law school essentials – constitutional...

LAW SCHOOL ESSENTIALS – CONSTITUTIONAL LAW PROFESSOR JOHN C. JEFFRIES, JR.

UNIVERSITY OF VIRGINIA

CHAPTER 1: INTRODUCTION TO A CONSTITUTIONAL LAW FINAL EXAM

A. Two things that are instrumental to writing a good Constitutional Law exam:

• Learning the subject

• Preparing the exam

B. The importance of your professor

• Topics

• Approaches

o What kinds of _______________________ does your professor think are most important?

o What kinds of _______________________does your professor think are most valid?

o What kinds of __________________________does your professor invoke?

C. Identify your professor’s approach to constitutional law - Three broad approaches:

1. Traditional Approach

o Effort to find meaning in the Constitution by conventional ___________________analysis

o Starts with the assumption that the Constitution is _________________ and the key to

finding meaning is to interpret it like you would any other law (interpretative approach)

Text - A traditionalist will not accept any argument that is ______________________

with the text

History

• Can mean original _____________________– what the framers actually had in mind

• Today it is more commonly interpreted to be original _________________________

- Generally understood __________________meaning of the text at the time

• Includes not only the history of formation but also later developments

Precedent - A particular interpretation of the Constitution gains authority if it has been

previously adopted

Structure of government created by the Constitution

2 | © 2014 Themis Bar Review, LLC | LSE Constitutional Law

o Often the four sources of meaning point in conflicting directions so the traditionalist must

decide which interpretation is best.

2. Process Theory

o Process refers to the process of _______________________________________ self

government set up in the Constitution

o Views all constitutional law issues as part of one overarching concern:

What is the appropriate role of an anti-majoritarian Supreme Court in a society

committed to majoritarian self government?

How do we reconcile constitutional adjudication with the fact that we are supposed to

live in a democracy where the people are supposed to control the government?

o Answers these questions the following way:

Constitutional decision-making is at its best when it

___________________________________ democratic self government.

• Reapportionment - - one person/one vote

• When it protects meaningful participation in political system - e.g., race

• Free speech as administered by the courts

Constitutional decision-making is most questionable when it

________________________________________ the political branches.

3. Rights Theory

o Focus is on _____________________________ rights – rights that are protected against

majoritarian control

o The Court protects certain substantive rights, such as abortion, whether the majority

approves or not

o Rights theorists are not typically concerned with the political process, but rather seek to

ensure that the results do not restrict fundamental rights

o Sources of fundamental rights

The Constitution

Natural law

Moral philosophy

o Compared to Traditionalists, Rights Theorists are concerned with the elements of legal

analysis and concerned with the philosophical basis for protecting individual rights

Exam Tip 1: Identify your professor’s approach to constitutional law and pay attention to that approach as you write your exam answers. This does not mean you should simply agree with what your professor has to say. Just don’t ignore the types of arguments that your professor is interested in.


Exam Tip 2: Pre-write your answers. The most common mistake students make is not answering the question asked because they waste too much time getting started. Pre-writing will help you avoid this mistake.

Exam Tip 3: Remember: Professors rarely test something they have not covered in detail, and they rarely fail to test something they have covered in detail.

D. Four kinds of constitutional law issues:

• Separation of powers

• The scope of federal legislative power

• State interference with the federal system

• Individual rights


CHAPTER 2: SEPARATION OF POWERS: JUDICIAL REVIEW

A. Concerns the _______________________________ of power among the branches of the federal government

B. Marbury v. Madison

1. Power of judicial review

Exam Tip 4: Your professor may not ask you about this case because it is so well settled. However, it will almost certainly be tested indirectly. Great students will see the connection to this decision and discuss the implications.

2. Central idea: The Constitution is _______________, not merely a statement of principles or a

collection of ideals.

o Narrow reading: In a case properly before it, a court may refuse to give effect to a statute if

the statute is repugnant to the Constitution.

o Broader reading: Sometimes the Court cites Marbury as establishing judicial

___________________________________ in constitutional interpretation.

3. Types of issues where Marbury should be raised:

o Power of the branches to interpret the _________________________________

Exam Tip 5: Some professors are very interested in constitutional interpretation outside of the courts. If you get a question about this, tie it back to Marbury.

o Standing (usually concerns whether this plaintiff can sue)

Issues without a proper plaintiff:

• No problem under the narrow reading of Marbury: no case is properly before the

court and the power to declare laws unconstitutional is only incidental to the power

to decide cases.

