constitution law exam outline

8/8/2019 Constitution Law Exam Outline

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Constitution Law Notes and Briefs

The Federal Judicial Power (Article III)

I. Judicial Review

A. Marbury v. Madison: (Marshall) the Constitution is the ³fundamental and paramount

law of the nation´ and an ³act of the legislature repugnant to the Constitution is void.´

When the Constitution (the nation¶s highest law) conflicts w/ an act of the

legislature, that act is invalid.

1. In all cases affecting Ambassadors, other public ministers, and those in

which the State is a party, the Supreme Court has original jurisdiction. In

all other cases, the Supreme Court shall have appellate jurisdiction.

2. Judicial Review: the doctrine under which legislative and executive actions are

subject to review by the judiciary.

3. Creation of 13 District Courts within 3 Fed. Circuits

B. Case or Controversy Requirements

1. Article III, § 2: requires that judicial power shall extend to cases orcontroversies

a. A matter must be concrete and non-hypothetical

b. The Supreme Court may not issue advisory opinions

i. Advisory Opinion: opinions on the legality of executive or

legislative action that don¶t involve an actual ³case.´

c. Parties must have standing

d. The claim must not arise too late (mootness) or too soon (ripeness)

for judicial resolution

C. Standing

1. A P claiming an actual injury that is personal and concrete to them.

a. It is a crucial and inseparable element of the separation of powers b/c

³the law of standing roughly restricts courts to their traditional

undemocratic role of protecting individuals and minorities against

impositions of the majority.´

2. Specific Injury in Fact

a. P must allege and prove that he/she was actually injured or will be

imminently injured

i. There must be a factual showing of perceptible harm

ii. P must be among the injured

iii. Includes violations of statutory or constitutional rights

iv.

May include environmental or aesthetic injuriesv. In terms of injunctive or declaratory relief, P must show a

likelihood of future harm

3. Causation

a. The conduct must have caused P¶s injury and the injury is likely to be

redressed by a favorable decision

i. ³But for´ the conduct, an injury would not have occurred



ii. Burden is placed on P to show that the arm alleged is ³fairly

traceable´ to D

4. Redressibility

a. A favorable court decision will remedy the injury (look to the causal

connection btwn the alleged injury and the judicial relief asked)

5. 3rd

Party Standinga. P may not assert claims to relief on the legal rights or interests of 3rd

parties EXCEPT:

i. If the relationship is close btwn P and the injured 3rd party

ii. The injured 3rd party is unlikely to be able to assert their own

rights

a) Ex: Criminal Ds may raise rights of prospective jurors to

be free from discrimination

iii. The greater the identity of the interest w/ the rightholder

b. Organizations have standing if its 1) members have standing and 2) the

injury is connected to the purpose of the organization

6. Generalized Grievances

a. A P raising only a generally available grievance about the gov¶t doesn¶t

state an Article III case or controversy (Lujan v. Defenders of Wildlife)

i. This means claiming only harm to his and everyone¶s interest

in proper application of the Constitution and seeking relief

that does not DIRECTLY benefit him any more than them.

b. P may not sue as a ³taxpayer´ or a ³citizen´ interested in having the

gov¶t follow the law (Frothingham v. Mellon)

c. Congressman lack standing to challenge constitutionality of Acts passed

into law. (Raines v. Byrd)

7. Zone of Interest a. The zone of interest is purely prudential and prudential standing

obstacles may always be negated by express action of Congress.

b. Congress has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where none

existed before

8. Legislative Standing

a. Legislators have no standing to bring a suit b/c the alleged injuries are

wholly abstract and widely dispersed (Raines v. Byrd).

D. Mootness and Ripeness

1. Ripeness

a. Generally a court may not review a statute until it has been violated

b. Involves situations where the dispute is insufficiently developed and is

too remote or speculative to warrant judicial action

c. A real or immediate threat of harm must exist

2. Mootness

a. If P¶s injury ended after the lawsuit was filed (due to changing

circumstances in the facts or the law), the suit is dismissed as moot.



b. The controversy must exist at all stages of the lawsuit

c. Exception:

i. Cases that are capable of repetition yet evading review

ii. Class action suits

E. Political Question

1. An issue that the federal courts refuse to decide b/c it properly belongs to thedecision-making authority of elected officials (prevent the role of the judiciary

from encroaching either of the other branches).

