Constitutional Law
Bill of Attainder
A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial.
Mootness
A case has become moot if there is no longer a controversy.
Ripeness
A federal court will not consider a claim before it has fully developed.
Unfettered Discretion
A law or regulation that permits a governmental official to restrict speech must provide definite standards as to how to apply the law. Such a law or regulation must be related to an important governmental interest and contain procedural safeguards. A statute that gives officials unfettered discretion is void on its face.
Substantive Due Process: Rational Basis
A law passes the rational basis standard of review if it is rationally related to a legitimate state interest.
Overbreadth
A law that burdens substantially more speech than is necessary to protect a compelling governmental interest is overbroad and therefore void.
Denial of Public Employment
A person may only be punished or deprived of public employment based on political association if that individual: (i) Is an active member of a subversive organization; (ii) Has knowledge of the organization's illegal activity; and (iii) Has a specific intent to further those illegal objectives.
Incitement to Violence
A state may forbid speech that advocates the use of force or unlawful action if: (i) The speech is directed to inciting or producing imminent lawless action; and (ii) It creates a clear and present danger.
Vagueness
A statute is void for vagueness if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited.
Fighting Words
Actual threats of violence are outside the protection of the First Amendment, given the need to protect individuals from: (i) the fear of violence; (ii) the disruption that fear engenders; and (iii) the possibility that the threatened violence will occur.
Regulation of the Media
Although the First Amendment specifically mentions freedom of the press, the media has no greater First Amendment rights than the general public.
Ad Valorem Tax
An ad valorem tax is based on the value of real or personal property and is often assessed at a particular time. Such taxes are generally valid, but a state may not levy ad valorem taxes on goods in the course of transit. A state may tax the "instrumentalities of commerce," provided that: (i) The instrumentality has a taxable situs within—or sufficient contacts with—the taxing state; and (ii) The tax is fairly apportioned to the amount of time the instrumentality is in the state.
Privileges And Immunities
Article IV, section 2 (the Comity Clause), provides that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. Discrimination against out-of-state citizens may be valid if the state can show a substantial reason for the difference in treatment. A substantial reason exists if: (i) the nonresidents either cause or are a part of the problem that the state is attempting to solve; and (ii) there are no less restrictive means to solve the problem.
Preemption
Federal law expressly preempts state law in cases in which the constitution makes the federal power exclusive or when Congress has enacted legislation that explicitly prohibits state regulation in the same area.
Commandeering
Congress cannot "commandeer" state legislatures by commanding them to enact specific legislation or administer a federal regulatory program.
Delegation of Legislative Powers
Congress may not delegate legislative power to any other branch of government. However, delegation of some of Congress's authority to the executive branch has consistently been held constitutional, so long as Congress specifies an "intelligible principle" to guide the delegate.
Takings: Public Peril
Destruction of property can also result in a taking. However, the destruction of private property in response to a public peril does not trigger the right to compensation.
Freedom of Association
Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute. An infringement upon this right may be justified by a compelling state interest.
Gag Orders
Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant's right to a fair trial.
Takings: Regulatory Taking
Generally, a governmental regulation does not constitute a taking. However, regulation may constitute a taking when the following factors are considered: (i) the economic impact of the regulation on the property owner; (ii) the extent to which the regulation interferes with the owner's reasonable, investment-backed expectations regarding use of the property; and (iii) the character of the regulation, including the degree to which it will benefit society, and whether the regulation violates any of the owner's essential attributes of property ownership (balance of interests).
Expressive Conduct
Governmental regulation of expressive conduct is upheld if: (i) The regulation is within the government's power to enact; (ii) The regulation furthers an important governmental interest; (iii) The governmental interest is unrelated to the suppression of ideas; and (iv) The burden on speech is no greater than necessary.
Dormant Commerce Clause
If Congress has not enacted legislation in a particular area of interstate commerce, then the states are free to regulate, so long as the state or local action does not: (i) Discriminate against out-of-state commerce; (ii) Unduly burden interstate commerce; or (iii) Regulate wholly out-of-state activity.
Procedural Due Process: Notice and Hearing
If an individual's protected interest is threatened by governmental action, the next step is to determine what type of process is due. The Court considers three factors in determining the amount of process that is due: (i) the private interest affected by the governmental action; (ii) The risk of erroneous deprivation of that interest using current procedures and the probable value of additional or substitute safeguards; and (iii) the burden (fiscal and administrative cost) involved in providing the additional process. The greater the importance of the threatened interest, the greater the likelihood that the Court will require extensive procedural safeguards prior to the termination of the interest.
Contracts Clause: Public Contracts
Impairment by the state of a public contract is subject to essentially the same "reasonable and necessary" test as private contracts. The state must also show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary because of unforeseeable circumstances.
Time, Place, Manner: Public Forum
In a traditional or designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: (i) Are content-neutral as to both subject matter and viewpoint; (ii) Are narrowly tailored to serve a significant governmental interest; and (iii) Leave open ample alternative channels for communication of the information.
Takings: Per Se
In two scenarios, a regulation results in a taking no matter what. These are called per se takings. The first is when a governmental regulation results in a permanent physical occupation of the property. The second is when a regulation results in a permanent total loss of the property's economic value.
Contracts Clause: Private Contracts
State legislation that substantially impairs a contract between private parties is invalid, unless the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest.