• Under the broad reading, the lack of a plaintiff is a serious problem - it is essential

for the court to hear the issue and ultimately interpret the Constitution.

o The Court has established a special standing rule to ensure that a question can

be raised without traditional standing.

o Tax payer – any ___________________________________ can raise an

____________________________________________ Clause challenge to a

state or federal spending program.

o Political question doctrine

Political questions are said to be beyond judicial competence - all courts


Under the narrow reading of Marbury, the court should decide the case according to the

law irrespective of the political consequences.

The broader reading allows the court to avoid - might be good political reasons for not

exercising the political power.

Exam Tip 6: An exam question on this area might involve impeachment, for example. An unsettled issue is whether the Senate can interpret for itself what constitutes a "high crime or misdemeanor" or is that determination subject to judicial review? This is a great exam question because it directly relates to an understanding of Marbury.


CHAPTER 3: SEPARATION OF POWERS - CONTINUED

A. Executive Appointments

• Congress cannot _______________ or _______________ executive officers

o Exception: ______________________________________________

• Who is an executive officer?

o Anyone who acts on behalf of the U.S. Government. Anyone who, for example:

Grants a permit

Issues a ruling

Denies a license

Makes decisions on behalf of the U.S.

o Must be hired and fired by the __________________________________ branch

• Exception – Special prosecutor

o Empowered to prosecute corruption within the __________________________ branch

o Can be appointed by ________________________________________________

• Congress can hire and fire its own staff – to investigate, advise, recommend – but not to act on

behalf of the U.S. government

B. Legislative Veto

• Unconstitutional

• Congress passes a law for some agency or official to take action in the future but Congress

reserves the right to disapprove of (veto) that action by simple

____________________________________.

o Violates constitutional ______________________________ of _____________________ by

giving Congress the power to act without giving the president his constitutionally-mandated

opportunity to _____________________.

o Changing the law is fine, but Congress may not evade the president’s veto right.


C. Case or Controversy: The Requirement of Justiciability

1. A case or controversy is a ____________________________________ to the exercise of

judicial power

o Ripeness – controversies must be live disputes - not merely a possibility that a dispute may

arise at some point in the future

Must show _____________________ harm or ________________________ threat of

harm

o Mootness – once the controversy _________________________________, the case

becomes moot

Typically dismissed whenever they become __________________________

Exception: Controversies capable of _____________________________________ yet

evading review are not moot

Example 1: A recurring issue with an internal time limit such that the

controversy will not last long enough to be finally adjudicated or resolved.

Classic case: ________________________________ - no pregnancy lasts long

enough for the case to make its way through the court system.

Exception: Class Actions - Case will be a live controversy as long as it is live with respect

to any class ______________________________________, not just the named party

o Standing - Requires _________________________,________________________________,

and ____________________________________________________

Plaintiff must show that he or she has been injured or will be injured by the defendant’s

action

Plaintiff must show the defendant’s conduct _______________________________ or

will cause the injury

Courts must have the power to redress the injury through judicial relief

o Three things that are not injury

Ideological ____________________________

Injury to ______________________________

o Exception: you can raise the rights of someone else if you are party to a

transaction

o Exception: when there is an obstacle to the enforcement of rights by a third

party

o Taxpayer standing

You have standing to litigate something that affects your own tax liability


You do not have standing to challenge how the government spends tax revenue

o Exception: ______________________________________Clause challenge to a

government spending plan (extremely narrow exception)


CHAPTER 4: FEDERAL LEGISLATIVE POWER

A. Enumerated Powers

• Power to regulate ___________________________________ commerce

• Power to enforce the 13th, 14th, and 15th Amendments (Civil War Amendments)

• Power to make war

• Power to ________________ and spend

• Power to provide for the army and navy

• Power to provide for a post office

B. Necessary and Proper Clause is not freestanding - Has to be attached to another power that is enumerated

C. Federal government, unlike the states, does not have______________________________

• Every exercise of federal legislative power must be brought within one of the specific grants of

Article 1 authority or the enforcement clauses of the Civil War Amendments

• Laws may still be invalid if they violate ________________________________________

D. Two questions

• Is the federal statute within the federal legislative power? If so:

• Does it offend _______________________________________________rights?

