks”)
2. Receive intermediate scrutiny
iii. Prior Restraint
1. A judicial order or an administrative system that stops speech
before it occurs
a. Court orders prohibiting speech must meet strict scrutiny
(e.g., TRO)
i. Procedurally proper court orders must be complied
with until they are vacated or overturned, even if
you believe they are unconstitutional. Violating a
court order prevents you from later challenging it
b. Gag orders to prevent negative or prejudicial pre-trial
publicity are unconstitutional
2. Licenses
a. The government may require a license or permit for speech
as long as:
i. There is an important reason for licensing;
ii. Clear criteria leave almost no discretion to the
licensing authority; and
iii. The licensing scheme contains procedural
safeguards (such as prompt determination of
requests for licenses and judicial review)
iv. Vagueness
1. A law is unconstitutionally vague if a reasonable person cannot tell
what speech is prohibited and what is allowed
2. Fighting words laws (words that are likely to promote a fighting
response) are unconstitutionally vague
v. Overbreadth
1. A law is unconstitutionally overbroad if it regulates substantially
more speech than what the Constitution allows to be regulated
a. Example: A law stating, “all live entertainment is
prohibited” prohibits much more than just
pornography/obscenity (it prohibits live theater, etc.)
2. Fighting words laws are unconstitutionally overbroad
vi. Symbolic Speech
1. Government can regulate conduct that communicates if:
a. It has an important interest unrelated to suppression of the
message; and
b. The impact on communication is no greater than necessary
to achieve the government’s purpose
2. Flag burning is constitutionally protected symbolic speech
3. Draft card burning is not constitutionally protected
4. Nude dancing is not constitutionally protected
5. Burning a cross and painting a swastika is protected speech
a. However, the government may punish physical threats and
the defacing of another’s property
6. Penalty enhancements for hate-motivated crimes are constitutional
(punishing conduct, not speech).
7. Contribution limits for candidates or committees are constitutional,
but expenditure limits are unconstitutional.
vii. Anonymous Speech
1. Is protected by the First Amendment
viii. Categories of Speech Not Protected (or given less protection) by the First
Amendment
1. Incitement of Illegal Activity
a. Government may punish speech if there is a substantial
likelihood of imminent illegality and the speech is directed
at causing that imminent illegality (e.g., threats to
someone’s safety, if the threat is imminent or actually likely
to be carried out)
2. Pornography & Obscenity
a. Test for Obscenity
i. Material appeals to the prurient interest (a shameful
or morbid interest in sex)
1. Local standard
ii. Material is patently offensive under the law
prohibiting obscenity
iii. Taken as a whole, the work lacks serious redeeming
artistic, literary, political, or scientific value
1. National standard
b. Government may use zoning ordinances to determine and
limit the locations of adult book stores and theaters.
c. Government may ban child pornography, even if it is not
obscene
i. However, children must actually be used in its
production (not computer generated children)
d. Government may not punish private possession of obscene
material, but may punish private possession of child
pornography
e. Government may seize the assets of businesses convicted
of obscenity law violations
f. Profane and indecent speech is protected by the First
Amendment (swear words, “fuck the draft,” etc.)
i. Exceptions:
1. Not protected if aired over free broadcast
media (TV and radio) (a radio or TV station
can be punished for broadcasting profane
indecent speech)
2. Not protected if spoken in school (schools
may punish).
3. Commercial speech
a. False and deceptive ads are not protected (may be
punished)
b. True commercial speech that inherently risks deception can
be prohibited
i. Government may prohibit professionals from
advertising or practicing under a trade name
1. Example: An eye doctor can be prevented
from calling his business “sight for sore
eyes”
ii. Government may prohibit face-to-face, in person
solicitation by attorneys (e.g., ambulance chasing,
showing up in hospital rooms to get clients)
1. Exception:
a. Lawyers can offer free services to a
client face to face
2. Lawyers may send letters in the mail to
solicit business
3. Government may not prohibit accountants
from soliciting clients face-to-face
c. Other commercial speech can be regulated if intermediate
scrutiny is met
i. Regulation must also be narrowly tailored, but it
does not need to be the least restrictive alternative
4. Defamation
a. If plaintiff is a public official (or one running for office) or
a public figure (those who thrust themselves into the
spotlight and have access to the media):
i. Must prove falsity and actual malice (by clear and
convincing evidence)
1. Actual Malice: Defendant knew the
statement was false or acted with reckless
disregard for the truth
b. If plaintiff is a private figure, but the matter is of a public
concern (public has a legitimate interest):
i. Must prove falsity and negligence to recover
compensatory damages
ii. Must prove actual malice to recover presumed or
punitive damages
c. If plaintiff is a private person and the matter is private,
presumed and punitive damages can be recovered without
proving actual malice
5. Privacy
a. The government may not create liability for the truthful
reporting of information that was lawfully obtained from
the government (e.g., rape victim names from government
records)
b. Liability is not allowed if the media broadcasts a tape of an
illegally intercepted call, if the media did not participate in
the illegality and it involves a matter of public importance
c. Government may keep information confidential from the
press
i. Except in some cases the press will have the right to
attend criminal trials
ix. Places Available for Speech
1. Public Forums – Government properties that the government is
constitutionally required to make available for speech (e.g.,
sidewalks, parks)
a. Government may regulate, but regulations must be:
i. Subject matter and viewpoint neutral (content
neutral) in order to avoid strict scrutiny; AND
ii. Time, place, and manner regulations that serve an
important government purpose and leave open
adequate alternative places for communication
b. Government regulations of public forums need not use the
lease restrictive alternative
c. Permits and permit fees are constitutional, but city officials
cannot have discretion to set permit fees for public
demonstrations
2. Limited Public Forums – Government properties that the
government can close to speech, but chooses to open to speech
(e.g., schools)
a. Once the government chooses to open the property for
speech, it must meet all of the requirements for public
forums
3. Non-Public Forums – Government properties that the government
can and does close to public speech (e.g., military bases; areas
outside jails/prisons; advertising space on city buses; sidewalks on
post office property; candidate debates sponsored by government
owned radio/TV stations)
a. Government can regulate speech in non-public forums as
long as the regulation is reasonable and viewpoint neutral
(doesn’t have to be subject matter neutral though)
b. Airports
i. Government can prohibit solicitation of money at
airports, but cannot prohibit distribution of literature
4. There is no First Amendment right to access privately owned
property for speech
b. Freedom of Association
i. Laws that prohibit, or punish a person for, group membership must meet
strict scrutiny.