2. Political question cases are nonjusticiable (incapable of being decided by the

court) and federal courts will dismiss them (Baker v. Carr)

a. Foreign policy

b. Ratification of Amendments

c. Organization of State gov¶t

d. Impeachment

e. Art. IV Guaranty Clause: the Court declines to address the issue of

whether a state is providing a republication form of gov¶t

f. AdvisoryO pinions

F. Impeachment Proceedings (Article II, § 4)

1. The Judiciary and the Supreme Ct do not have any role in impeachment b/c:

a. Judicial review would be inconsistent w/ the Framer¶s insistence that the

system be one of checks and balances (counterintuitive since they¶d get

more power over Congress)

b. There¶d be 2 sets of proceedings for those who committed impeachable

offenses (impeachment trial and criminal trial)

c. The word ³sole´ is only found in the House and Senate Impeachment

Clauses

G. Presidential Elections1. Article II § 1: each State shall appoint in a manner as the Legislature may direct,

a number of electors who in turn meet in their respective states (the Electoral

College) to vote for the top 2 fed. executive officers.

2. The Electoral College: Congress shall resolve any inconclusive vote by the

Electoral College

II. Standard of Review

A. Strict Scrutiny: when applied, discriminatory statute is nearly always struck down

1. Fundamental Rights (those rights expressed or implied in the Constitution)

B. Intermediate Scrutiny

1. 14th Amendment Protection

2. Education

3. Commerce Clause, Taxing Power

a. Rational basis is applied on occasion, more often the Commerce Clause

analysis depends on:

i. Whether the activity regulated has a ³substantial economic

effect´ on interstate commerce

ii. Activity has such an effect in the ³aggregate´ OR



iii. Class of activities regulated substantially affects interstate

commerce

b. Direct v. Indirect Test

4. Due Process

C. Art. VI Supremacy Clause

1. Supremacy Clause states that Constitution and federal laws are the laws of theland

2. The Hierarchy of Law

a. Constitution

b. Federal law

c. Treaties

d. ExecutiveOrders

e. State laws/statutes

The Federal Legislative Power (Article I)

I. National Power and FederalismA. McCulloch v. Maryland: Congress had the power to incorporate the Bank pursuant to

the Necessary and Proper Clause. The gov¶t of the Union, though limited in its powers,

is supreme within its sphere of action and its laws, when made in pursuance of the

Constitution, form the supreme law of the land.

1. There is nothing in the Constitution which excludes incidental or implied

powers.

B. Necessary and Proper Clause

1. Congress may use any means to achieve the results of a law as long as those

means have a rational basis and are not prohibited by the Constitution

(deemed ³necessary and proper´)

2. If a certain means to carry into effect of any of the powers expressly given by the

Constitution to the Government of the Union is an appropriate measure and not

prohibited by the Constitution, the degree of its necessity is a question of

legislative discretion.

3. US v. Comstock: The Supreme Ct found that the Constitution grants Congress

the power to order the statute allowing federal district courts to order the civil

commitment of mentally ill, sexual dangerous federal prisoners beyond the dates

they would otherwise be released.

a. ³It is necessary and proper for Congress to protect the public from

dangers created by the fed. criminal justice and prison systems.´

C. Term Limits and Ultimate Sovereignty1. The 10

thAmendment

a. Powers not granted to the federal gov¶t nor prohibited to the States

by the Constitution are reserved to the states or the people

b. Congress may not compel state action

i. Congress may induce state action by putting strings on grants

that expressly state the conditions

II. Commerce Clause (Art. I, § 8)



A. Before the New Deal

1. The power to regulate interstate commerce is the power to control the means

by which that commerce is conducted

2. Gibbons v. Ogden, 22 US 1 (1824): Marshall concluded that the regulation of

navigation by steamboat operators and others for purposes of conducting

interstate commerce was a power reserved to/exercised by Congress. D wasgranted the right to operate his ferry.

a. Commerce is the ³commercial intercourse´ btwn nations and parts

of nations«.regulated by prescribing rules for carrying on that

intercourse.