E. Commerce Power

• Regulating the private sector - Commerce power is very extensive. There are three theories,

one of which almost always works:

o Congress can regulate the __________________________ of interstate commerce

(highways, waterways, airways, etc). Under this theory, transportation or traffic across

state lines may be regulated as commerce whether or not it involves commercial activity.

(Interstate transportation of a woman for immoral purposes is a federal crime – justified as

a regulation of interstate commerce because it regulates the interstate transportation even

though there is no commercial activity.)

o Congress can regulate the __________________________________________ of interstate

commerce (trucks, trains, ships, airplanes) – whether or not they are currently engaged in

commercial activity.

o Congress can regulate any activity (including intrastate activity) that has a

______________________________________________________ on interstate commerce

(especially true for economic or commercial activity; its substantial effect is presumed)


If the underlying activity is _______________________________ or

______________________________________ in nature, substantial interstate effect

will be presumed

• Allows Congress to aggregate the effects of commercial or economic activity to

achieve a substantial effect on interstate commerce

If the underlying activity is not economic or commercial in nature, substantial effect on

interstate commerce must be _______________________

Exam Tip 7: Likely exam questions here: (i) What happens if Congress prohibits possession within 1000 feet of a school of any firearm, any part of which has been transported in interstate commerce? Because of the interstate commerce component of the law here, it would probably be upheld, even if the point of the regulation is not commercial.

(ii) What happens if Congress regulates purely intrastate activity, but activity of a commercial or economic nature? Because the effects of commercial or economic activity could be aggregated, law would likely be upheld.

• Regulation of the public sector (states and localities)

o Generally, Congress does have the power to regulate states and localities under the

Commerce Clause

o Easy case: Federal government regulates general commercial activity - regulations that

apply alike to the private sector and to state and local governments – such regulations will

be upheld

Minimum wage, maximum hour laws

Occupational safety

Anti -discrimination

So long as the federal regulation applies across the board to both the

______________________ and the _______________________ sectors, it will be

upheld (because those activities, whether public or private, substantially affect

interstate commerce).

• Congress cannot compel ________________________ to enact, adopt, or enforce legislation

(anti-commandeering principle)

o Congress can_________________________________ regulate if it has a substantial effect

on interstate commerce (Commerce Clause)

o Congress can ____________________________ states to follow federal programs by

offering conditional federal money, conditioned on adherence to the federal program

(spending power)

o Congress can conditionally ________________________________________ a state law by

creating regulations that apply unless the state adopts its own regulations meeting federal

standards


o Congress cannot directly coerce the states to enact suitable legislation

F. Spending Power

• Congress has broad power to ___________________________as it likes as long as it does not

violate individual rights.

• Spending must relate to the ______________________________________, and almost

everything does.

• Congress can use the spending power to induce behavior that it could not directly compel under

the Commerce Clause.

G. Taxing Power - Any tax that is ______________________________________ capable of ____________________________________________ is within the taxing power

Example 2: Individual mandate of the Affordable Healthcare Act (i.e.,

individuals must buy health insurance or pay a penalty for being uninsured) was

sustained by the Supreme Court under the power to tax.

H. Civil War Amendments (13th, 14th, and 15th Amendments) - Each amendment includes a provision granting Congress the power to enforce these amendments by appropriate legislation

• 13th Amendment - addresses purely private conduct

o Not limited to __________________________________: Prohibits slavery and racial

discrimination no matter if it is governmental, public or private. Congress has the power to

legislate against racial discrimination whether public or private.

o Congress has the power to prohibit the badges and incidents of slavery, whether public or

private.

• 14th Amendment - requires state action

o Congress can make laws to remedy violations of _______________________________

rights as those rights are defined by the ______________________________. Congress

cannot add new rights on its own.

Example 3: Proper exercise of 14th Amendment power: Literacy tests were

administered to deny African-Americans the right to vote. Congress suspended

the operation of literacy tests nation-wide. This was valid because it was a

reasonable means of remedying racial discrimination in voting, a

constitutionally-protected right.