ii. To punish membership in a group, it must be proven that the person:
1. Actively affiliated with the group;
2. Knowing of its illegal activities; and
3. With the specific intent of furthering those illegal activities
iii. Laws that require disclosure of group membership, where such disclosure
would chill association, must meet strict scrutiny
iv. Laws that prohibit a group from discriminating are constitutional unless
they interfere with intimate association or expressive activity
1. Examples:
a. A small dinner party is an intimate association and if
someone wasn’t invited because of race or gender, freedom
of association would protect the right to exclude
b. Nazis can discriminate against Jews, the KKK can exclude
African Americans, and the Boy Scouts can exclude
homosexuals because discrimination is integral to the
group’s expressive activity/message
c. Freedom of Religion
i. Free Exercise Clause (First Amendment applies to federal government;
made applicable to the states through the Due Process Clause of the 14th
Amendment)
1. Prohibits the government from imposing any burden on, or
granting any benefit to, individuals because of their religious
beliefs
a. The court may inquire into the sincerity with which an
asserted belief is held by a person and into the importance
of the belief to the religious or spiritual system of the
person, but cannot inquire into whether a person’s religious
beliefs are true or valid
2. The government may regulate religious conduct (but not the belief
itself) if the interests advanced by the government regulation
outweigh the burden imposed on religion, and a party cannot
challenge a law of general applicability under the Free Exercise
Clause, unless the law is motivated by a desire to burden religion
a. Example: A state statute preventing cruelty to animals
serves important governmental interests in protecting
animals from cruelty and harm. While there is a burden on
Satan worshippers who practice religious sacrifice, the
government interest is more important because of the clear
danger posed to the public and the animals
i. The fact that the religious practitioners sincerely
believe in the need for the animal sacrifice is not
sufficient to justify the conduct of such sacrifices
b. Example: A state fired two drug counselors for the
ingestion of peyote as part of their Native American rituals.
The law was a general regulation—ban on the use of
peyote. No purpose to address or seek out a religion.
3. The government may not deny benefits to individuals who quit
their jobs for religious reasons
ii. Establishment Clause
1. Government may make no law respecting the establishment of
religion
2. Lemon Test (law is unconstitutional if it fails any part)
a. Secular purpose for the law
b. Effect is neither to advance nor inhibit religion
(government must not symbolically endorse religion or a
particular religion)
i. Example: A nativity scene by itself on government
property is an endorsement of Christianity. For the
nativity scene to be constitutional, it must include
other religious symbols and secular symbols.
c. No excessive entanglement with religion
i. Example: Government cannot directly pay teachers’
salaries in parochial schools, even if restricted to
those teaching only secular subjects
ii. Example: Government financial assistance to postsecondary religious schools (i.e., colleges and
universities) for secular use is constitutional as long
as the primary purpose and effect of the funding is
non-religious (there is no risk of excessive
entanglement)
1. This is so because the risk of excessive
government entanglement is minimal at the
post-secondary level because the religious
colleges and universities are primarily
secular educational institutions as opposed
to the primary and secondary religious
schools where religious instruction is
stressed
3. Government cannot discriminate against religious speech or among
religions unless strict scrutiny is met
4. Government sponsored religious activities in public schools are
unconstitutional (e.g., school prayer, clergy delivered prayer at
graduations, student delivered prayers at high school football
games, silent prayer in schools, etc.), but religious student and
community groups must have the same access to school facilities
as non-religious groups
5. Government Aid to Parochial Schools
a. The government may give assistance to parochial schools,
as long as it is not used for religious instruction
b. Government may provide parents with vouchers they can
use for parochial schools
i. This is true because there is the secular purpose of
improving education and if the money ends up in
religious schools, it is by the parent’s choice