B. Dormant Commerce Clause:

1. State and local laws may not place an undue burden on interstate commerce

(in other words states cannot regulate things in other states that Congress

has taken no action)

a. A state may not have legislation inconsistent w/ federal which regulates a

purely international affair regarding trade or the police power (interstate

commerce).

b. State laws must yield to Congress even though they¶re enacted in

pursuant of power acknowledged to remain in the states.

i. While the commerce power doesn¶t stop at the external boundary

of a State, it doesn¶t extend to commerce which is completely

internal. So things like state inspection laws, health laws, and

laws for regulating internal transportation fall within state police

power, not Congress.

2. Court balances interest of state in regulating local matters w/ federal

interest in creating uniformity

a. To be upheld, the law must pursue a legitimate state end, be rationallyrelated to that end, and the burden imposed in interstate commerce must

be outweighed by the state¶s interest in enforcement of that law

C. Judicial Limits on Commerce Power

1. Direct v. Indirect Test

a. Direct: implies that the activity or condition invoked or blamed shall

operate proximately to provoke the effect.

i. The distinction turns on the matter in which the effect is

brought about.

ii. Regulation of commerce applies to the subject of commerce

and not to matters of internal police

b. Ex: manufacturing is a local action of the States and cannot be regulated

by Congress (United States v. E.C. Knight Co.)

2. Substantial Economic Effects Test

a. The Shreveport Rate Case: Congressional authority extends to

interstate carriers as instruments of interstate commerce. The fact that

carriers are instruments of intrastate and interstate commerce does not



preclude the federal power from being exerted. This is b/c the rate that is

charged within the state is affecting the rate being charged out of state.

i. Railroads cl ear ly fall under interstate commerce since it¶s

transportation.

3. Stream of Commerce Test

a. Some local activities could be regulated by Congress b/c they could beviewed as themselves ³in commerce or an integral part of the current of

commerce.´

4. National Police Regulation

a. It is for the courts to decide the national or local character of the subject

of regulation, by balancing the national interest against the state interest

in the subject.

b. If the state interest is slight compared w/ the national interest, the courts

will declare the statute unconstitutional as an unreasonable burden on

interstate commerce.

D. After the New Deal

1. Judicial Deference Toward Exercise of the Commerce Power

a. Manufacturing is not itself interstate commerce, but the interstate

shipment of manufactured goods is commerce.

i. Congress may prohibit the interstate shipment of goods produced

under forbidden substandard labor conditions as a regulation of

interstate commerce. (US v. Darby)

b. The constitutional power of Congress to regulate interstate commerce

can ³neither be enlarged nor diminished by the exercise or non-exercise

of state power.´

c. Congress may exercise power over intr ast ate activities as a means to

exercise its legitimate power to regulate interstate commerce2. Substantially Affecting Commerce

a. Acts which directly burden or obstruct interstate or foreign commerce, or

its free flow, are within the reach of Congressional commerce power,

including labor disputes (NLRB v. Jones & Laughlin)

b. So long as the activities have a close and substantial relation to interstate

commerce that their control is essential to protect that commerce,

Congress may regulate.

3. Civil Rights Act of 1964

a. Congress could conclude they have a rational basis for regulating

commerce if there¶s enough testimony to demonstrate the burden of

discrimination

4. Crime

a. Article I, § 8: Congress is allowed to punish the counterfeiting of

money, piracies, and felonies committed on the high seas, and

offenses against the law of nations; even where the extortionate

transactions are intrastate.

E. Limitations on Regulation (US v. Lopez)



1. Congress may regulate activity under its commerce power under 3

categories:

a. Channels of interstate commerce

b. Instrumentalities or persons or things in interstate commerce

c. Activities that have a substantial effect on interstate commerce

i. Economic and commercial impactii. If the area being regulated is not economic, then substantial

effect cannot be based on cumulative impact. There must be a

relationship btwn the act and commerce (³federal hook´)

iii. An actual finding that the substantial effect exists

iv. Cannot be too attenuated

i. This means if the gov¶t or Congress is allowed to

regulate the activity, they cannot have unlimited

commerce power

2. 10th

Amendment Limit on Congressional Powers

a. Congress may not compel state action such as on taxes or activities of

public employers

b. Congress may induce state action by putting strings on grants that

expressly state the conditions. However, there cannot be coercion.