Example 4: Improper exercise of 14th Amendment power: The Religious

Freedom Restoration Act required government at all levels to allow religious

individuals not to obey laws that offended their belief unless the government

could show a compelling reason for doing so. Can Congress pass this law? Held


both yes and no: in exercising its federal powers, Congress can choose to

accommodate religious belief. Congress has no power to force states and

localities to accommodate religious belief. Congress has no legislative power

over religion. Congress only has the power to enforce individual rights as those

rights have been defined by the courts.


CHAPTER 5: STATE INTERFERENCE WITH THE FEDERAL SYSTEM

State action may be invalid because it conflicts with the powers of the federal government or with the

rights of ___________________________________________.

A. Preemption - Any federal law overrides (preempts)_____________________________ state law

o State law is not preempted simply because it addresses the same subject as a federal law -

Only preempted if the state law is ________________________________________ with a

federal law

Example 5: Suppose the federal government sets minimal standards for

emissions. California decides to require a heightened standard for emissions.

The California law addresses the exact same subject as the federal law and

regulates the same activity. However, it is not incompatible with the federal

law so it will not be preempted.

o If the state law and federal law are not incompatible then the state law is almost always

__________________.

Exception: Sometimes Congress preempts the ___________________ by preempting all

state and local laws regarding a particular subject area.

o One question: Has Congress (or a delegated authority) expressly or impliedly excluded state

and local regulation of this subject?

B. Interstate Conflicts - Certain state laws can interfere with the rights of other states.

Example 6: State taxation of property. A state may only tax property within

its own borders or only a proportionate share of an interstate business

enterprise.

C. The Dormant Commerce Clause

o Arises only in the absence of federal regulation. If Congress exercises the commerce power,

any incompatible state law is preempted.

o The question: Are state laws preempted even by the unexercised power under the

Commerce Clause?

o Tests that apply to the Dormant Commerce Clause:

Discrimination - No state discrimination against out of state interests unless necessary

to promote local ________________________ or _______________________________


Example 7: A state cannot forbid outside competitors. In-state businesses

may sell within the state but out-of-state businesses may not. This is

discriminatory and violates the Dormant Commerce Clause.

Example 8: A state adopts higher taxes against out-of-state companies. This

is discriminatory taxation and violates the Dormant Commerce Clause.

Example 9: A state cannot forbid garbage from another state from being

disposed of in its landfills. This is discriminatory against out-of-state garbage

and is a violation of the Dormant Commerce Clause.

Note 1: A state can monitor the importation of fruits and vegetables.

Subsidies for in-state interests are not forbidden. (The cost of regulation is not borne by

outsiders, but rather the taxpayers of the regulating state bear the burden.)

Example 10: Welfare benefits are a subsidy and can be limited to in-state

persons

Example 11: In-state tuition for public institutions for in-state persons

Example 12: State as market participant - Any state may choose to buy

______________ or _______________to only its own citizens

When the state acts as a market participant, it can choose to deal only with in-

state persons. When the state chooses to buy or sell as opposed to regulate, it

is in a sense subsidizing a price break and in doing so can buy or sell only to in-

state persons.

o Non-discriminatory regulations, i.e., in-state and out-of-state are treated alike – almost

always valid. But even state regulations that are non-discriminatory are invalid if they place

an ___________________________________ on interstate commerce.

o Rare - In order to tell whether a state places an undue burden on interstate

commerce, ______________________ the burden on interstate commerce

against the state’s _______________________________ in the law or

regulation.

o If Congress ________________________ to or ________________________________ state

regulation of commerce, nothing the state does will violate the Commerce Clause or the

Dormant Commerce Clause.

D. Privileges and Immunities of State Citizenship

o Guaranteed under Article __________

o Does not apply to out-of-state __________________________________ or

_____________________________, just out-of-state individual citizens


o Protects the privileges and immunities of _________________ citizenship, and can only be

invoked by out-of-state individual citizens. Often called the Comity Clause.

o Prohibits state or local residency requirements for ________________________________

or ___________________________________ rights, mostly employment.

• Cannot require residency for access to the private job market

• Can impose residency requirement for ______________________ employment

• Employment is the most important context for these cases. But, any kind of civil

liberty must be accorded equally to in-state and out-of-state citizens.

