Con Law Tests

CONSTITUTIONAL LAW TESTS
TO BE ABLE TO GO TO FEDERAL
COURT-
RAMPS
STANDING-
Actual or imminent injury

Causation
redressibility
- Discriminatory on its face -strict scrutiny of out of
state goods, economic acts
- Incidental burden-important state interest and no
excessive burden
Ok to limit if authorized by congress, or state is
market participant
Due Process- 5th amend
Due Process - 14th Amend
Art 4 Priv and Immunities Invalid restrictions- RULEcan treat out of staters differently if reg meet
intermediate scrutiny- NOT OK- commercial
licensing, commuter taxes, abortion and
employment (recreational licensing and natural
resource protection ok)
14th Amend Priv and Immunities of citizens
Corporations not protected)
Protects person, requires adequate notice, and
hearing- give balances interest, risk of error and
burden to govt.
Express rights and fundamental rights
CAMPERD- contraception, abortion, marriage,
possession obscenity, education, relatives, death
Any regulation on pre-viable fetus unconst. If
imposes undue burden, undue- total ban, spousal
consent, notification, record patient names,
parental consent without judicial bypass. NOT
UNDUE- 24 waiting, ban on certain methods if not
safe
P&I of 14th, citizens free to travel
Script scrutiny for total bans-regulations, undue
burden test. UNREAS- poll taxes, school board
elections by only parents, counting vague and not
uniform
Two kinds- direct appropriation, regulatory-1) perm
physical inv 2) deprive ALL econ benefit 3)
balancing economic on person vs state
1. TYPE OF DISCRIMINATION
2. WHO?
3. LEVEL OF SCRUTINY.
Dormant commerce clause
Federal Discrimination
State Discrimination
Visitors to other states
Migrants and Interstate Travel

Procedural Due Process
Substantive Due Process
Abortion-
Right to travel
Right to vote
Takings clause-
EQUAL PROTECTION-
LEVELS OF SCRUTINY
Contract clause
Ex post facto
Bill of attainder
Est clause
Free exercise
Freedom of expression
Rational basis- age, disability, federal alienage,

criminality of sex orientation- PL has burden of
proving state does not have a rational basis for the
regulation
Intermediate- gender, illegitimacy, illegal kids
school burden on the government to show
regulation substantially related to important govt
interest
Strict- race, state alienage regulation, express and
fundamental rights, voting- burden on government
to show compelling govt interest and necessary to
achieve to that interest, and narrowly tailored AFF
ACTION OK IF remedying past discrimination
ot integrating higher education
Only applies to states
Cannot apply retor- make new crime, increase
punishment, decrease evidence burden, expend
SOL
Cannot punish w/o trial, specific indv or group for
past conduct
C make no law respecting an establishment of
religion
STRICT SCRUTINY if prefers religion on its face
Neutral on face-LEMON TEST
1. law must have secular purpose
2. principal effect be secular
3. no excessive entanglement
PER SE NOT OK- school prayer, ten
commandments, graduation prayer, HS football
prayer, no teaching creationism, teachers in
religious schools OK- christmas, with others (plastic
rudolph test) ten commandments with other,
Sunday closures, tax deductions for charities,
textbooks, school lunches, library and media,
interpreters for the deaf, teachers of secular classes
in religious colleges, secular govt programs through
relig institutions, vouchers
Or prohibiting the free exercise thereof..
laws
that incidentally burden religion will be fine SMITH
TEST- state may regulate things that incidentally
burden religion if neutral on its face and generally
applicable NOT OVERRULED- Sabbath observance
unempl benefits and Amish HS attendance ( must
exempt)
Stops govt from distorting the marketplace of ideas,
Content based discrimination

Exceptions to content based
discrimination
Unprotected speech
Defamation
Commercial speech
Indecent speech
Regulating conduct
Public forum
Non public forum

Prior restraint
especially as regards political speech

Regs cannot be too overbroad or too vague
STRICT SCRUTINY- regulation generally
unconstitutional
HAFWOUD- NOT PROTECTED IF:
HOSTILE AUDIENCEFIGHTING WORDS- more than annoying of offensive,
high likelihood of imminent violence by hostile
audience ( censuring skinheads in black
neighborhood for example)
OBSCENITY- miller test- 1) prurient interest, local
standard
2) depicts in patent offensive way, specifically
defined acts, local standard 3) taken as whole, no
artistic, political, literary or scientific value,
NATIONAL STANDARD child porn not need miller
testUNLAWFUL ACTS- inciting imminent unlawful action
DEFAMATIONNot protected speech when:
Private person/private concern- pl only need
show falsity and damages private person/public
concern-pl need show falsity and negligence
public person- for both false light and
defamation, must show malice Information for
public records always protected , and
newsworthy and true
Protected if not false or relate to unlawful activity
Regulation must 1) relate to subst gov interst, 2)
directly advance interest 3) not be more than
necessary
CANT BAN LAYWERS, ALL ad for lawful product,
commercial billboards for safety and aesthetics
Can regulate, BUT must have substantial govt
purpose and leave open other alternatives ( not
nude, but ok with pasties etc)
Ok, but must have imp govt purpose ,and no more
than necess.
( no politicking on historical monuments)
Rule- gov must allow but regulation can be 1)
content neutral, 2)narrowly tailored 3) leave open
alternatives
Regulations viewpoint neutral, have rational basis
Presumed unconstitutional
OK- for nat security, and review prior govt employee
books

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What are the different levels of scrutiny used in equal protection analysis?

What are some examples of content-based discrimination in free speech and the level of scrutiny applied?

CONSTITUTIONAL LAW TESTS

Actual or imminent injury

Dormant commerce clause

Migrants and Interstate Travel

Substantive Due Process

Rational basis- age, disability, federal alienage,

Content based discrimination

Non public forum

especially as regards political speech

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