3. 11th

Amendment Limit on Congressional Powers

a. Judicial powers of the US shall not be construed to extend to any suit in

law or equity commenced or prosecuted against a citizen of a State by a

Citizen of another state

i. Also applies to subjects of any foreign state

III. Scope and Limits of the Anti-Commandeering Principle

A. The Federal Gov¶t may neither issue directives requiring the States to address particular

problems, nor command the States¶ officers, or those of their political subdivisions toadminister or enforce a federal regulatory program.

1. Congress and the federal gov¶t do not have general police power

B. State Sovereign Immunity

1. Sovereign Immunity derives from the Constitution

2. Congress cannot repeal state¶s sovereign immunity in federal court

a. Congress may not create new rights or expand the scope of rights under

the 14th Amendment, § 5.

3. The 11th Amendment restricts the judicial power under Article III and

Article I cannot be used to circumvent the constitutional limit placed upon

fed. jurisdiction

C. Spending Power (Article I, § 8)

1. Congress may tax and spend to pay the debts and provide for the defense and

³general welfare´ of the US (South Dakota v. Dole)

a. Promote the general welfare (intended to serve general public purposes)

b. Unambiguous

c. Relate to the federal interest in particular



d. Other constitutional provisions may provide an independent bar to the

conditional grant of federal funds (like the Amendments)

2. The Supreme Court held that Congress cannot use spending power to coerce the

states into enacting a federal regulatory scheme (protection by the 10 th

Amendment)

D. Commerce PowerE. Conditional Preemption

1. The Supremacy Clause states that the Constitution and the federal laws are the

supreme law of the land

2. Express Preemption

a. Federal law explicitly states that the federal law is exclusive.

3. Implied Preemption (of a regulatory field or conflicting state regulations)

a. If federal law and state law are mutually exclusive, state law is

preempted

i. If it¶s impossible to comply w/ both the State and Federal laws

ii. State may set stricter environmental standards than the Federal

law unless prohibited

b. If state law impedes the achievement of a federal objective, federal law

preempts state law

IV. State Regulation of Commerce Power

A. Dormant Commerce Clause

1. It forbids individual states from tinkering w/ even those parts of the national

economy that Congress has not regulated (where federal power remains

dormant and Congress has taken no action, express or implied, to make a

federal policy on a given subject matter).

2. Article I, § 10 bars states from imposing duties on imports or exports in foreign

commerce w/o the consent of Congress B. States have the power to regulate the areas of commerce that are local in nature

(Cooley Rule)

1. The grant of the commerce power to Congress does not preclude the states

from exercising any power over commerce. Only when Congress acts to

exercise its commerce power is a state¶s exercise of that same power

affected.

2. States can regulate:

a. Restrict subsidies to own citizens (welfare/tuition)

b. Safety regulations

c. Local issues requiring diversity (unless preempted by Congress)

d. Health

C. States may not enact laws that facially discriminate against:

1. Out-of-state commerce

2. Laws that are facially neutral but have an impermissible protectionist

purpose (favoring local economic interests)



a. When a state tries to isolate itself economically, it must show an

important interest for doing so and that it had no less discriminatory

means for obtaining that goal. (Baldwin v. Seeling)

b. A state may not use its power to discriminate against out-of-state buyers

to suppress competition even if its used to protect the health and safety of

its consumers. (Washington State Apple Advertising CommunicationCase)

3. Laws that are facially neutral but have a disproportionate adverse effect on

interstate commerce

D. The Pike Balancing Test

1. A statute that regulates even to protect legitimate state interest and the effect on

commerce is incidental will be upheld unle ss the burden on interstate commerce

clearly outweighs the State¶s legitimate purposes.

V. Privileges and Immunities Act (Article IV)

A. No State may deny citizens of other states privileges and immunities it affords its own

citizens.