Example 13: What if a state allowed abortion on demand, but only for in-state

women? That would probably be struck down as a violation of Article 4,

Privileges and Immunities of State Citizenship. Generally, states have to treat

in-state and out-of-state persons alike when it comes to fundamental or

important rights.


CHAPTER 6: STATE ACTION

• Rights provided by the Constitution are not protected against the world and are protected only

against _______________________

• Exception: Powers granted by the ________________ Amendment

• In every question of individual rights you must determine whether there is ___________ action.

o Generally speaking, state action means ____________________________ action whether

_________________ or __________________.

o The State Action Doctrine tells us when _________________ conduct should be treated as

if it were _________________________________ conduct for purposes of the Constitution.

• Public function - something ___________________________ done by the

government, e.g., a company town - not privately owned malls or shopping centers.

No federal constitutional right against a privately owned mall

• Significant state involvement in the private conduct

o The government cannot encourage or _____________________________

private discrimination.

Example 14: There can be no state enforcement of private agreements to

discriminate. There can be no judicial enforcement of a private contract to

discriminate.

o However, the government is not required to root out or forbid all private

discrimination, it simply must act _________________________.

Example 15: Trespass laws are routinely enforced by the government.

Trespass laws protect property owners of all races, religions, colors, and

political beliefs against trespassers of all races, creeds, etc. Trespass laws are

constitutional so long as they are enforced evenhandedly.

Example 16: When the state licenses private entities, its conduct is

constitutional so long as it is evenhanded. A state gave a liquor license to a

private club that discriminated. That was not unconstitutional because the

government gave liquor licenses to all male, female, white, black, Republican,

and Democratic clubs, i.e. evenhanded government conduct.

Note 2: Do not confuse state action with anti-discrimination statutes. Private entities are constitutionally free to discriminate, but in many instances discrimination is illegal under anti-discrimination statutes. If Congress says private employers cannot discriminate on the basis of race then racial discrimination in employment is illegal because Congress enacted anti-discriminatory legislation, not because the Constitution applies to local employers. State action is irrelevant if there is a law regulating private conduct


There are limits on how far anti-discrimination statutes can go, but they are "way out

there."

Example 17: New Jersey had an anti-discrimination statute that applied to the

Boy Scouts. NJ tried to force the Boy Scouts to allow gay scouts and leaders.

The Supreme Court ruled that Scouts have a First Amendment right to limit their

association according to their beliefs. NJ could not force them to do otherwise.

• In general, government can and does forbid all sorts of discrimination by statute. That makes

the discrimination illegal; it does not make the discrimination unconstitutional. For that you

must have state action.


CHAPTER 7: PROCEDURAL DUE PROCESS; TAKINGS CLAUSE

A. Procedural Due process (right to notice and hearing)

o When the government acts against a private party, does that party have the right to

______________________ and a _________________________? Two questions:

Is ________________, ________________________, or

___________________________ being taken?

If so, what ____________________________ is due?

o Is life, liberty, or property being taken? If so, some process is due. If not, no procedural due

process is required.

Life: Easy to recognize – death penalty.

Liberty: Freedom from ______________________________restraint or

___________________

o Loss of reputation is not a loss of liberty

Property

o Taking your car, house, or bank account, etc. – obviously taking your property –

notice and hearing necessary

o Not as obvious for government jobs or benefits – you have a property right in a

government job or benefit if you have a ________________________________

_______________________________________________to that job or benefit

o If you have a mere _____________________________, then you do not have a

property right in your government job or benefit

o Legitimate entitlement - You are ____________________ to something

whenever the government says you are

Example 18: If you can only be fired “for cause,” then you have an entitlement

to have “cause” shown with appropriate process.

Example 19: If you are “at-will” and can be fired for any reason, you are not

entitled to any process.

Example 20: State Community College hires an instructor for a one-year

teaching contract. At the end of that year, the contract is not renewed.

Instructor gets no notice of why and no hearing. Is the discharge constitutional?

Answer: 1) Is there a case or controversy? ______________ Instructor lost his

job – an injury. He has standing and there is a case or controversy. 2) What


kind of issue?__________________ __________________________________3)

State action? _____________________________________________________

4) Is the right of procedural due process violated? Depends on whether he had

a legitimate entitlement to continued employment. Answer: __________All he

was promised was a one-year contract.

o If life, liberty, or property is taken, what process is due?