Equal Protection: Intermediate Scrutiny
Intermediate scrutiny is used when a classification is based on gender or status as a non-marital child. To be constitutional, the law must be substantially related to an important government interest. The burden is generally on the government to prove that the law in question passes intermediate scrutiny.
Obscenity
Obscene speech is speech that: (i) appeals to the "prurient interest"; (ii) depicts sexual conduct in a patently offensive way; and (iii) lacks serious literary, artistic, political, or scientific value.
Prior Restraint
Prior restraints are generally unconstitutional, with limited exceptions. These exceptions require at a minimum that: (i) There is a particular harm to be avoided; and (ii) Certain procedural safeguards are provided to the speaker. There must be a prompt and final judicial determination of the validity of the restraint. The burden is on the government to prove that the material to be censored is not protected speech.
Commercial Speech
Restrictions on commercial speech are reviewed under a four-part test: (i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); (ii) The asserted governmental interest must be substantial; (iii) The regulation must directly advance the asserted interest; and (iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored means that there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends.
State Action
The Constitution generally protects against wrongful conduct by the government, not private parties. In other words, state action is a necessary prerequisite to triggering constitutional protections.
Equal Protection
The Equal Protection Clause of the Fourteenth Amendment provides that "no state shall...deny to any person within its jurisdiction the equal protection of the laws." The Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states.
Due Process Clause
The Fif th Amendment Due Process Clause provides that no state shall make or enforce any law, which shall deprive any person of life, liberty or property without due process of the law and is applicable to the states through the Fourteenth Amendment.
Regulation of Content
The First Amendment provides that "Congress shall make no laws...abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances." These aspects of the First Amendment are applicable to the states via the Fourteenth Amendment. In general, the government may regulate the content of speech only if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest.
Takings: Seizure
The classic application of the Takings Clause is the seizure of private property for governmental use, such as acquiring privately held land in order to construct a courthouse or other government building. In such a case, the property owner's primary challenge to the seizure is whether he has received just compensation.
Free Exercise Clause
The freedom to believe in any religion or none at all is absolutely protected and cannot be restricted by law. The government may not deny benefits or impose burdens based on religious belief. Religious conduct, on the other hand, is not absolutely protected. Generally, only state laws that intentionally target religious conduct are subject to strict scrutiny. Neutral laws of general applicability that have an impact on religious conduct are subject only to the rational basis test.
Procedural Due Process: Indigent Persons
The government cannot deny an indigent person access to the court system because of his inability to pay the required court fees, if such imposition of fees acts to deny a fundamental right to the indigent. Due process requires such fees to be waived.
Time, Place, Manner: Nonpublic Forum
The government may regulate speech-related activities in nonpublic forums as long as the regulation is: (i) viewpoint-neutral and (ii) reasonably related to a legitimate governmental interest.
Substantive Due Process
The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary. (i) A governmental action that infringes upon a fundamental right is subject to strict scrutiny. (ii) If the interest impinged upon is not fundamental, then there need be only a rational basis for the regulation.
Takings
The power of the government to take private property for public purposes is known as eminent domain. The Takings Clause of the Fifth Amendment acts as a check on this power; it provides that private property may not be taken for public use without just compensation. The Fourteenth Amendment Due Process Clause makes the Takings Clause applicable to the states.
Equal Protection: Rational Basis
The rational basis standard is used in all cases that does use intermediate or strict scrutiny. Thus, rational basis review applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons. A law passes the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny.
Substantive Due Process: Strict Scrutiny
The strict scrutiny test is applied if a fundamental right is involved. To satisfy strict scrutiny, the law must be the least restrictive means to achieve a compelling government interest. The burden is on the government to prove that the law is necessary.
Equal Protection: Strict Scrutiny
The strict scrutiny test is applied if a fundamental right or a suspect classification is involved. The suspect classifications are race, ethnicity, national origin, and, if the classification is by state law, alienage. To satisfy strict scrutiny, the law must be the least restrictive means to achieve a compelling government interest. The burden is on the government to prove that the law is necessary.
Establishment Clause
To determine whether a particular program violates the Establishment Clause, the Court may apply the three-part Lemon test. A governmental action that benefits religion is valid if: (i) It has a secular purpose; (ii) Its principal or primary effect neither advances nor inhibits religion; and (iii) It does not result in excessive government entanglement with religion.
Standing
To have standing, a plaintiff bears the burden of establishing three elements: (i) injury in fact; (ii) causation; and (iii) redressability.
Commerce Power
Under Article I, Section 8, of the US Constitution, Congress has the power to regulate: (i) the channels and (ii) the instrumentalities of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce.
Spending Power
Under Article I, Section 8, of the US Constitution, Congress has the power to spend for the "general welfare", i.e., any public purpose.
Taxing Power
Under Article I, Section 8, of the US Constitution, a tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.
Ex Post Facto Laws
Under Article I, Sections 9 and 10, a federal or state statute will be struck down as being ex post facto if it: (i) Criminalizes an act that was not a crime when it was originally committed; (ii) Authorizes, after an act was committed, the imposition of a more severe penalty on that act; (iii) Deprives the defendant of a defense available at the time the act was committed; or (iv) Decreases the prosecution's burden of proof required for a conviction to a level below that which was required when the alleged offense was committed.
Procedural Due Process
When one's liberty or property interests are adversely affected by governmental action, two questions are asked: (i) is the threatened interest a protected one? (ii) if so, what process is due?