1. It serves as a restraint on state efforts to bar out-of-staters from access to local

resources (like Dormant Commerce Clause), here on the basis of state re sidency

B. Application

1. Regulation based on state citizenship/residence

2. Person can claim it (but not a corporation or an alien)

3. Regulation is of fundamental interest and not recreation or simple pleasure

C. Review (Discrimination)

1. If the law does not discriminate against out-of-staters:

a. Privilege and Immunities Clause of Art. IV apply

b. Dormant Commerce Clause is violated if law burdens interstate

commerce and burdens exceed its benefits2. If the law discriminates against out-of-staters:

a. Privileges and Immunities Clause violated if it interferes w/ ability to

earn a living (civil liberties or economic activities)

b. Dormant Commerce Clause violated unless it¶s necessary to achieve

important gov¶t interest

i. Market-Participant Exception: a state is permitted to influence

a ³discrete, identifiable class of economic activity in which it is a

major participant.´

i. Where the gov¶t is acting as a business, the state may

choose to use the gov¶t agency to perform work w/o

violating the Privileges and Immunities Clause

ii. Congressional approval of discrimination

The Federal Executive Power (Article II)

I. Separation of Powers

A. Article II vests executive power in the President w/o qualification



1. The President make take any action that is not prohibited by the Constitution or a

statute.

a. President cannot order policy, he can only suggest it

2. 3 Zones of Executive Encroachment on Legislative Powers (Youngstown

Sheet & Tube)

a. When President acts with the authority of Congress = the acts are presumptively valid

b. When President acts in the absence of either Congressional grant or

denial of authority = he can only rely upon his own independent powers

i. There is a zone in which he and Congress may have concurrent

authority depending on the events

c. When President acts with the expressed or implied will of Congress =

rely on Constitutional powers minus any powers of Congress

B. Checks and Balances

1. Every law is actually the product of 2 branches of gov¶t

a. Congress legislates while the President participates through veto power

2. The Counter?

a. Impeachment

II. Executive Authority (Art. II)

A. Foreign Policy

1. Treaties

a. Negotiated by the President and effective when ratified by the Senate

b. Equal Supremacy w/ Acts of Congress

2. Executive Agreements

a. Negotiated by the President and effective when signed by the President

and the head of the foreign country

b. Senate approval not requiredc. It takes precedence over conflicting state policy (US v. Belmont)

B. Discretion DuringWar or Terrorism

1. The Constitution confers upon Congress the power to ³declare war.´

2. However, as the commander-in-chief, the President can send and direct troops

abroad w/o congressional approval when:

a. Maintaining neutrality

b. Protecting citizens abroad

c. Ensuring nat¶l security

3. Limits

a. Strongest (when Congress approves) and weakest (when Congress

disapproves)

b. Power to carry out the law, but not make the law

4. Habeas Corpus (Art. I, § 9)

a. A protection of personal liberty that allows one who is arrested and

detained by the government the right to have a court direct the

government official holding him in custody to ³produce him´ with

provided good reason.



b. Habeas Corpus shall not be suspended except in cases of invasion.

C. Domestic Affairs

1. Appointment Clause (Art. II, § 2)

a. The President shall appoint superior officers (ambassadors, federal

judges like the Supreme Court, and officers of the US)

b. Congress was allowed to vest appointment of inferior officers in either the President acting solo, the heads of department, or lower federal

courts

c. Congress may not give itself or its officers the appointment power

2. Removal Power

a. Unless limited by statute, the President may fire any executive branch

officer.

b. Congress may limit removal to good cause when independence from the

President is desirable

3. Pardon (the power to impose less severe punishment)

a. President may pardon those accused or convicted of federal crimes

b. Crimes must be federal

c. President may not pardon civil liability, including civil contempt

d. President cannot pardon anyone for the crimes for which they were

impeached for

III. Congressional Control over the Actions of Executive Branch

A. Nondelegation

1. Theory that Congress may not constitutionally delegate its legislative power

to another branch of gov¶t

2. One way for Congress to retain control over executive action is to be specific and

limiting in the delegation of power to agencies (so their rulemaking power in turn

is limited a. However, in practice when Congress instructs agencies to regulate, it

must give them an ³intelligible principle´ on which to base their

regulations

3. Does not prevent Congress from seeking assistance within proper limits from

both Branches

4. As long as Congress lays down by legislative act an intelligent principle to which

the person or body authorized to act is directed to conform, that legislative

action is not forbidden delegation of legislative power.