• Questions regarding what procedure is due are decided by a

______________________________________ approach

o Balance the (i) individual _________________________ at stake and the (ii)

____________________ of the procedure claimed in protecting that interest

against (iii) the government’s interest in _____________________________ and

reducing cost.

Note 3: A public employee, fired from a tenured position (i.e., anyone who can be fired for cause) must have some opportunity to be heard _____________________ termination.

B. Takings and just compensation

o The Takings Clauses of the Fifth and Fourteenth Amendments requires that private property

shall not be taken for public use without

______________________________________________

o The 14th Amendment applies that right to __________________________________ and

____________________________________________

o Public Use

Basically: Any use the government wants to make of private property

Government may take private property to resell to another private party for a

development project

Government may _______________________ the use of private property and thereby

impair its value without actually _______________________ private property for public

use

o Such restrictions on use are mere________________________________ and no

compensation is required in order to regulate private property. Therefore, need

to ask whether there has been a taking, which requires compensation or a mere

regulation, which does not.

o Is it a taking?

When the government takes_______________________________ it is a taking and

_____________________________________ is required.


When the government _____________________________________________________

private property or requires private persons to allow others to occupy private property,

it is a taking

Where there is no ___________________________ occupation there is usually no

taking even when regulations significantly impair the value of private property.

o ___________________________________, environmental, and historic

preservation laws are not takings.

o If a law or regulation allows some economically ________________________

use of private property it is not a taking.

o If the law completely destroys __________economic use, there is a taking.

o What is just compensation? ____________________________________________ at the

time of the taking


CHAPTER 8: EQUAL PROTECTION

The Equal Protection Clause protects against _______________________________. Whether there is a

violation depends on the ____________________________________ used. Some classifications trigger

___________________________________, which means that the law is almost always _____________.

Many classifications require only a ________________________________, which means that the law is

almost always ___________________. Some classifications receive ____________________________

scrutiny, which means that they will be upheld if the government has a very good reason for using them.

A. Suspect Classifications – Strict Scrutiny

• Race (ethnicity, national origin) classification

o Triggers strict scrutiny and requires that the government show a______________________

state interest.

o Since that showing can almost never be made, any law that burdens a racial or ethnic

minority will likely be struck down.

o When do you have a racial classification? When is a law that is neutral on its face treated as

a racial classification?

Example 21: The Village of Arlington Heights was zoned for single-family

homes with a 2-acre minimum. Complaint alleged this was in effect a racial

classification because of its effect, i.e. it effectively priced out poor people,

some of whom would have been racial or ethnic minorities. Thus, the effect was

to keep the town all white. The U.S. Supreme Court said that under the

Constitution, a law is treated as a racial classification only if there is

discriminatory ______________________. It is not good enough to show that

the law affects blacks and whites differently on a statistical basis. To show

racial discrimination you must prove that it was intended to discriminate on the

basis of race.

o Affirmative Action - A racial classification favoring minorities.

Triggers strict scrutiny - government must show a compelling reason to discriminate in

favor of minorities.

Upheld when the affirmative action plan ______________________________ corrects

past discrimination against minorities. Not enough to point to the general history of

discrimination – must show that the affirmative action specifically corrects

discrimination by the particular entity or agency now subject to the affirmative action.

Supreme Court has upheld affirmative action in college admissions on the grounds that

racial diversity is important to education. However, the Court is very demanding as to

the kind of admission plan that will survive review: (i) must be carefully constructed to


evaluate each applicant on his/her own merits; no quotas allowed; must be holistic

decision.

• Alienage (Classification based on U.S. citizenship)

o Classifications based on U.S. citizenship are suspect and trigger strict scrutiny, requiring a

________________________ interest.

Exception – Applies to the ____________________ government - Congress has plenary

power over citizenship and naturalization. Federal classifications are valid in this area

unless they are _____________________________ and

__________________________________. Any reasonable regulation of aliens by the

federal government will survive.

Exception - States and localities may require U.S. citizenship for participation in

___________________________________ functions. For example: voting and serving

on a jury

Laws requiring U.S. citizenship for certain types of public employment. For example: law

enforcement personnel and public school teachers

o General rule – States and localities cannot require U.S. citizenship for access to

______________________ employment or for __________________________

benefits, e.g. in-state tuition.