B. Bicameralism

1. The presence of having two legislative bodies, House and Senate; bills or

resolutions must be passed in identical form in both the House and Senate.

a. All bills and resolutions must be passed thru both houses w/ a

majority vote, and then signed by the president (presentment)

C. Presentment

1. Anything the Houses of Congress approves must be ³returned´ (signed) by the

President or vetoed.

a. 2/3 majority vote will override veto



D. Line Item Veto Act:

1. It gives the President the power to cancel in whole 3 types of provisions that have

been signed into law

a. Any dollar amt of discretionary budget authority

b. Any item of new direct spending

c. Any limited tax benefit2. When looking for the items to cancel, the Pres. must consider the legislative

history, purposes, and other relevant info about them. He must determine that

each cancellation will:

a. Reduce the Fed. budget deficit

b. Not impair any essential gov¶tmental functions

c. Not harm the nat¶l interest

d. The Pres. must transmit a special message to Congress notifying it of

each cancellation within 5 days after the enactment of the cancelation

provision

IV. Immunities

A. Civil Liability

1. Absolute immunity of President w/ regard to official acts (Nixon v.

Fitzgerald)

a. A president is not entitled to immunity from lawsuits based on his

unofficial actions (prior to office)

2. Qualified immunity of all gov¶t officials unless actions violate clearly established

law

B. Executive Privileges (US v. Nixon)

1. The right to withhold info from other gov¶t branches to preserve

confidentiality within the executive branch or the secure the nat¶l interest.

a. There must be justification and the president may give it up if thereis sufficient need for the info

C. Article I specifies that members of Congress are privileged from arrest during their

attendance at the sessions of their representative Houses

V. Impeachment

A. President, VP, federal judges, and officers of the US can be impeached and removed

from office for :

1. Treason

2. Bribery

3. High Crimes and misdemeanors

B. Congress has the sole power to impeach

1. The House of Representatives is given the power to recommend and vote an

impeachment proceeding

a. Requires a majority vote

2. The Senate tries after the House votes

a. Conviction requires a 2/3 vote

Bill of Rights and Individual Liberties



I. Constitutional Protection of Individual Rights

A. Art I, § 10: ban on state impairment of contracts and prohibition of state bills of attainder

and ex post facto laws (a law that retroactively changes the legal consequences or

status of actions committed or relationships existing prior to the law¶s enactment)

B. Bill of Rights

1. Bill of Rights are only effective against the gov¶t2. Nothing in the first 8 Amendments and 10th Amendment expressly restated that

powers not delegated to the gov¶t were reserved in the states

3. Bill of Rights incorporated through Due Process Clause of the 14 th Amendment

EXCEPT:

a. Right to bear arms (2nd Amend)

b. Right to not have soldier quartered in house (3rd

)

c. Right to grand jury in crim. Cases (5th)

d. Right to jury trial in civil cases (7th)

e. Right against excessive fines (8th)

C. 14th Amendment

1. ³All persons born or naturalized in the US and subject to the jurisdiction

thereof«are citizens of the US and the State in which they reside. No state shall

make or enforce any law that reduces the privileges, immunities, or deprives

citizens of life, liberty or property w/o due process.´

2. Under the 14th

Amendment, a US citizen becomes a full-fledged member of

the state community immediately upon establishing residence there. The

state may inquire however, into whether a person is truly a resident of the

state. (Equal Protections Clause)

Due Process

I. Due Process (5th and 14th Amendments)

A. Procedural Due Process

1. Procedures required before any person is deprived of life, liberty, or property.

a. Liberty = Loss of significant freedom provided by Constitution or

statute.

i. Does not include prisoners w/in prison.

b. Property = Entitlement that is reasonably expected and has not been

fulfilled.

i. Includes the continued receipt of a benefit.