B. Intermediate Scrutiny: Legitimacy and Gender

• Legitimacy and gender classifications will be sustained if they are ________________________

related to __________________________________ government interests.

o Gender classifications will not be upheld because of ________________________ or archaic

custom

o May only be sustained if there is a strong ___________________________________

justification for distinguishing between men and women. This is increasingly rare.

C. Every Other Classification: Rational Basis Test

• In order to survive the rational basis test, laws must be rationally related to a legitimate

government interest.

D. Fundamental Rights

• Government infringement of a fundamental right triggers strict scrutiny – true under both due

process and equal protection.

o If a law denies a fundamental right to __________________ persons it violates substantive

due process. If a law denies a fundamental right to only ____________________ persons it

violates equal protection.


• The fundamental right of voting is usually dealt with under _____________________________

o One person/one vote - requires equal size districts, i.e. same number of voters

Carefully arranging voters to advantage one political party and disadvantage the other is

political __________________________ - in general, this is treated as a non-justiciable

__________________________________________________.

Racial gerrymandering - drawing the district to advantage or disadvantage a racial

minority. If done with purpose of disadvantaging racial minority - unconstitutional. If

done to advantage minority representation - required by Voting Rights Act.

• Exception - Court struck down geographically-based preclearance requirement of

Voting Rights Act

• Substantive due process protects personal rights (modern term is "privacy" rights)

o Contraception

o Abortion

A woman has a fundamental right to terminate her pregnancy until

__________________________ of the fetus. After viability, the state has a compelling

interest in protecting the fetus' future.

A state may regulate abortion as long as it does not impose an ______________

__________________________ on a woman’s right to terminate her pregnancy.

• Informed consent requirements are ok

• 24-hour waiting periods are ok

• Parental notification requirements are ok for unmarried, underage females

• Parental ___________________requirements are not ok

• Spousal consent requirements are not ok

• No government _________________________ of abortions is ever required

• Roe v. Wade is the ultimate challenge to the conventional approaches to

constitutional law

o Sexual Activity - Constitutional right to sexual intimacy between consenting adults

o Family rights - People have a fundamental right to _________________ with close relatives

Exam Tip 8: U.S. v Windsor (2013) struck down the federal Defense of Marriage Act. Court did not say sexual orientation was a suspect classification and therefore subject to strict scrutiny. Court did not say that marriage was a fundamental right. Court did say that when a state chooses to recognize same sex marriage, the federal government has no legitimate reason not to do so. Court seems to believe that the Act was animated by fear or prejudice against gays and that these motivations are not legitimate reasons for legal restrictions. The case thus left open two questions that may be appropriate law school exam questions: (i) Why isn't animus a legitimate basis for legislation; (ii) How does the case affect state laws akin to the federal DOMA? Are state laws restricting same sex marriage any different from DOMA in terms of their motivation?


Does the historic pattern of states' control of marriage laws matter constitutionally? If so, why?


CHAPTER 9: INDIVIDUAL RIGHTS – FREEDOM OF SPEECH

A. Freedom of Speech

Content-__________________ regulations are usually upheld. Content-_________________

regulations are generally struck down.

• Content-neutral regulations: Time, place, and manner restrictions - Three principles used to

identify valid time, place, or manner regulations:

o Must be content neutral on its ________________ and as _____________________ -

cannot grant ____________________________________ to an executive officer

o Must be a _________________________________ for speech as opposed to a

_________________________________________ of speech, i.e., must allow substantial

other opportunities for speech to take place

o Must _________________________ serve a ___________________________________

state interest (does not require a _________________________________ interest)

• Content-based restriction on speech - Generally struck down

o Requires proof of a _______________________________ government interest

Vagueness - If a law gives no clear ______________________ of what is prohibited it

violates due process

Overbreadth - If a law burdens __________________________ more speech than is

necessary to protect a _______________________________ interest, it violates the

First Amendment

• A category of overbroad laws are those regarding “fighting words,” i.e., words that

would cause a breach of the peace. In theory, fighting words are not protected

speech and can lawfully be suppressed. In fact, all fighting words statutes are

unconstitutionally vague and/or __________________________. (Today “fighting

words” are often called “hate speech.”)

o Types of speech that can be prohibited – examples of a compelling interest:

Incitement to _____________________________ violence – must be incitement to

violence here and now.