2. Balancing Test

a. I

mportance of the interestb. A bility of additional procedures to increase accuracy of the fact-finding

c. Gov¶t interest in efficiency

B. Substantive Due Process

1. This is a fundamental constitutional legal theory that holds that the Due

Process Clause protects substantive rights.



2. Substantive rights are those general rights that reserve to the individual the

power to possess or do certain things (despite the gov¶t¶s desire to the

contrary).

a. Ex: Any application of the Bill of Rights to state action like freedom

of speech or religion

3. Economic Substantive Due Processa. Protection of contracts against ³impairment´ by the states

b. Protection of property against ³taking´ for public use w/o ³just

compensation

C. Takings Clause (5th

Amendment)

1. Private property shall not be taken for public uses w/o just compensation

a. The only time when gov¶t must compensate the property owner is

when private property is physically seized. There¶s no compensation

required when regulations diminish the property value

b. Eminent domain: refers to the power possessed by the state over all

property within the state, specifically its power to appropriate

property for public use

i. Just compensation: fair market value to the owner; not

based on gain to the taker

2. Possessory Taking

a. Actual gov¶t confiscation or physical occupation

i. A taking may be found when the interference w/ property

can be characterized as a physical invasion by gov¶t then

when interference arises from some public program

adjusting the benefits and burdens of economic life to

promote the common good (general welfare).

3. Regulatory Takinga. The gov¶t or state must demonstrate that it engaged in good faith

negotiations to buy the property, but not agreement was reached. Also

must demonstrate that the taking is for publ ic use.

b. There is no issue of public use when gov¶t takes property in order to

erect public property such as schools, city halls, or roadways for actual

use

4. Penn Central v. NYC: Court will consider :

a. Economic impact of regulation on property owner

b. Extent of interferences w/ ³distinct investment-backed expectations.´

c. The character of the gov¶t action.

i. Discriminatory zoning: a land use decision which arbitrarily

singles out a particular parcel for different, less favorable

treatment than the neighboring ones (not legal)

d. Zoning is only legal when it¶s accorded w/ a comprehensive plan

D. Contracts Clause (Art. I § 10)

1. No state or local gov¶t may interfere w/ existing contracts

a. Does not apply to feds.



b. Does not apply to future contracts.

c. Only applies to civil cases

2. The State continues to possess authority to safeguard the vital interest of its

people even if the exercise of that authority impairs existing contractual

obligations. (Home Building case)

II. Right to Privacy (Fundamental Right under Substantive Due Process)A. Determination that the substance of a law (the restrictions that the regulation seeks to

impose) affecting all persons is valid under the Constitution

1. Only personal rights that can be deemed ³fundamental´ or ³implicit in the

concept of ordered liberty´ are included in the guarantee of personal

privacy

2. The right of privacy is the right of the individual , married or single, to be

free from unwarranted gov¶tmental intrusion into matters that so

fundamentally affect that person

B. Griswold v. Connecticut: this case concerned a Connecticut law that banned the

encouragement or use of contraception. The Court ruled that the law violated the ³right to

martial privacy´. The general right to privacy is ³fundamental´ when it concerns the

actions of married couples b/c it is of such a character ³that it cannot be denied w/o

violating those fundamental principles of liberty and justice which lie at the base of civil

and political instructions.´

1. Liberty protects fundamental personal rights whether or not in the Bill of

Rights

2. Zones of penumbras formed by various guarantees from Bill of Rights

3. The spirit of the 1st, 3

rd, 4

th, 5

th, and 9

thAmendments as applied against the

states by the 14th

Amendment create a general right to privacy.

C. Rights Triggering Strict Scrutiny

1. Only personal rights that can be deemed ³fundamental´ or ³implicit in theconcept of ordered liberty´ are included in the guarantee of personal

privacy. This has some extension to marriage, procreation, contraception,

family relationships, and child rearing and education

2. Right to marry

3. Right to procreate

4. Right to contraceptives

5. Right to custody of children

6. Right to travel (Equal Protections Clause)

7. Right to vote (Equal Protections)

8. Freedom of speech, association, and religion

D. Undue Burden Test

1. Casey case: Whether a state abortion regulation has the purpose or effect of

imposing an undue burden which is a ³substantial obstacle in the path of a

woman seeking an abortion before the fetus attains viability.´

a. A burden may be undue b/c it is too severe or b/c it lacks a legitimate,

rational justification.