Obscenity

Defamation – words that damage the reputation of another by factually inaccurate

statements

• Fighting words are technically an exception, but in fact statutes are found to be

overbroad.


Note 4: Re animal cruelty - Recently the Supreme Court, in a case regarding a statute prohibiting videos of pit bull fighting, held that the statute was overbroad and was not removed altogether from the protection of free speech. Therefore, Court was not prepared to add animal cruelty to the list of exceptions.

o Commercial Speech – Content-based restrictions on commercial speech do not trigger the

compelling government interest test. This type of speech has its own test.

Basic Rule: _________________________ and ______________________________

commercial advertising must be allowed.

Most regulations of commercial advertizing are struck down. However, there are three

exceptions:

• Commercial speech that is ____________________________ can be suppressed.

• Commercial speech that pertains to __________________ products can be

prohibited.

• Commercial speech can be suppressed if there is a _________________________

state interest and reasonably necessary degree of suppression.

• Speech in particular contexts

o Government employees

General Rule: Government employees have free speech rights; generally, they cannot be

hired or fired based on political party affiliation, political philosophy, or any act of

__________________________________ .

This does not apply to high-level policy makers and their confidential advisors.

o Corporate Speech

Political speech cannot be suppressed simply because the speaker is a corporation.

Generally, corporations have the same free speech rights as

________________________________.

Exam Tip 9: Re the Citizens United case, may be relevant to think about these questions: (i) Is money speech? (ii) Should corporations have free speech rights? In answering, recognize that these are genuinely difficult issues with serious arguments on both sides.


CHAPTER 10: FREEDOM OF RELIGION

A. Establishment of Religion

• The Lemon v. Kurtzman three-part test - never actually overruled:

o Does the law have a ______________________ purpose?

o Does the law have a _____________________________________________ that neither

______________________ nor ______________________ religion?

o Does the law avoid excessive _________________________________ with religion?

• Historically used to strike down aid to religious primary and secondary school. Today,

government aid allowed to these schools if neutral, goes to everyone, and doesn't imply official

endorsement of religious belief.

• Establishment today - Endorsement test

o It is unconstitutional for the government to _______________________ one religion over

another, or to _______________________________ religion over non-religion.

o Aiming for preventing _____________________________ endorsement of religion -

Government endorsement of religion in any context that might prove coercive on an

individual’s _____________________________ is an unconstitutional establishment of

religion.

Example 22: Sponsored school prayer is unconstitutional. No matter how non-

denominational, some children will feel intimidated or coerced. Officially-

sponsored graduation prayer has been struck down for the same reason.

Example 23: Bible reading - The Bible can be read for any reason other than its

truth; can study it as literature but cannot read it to inspire religious belief.

Example 24: The Ten Commandments: Can teach them in the school as an

example of an early legal code, but cannot post them and leave them on display

because that would be designed to inspire belief in them. Nor can you post

them in a courthouse if the context makes plain that the purpose is to endorse

religious belief.

Example 25: Laws prohibiting the teaching of ________________________

are unconstitutional.

Example 26: Nativity scenes – Permitted on public property at Christmas if you

have something else there with it to dilute the religious message.


B. Free Exercise of Religion

• Religious belief is protected _____________________________

o Public office cannot be limited to those with religious beliefs

o Clerics cannot be denied public office

• Religious _________________________ is protected against laws that have an anti-religious

purpose, i.e. protected against laws that prohibit religiously significant conduct.

o Generally-applicable laws, neutral laws not aimed at religion, must be obeyed even if one

has religious objections to them.

• Supreme Court ruling on the Religious Freedom Restoration Act requiring accommodation of

religious belief

o Per the U.S. Supreme Court - RFRA struck down in part. Insofar as it applied to state and

local governments, it was unconstitutional because it was beyond federal legislative power

to require them to accommodate religious belief. Insofar as it applied to federal entities, it

is still good law because all federal entities are supported by federal legislative power.

Federal government can accommodate religious belief in the exercise of federal power.

Similarly, states can choose to accommodate religious beliefs. But, federal government

cannot force states and localities to accommodate religious belief. That would be in excess

of federal legislative power. States can choose to accommodate religious belief.

[End of Handout]

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