b. Reaffirms Roe v. Wade but does away w/ the trimester breakdown



2. Roe v.Wade: A woman has the right to choose to have an abortion before

viability and may obtain it w/o undue interference from the State. The woman¶s

right to end her pregnancy can only be defeated by ³compelling´ state

interests:

a. 1) protecting the potentiality of human life and

b. 2) protecting the woman¶s health.E. Rights Triggering Rational Basis Review

1. Right to practice a trade or profession

2. Right to homosexual activity

a. Consenting adults may choose to enter upon a relationship in the

confines of their homes and their own private lives and still retain their

dignity as free persons. Some things are beyond the view of the State to

judge. (Lawrence v. TX)

3. Right to die

a. A State may apply a clear and convincing evidence standard in

proceedings where a guardian seeks to discontinue nutrition and

hydration of a person diagnosed to be in a persistent vegetative state.

4. Right to education

Equal Protections

I. The 14th Amendment

A. No state shall deny to any person within its jurisdiction the equal protection of the law

1. Regulates governmental ability to classify individuals for the purpose of

receiving benefits or punishment

2. Classification must relate to proper governmental purpose and must not be

arbitrary

3. The 14th Amendment applies to state and local gov¶ts only

4. The 5th Amendment applies to federal gov¶t only

B. The Tiers of Review

1. Strict Scrutiny

a. Narrowly tailored to achieve compelling state interest

b. Burden on gov¶t to use the least restrictive alternative means in

accomplishing that interest

2. Intermediate scrutiny

a. Classification must be substantially related to an important gov¶t interest

b. Gov¶t must show exceedingly persuasive justification for the

discrimination3. Rational Basis

a. Classification is based a rational relationship to a legitimate end

II. Classification

A. Classification is on the face of the law or if the law is facially neutral, there is both a

discriminatory intent and discriminatory impact

B. Strict Scrutiny

1. Race



a. Classification based on race will be invalid unless narrowly tailored to

achieve a compelling state interest.

i. If they ever are to be upheld, must be shown to be necessary to

the accomplishment of some permissible state objective

independent of racial discrimination

ii. Ex: School segregation is unconstitutional and goes against theequal protections clause of the 14th Amendment. Separate but

equal has no place, b/c separate educational facilities is

inherently unequal. (Brown v. Board)

2. Nat¶l Origin

3. Alienage

a. Aliens are legitimately excluded from voting b/c the Court always

recognized citizenship as the defining prerequisite of political

participation.

i. Aliens cannot vote

ii. We protect them b/c of obvious discrimination in the past

4. Travel

5. Voting

a. No property ownership conditions allowed

b. One-person, one-vote applies to all states and local elections

c. Counting uncounted votes without standards in a presidential election

violates equal protection (Bush v. Gore)

d. Maximum residency requirement for voting is 50 days

C. Intermediate Scrutiny

1. Gender

a. Classifications that benefit women based on role stereotypes will not be

allowed (Reed v. Reed) b. Gender classification designed to remedy past discrimination will be

allowed. (Mississippi University forWomen v. Hogan)

i. Equal Protection also requires that the State show that gender-

based classification is substantially and directly related to its

proposed compensatory objective

2. Illegitimacy

3. Undocumented alien

a. Undocumented aliens (those who are not legally resident in the country)

have not been accorded heightened equal protection scrutiny

i. Exception: children in public school

4. Children

D. Rational basis

1. Alienage classifications relating to self-governmental and democratic process

2. Congressional regulation of aliens

3. Age

4. Handicap



a. Cleburne v. Cleburne Living Center, Inc: A Texas city denied a

special use permit for the operation of a group home for the mentally

retarded. The Court held that the denial of the special use permit to D

was premised on an irrational prejudice against the mentally retarded,

and thus unconstitutional under the Equal Protection Clause of the 14 th

Amendment.i. Only animus can explain this action (there is no way to

explain this law w/o a statement)

5. Wealth

6. Everything else

constitution law exam outline

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