Second Look Series CONSTITUTIONAL LAW TABLE OF CONTENTS

Transcription

1 CONSTITUTIONAL LAW TABLE OF CONTENTS I. JUSTICIABLE CASE OF CONTROVERSY A. JUSTICIABLE CASE B. STANDING.. 1 C. STANDING TEST Components Third Party Standing Limited Taxpayer Standing 2 D. RIPENESS... 2 E. MOOTNESS....2 F. ABSENTION DOCTRINE.3 G. POLITICAL QUESTION DOCTRINE 3 H. STATE GROUNDS DOCTRINE..3 I. SOVEREIGN IMMUNITY: ELEVENTH AMENDMENT LIMITATIONS Exceptions II. III. EXECUTIVE POWERS..4 A. EXECUTIVE BRANCH.4 B. POWER OVER DOMESTIC AFFAIRS Appointment Power Removal Power.5 3. Impeachment Power Power of Immunity Executive Privilege Pardon Power...5 C. POWER OVER FOREIGN AFFAIRS.5 1. Foreign Relations.5 2. Treaty Power 5 3. Executive Agreements War Powers: Commander-in-Chief...6 FEDERAL LEGISLATIVE POWERS..6 A. LEGISLATIVE BRANCH. 6 B. ENUMERATED AND IMPLIED POWERS Necessary and Proper "Power" Commerce Power.6 3. Spending Power Taxing Power Property Power Investigatory Power War and Related Powers Power over Citizenship...7

2 9. No Federal Police Power Admiralty Postal Power Bankruptcy Patent/Copyright Power Power to Coin Money and Fix Weights and Measures C. TENTH AMENDMENT LIMITATIONS....8 IV. STATE INTERFERENCE WITH FEDERAL SYSTEM...9 A. SUPREMACY CLAUSE Premption Dormant Commerce Clause 9 3. Privileges and Immunities Clause...10 V. INDIVIDUAL RIGHTS.10 A. STATE ACTION Exclusive Public Functions Significant State Involvement B. FREEDOM OF SPEECH Regulation of Content of Speech Unprotected Speech Protected Speech Content Neutral Regulation of Speech C. FREEDOM OF ASSOCIATION AND BELIEF Electoral Process Campaign Contributions D. FREEDOM OF THE PRESS...15 E. FREEDOM OF RELIGION Establishment Clause Free Exercise Clause..16 F. TAKINGS Public Use Taking vs. Regulation Remedy G. EQUAL PROTECTION...19 H. SUBSTANTIVE DUE PROCESS I. PROCEDURAL DUE PROCESS Liberty Property What Due Process is Due?.23 J. PRIVILEGES OF NATIONAL CITIZENSHIP K. FULL FAITH AND CREDIT..24 L. RETROACTIVE LEGISLATION Contract Clause: Impairment of Contract Ex Post Facto Laws: Criminal Cases Only..24

3 3. Bills of Attainder Due Process Considerations..25

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5 CONSTITUTIONAL LAW I. JUSTICIABLE CASE OR CONTROVERSY A. JUSTICIABLE CASE A case or controversy, also referred to as a justiciable controversy, must consist of an actual dispute between parties having adverse legal interest at the time the case is presented and must be a proper matter for judicial determination. Whether the case is justiciable 1 depends on whether there is a case or controversy. In order for a court to hear the case plaintiff must show: (1) that she has standing to bring the claim; (2) the claim is ripe; (3) the claim has not become moot; and (4) the claim does not pose a political question. B. STANDING Standing is the issue of whether plaintiff is the proper party to bring the matter before the court. Plaintiff must show that she has or will suffer an injury caused by defendant that is redressable by the court. C. STANDING TEST The U.S. Supreme Court has established a three-part test for standing. The irreducible constitutional minimum of standing requires the plaintiff to establish: First: an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second: there must be a causal connection between the injury and the conduct complained of the injury has to be fairly... trace[able] to the challenged action of the defendant, and not... th[e] result [of] the independent action of some third party not before the court. Third: it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. 1. Components a. Injury A plaintiff must show that she has been or will be directly and personally injured by government action, which affects her rights under the Constitution or Federal Law. b. Causation There must be a causal connection between the injury and the conduct complained of. 1 That is: a matter which is capable of being decided by a court. CONSTITUTIONAL LAW 1

6 c. Redressability A decision in the litigant's favor must be capable of eliminating her grievance. 2. Third Party Standing Plaintiff cannot assert claims of others or third parties, who are not before the court, with the following exceptions: a. Inability It is difficult for the third party to assert her own rights 2. b. Close Relationship A special relationship exists between the claimant and the third party 3. c. Organizational Standing An organization may sue for its members if: (1) the interests are germane to the organization's purpose; (2) members would have standing to sue; (3) neither the claim nor relief requires participation of individual members. 3. Limited Taxpayer Standing Taxpayers have standing to: (1) challenge government expenditures as violating the establishment clause 4 and; (2) to challenge a tax bill. D. RIPENESS Ripeness refers to a claim that is ready for a court's review because an injury has occurred or will occur, and is not just hypothetical or speculative. A plaintiff is not entitled to review of a statute or regulation before its enforcement 5 unless the plaintiff will suffer some harm or immediate threat of harm. E. MOOTNESS A real controversy must exist at all stages of review. If the matter has already been resolved, the case will be dismissed as moot. 2 For example: an association may attack a law requiring disclosure of membership lists because members cannot attack the law without identifying themselves. 3 For example: a doctor can assert a patient's rights in challenging an abortion restriction. 4 In addition to economic injuries, taxpayer standing in Establishment Clause cases can be based on noneconomic injury such as having to endure the discomfort of being present for unwelcome religious activity. 5 In other words: may not obtain a declaratory judgment.

7 Thus, a court will not hear or decide a moot case unless it includes an issue that is not considered moot because it involves constitutional questions and is likely to be repeated or otherwise evade review 6. F. ABSTENTION DOCTRINE The abstention doctrine 7 was adopted by the Supreme Court to allow the federal judiciary to refrain from ruling on constitutional questions where the state judiciary is capable of rendering a definitive ruling in the matter and thus will refrain from hearing such claims G. POLITICAL QUESTION DOCTRINE A claim involving a political question is one that a court will not decide because it more properly belongs before the legislative or executive branch of the federal or state government. These are issues: (1) that are constitutionally committed to another branch of government; or are (2) inherently incapable of judicial resolution. H. STATE GROUNDS DOCTRINE Under the Adequate and Independent State Grounds Doctrine the Supreme Court will not review a final decision of a state court, notwithstanding the presence of federal questions, when the state court based its opinion on state law that is independent of the federal issues and adequate to support the judgment. In other words, if the Supreme Court s opinion on the federal issues would not change the outcome of the case because the judgment rests on unreviewable state law, the Supreme Court will not review the federal issues in the case. I. SOVEREIGN IMMUNITY: ELEVENTH AMENDMENT LIMITATIONS The Eleventh Amendment is rooted in the concept of Federalism and strikes a balance between sovereignty shared by the state and federal governments. Accordingly, the Eleventh Amendment limits the power of federal courts to hear lawsuits against: (1) state governments brought by the citizens of another state; (2) the citizens of a foreign country; (3) lawsuits instituted by citizens of the state being sued; and (4) lawsuits initiated by the governments of foreign countries. For example, the state of California could invoke the Eleventh Amendment to protect itself from being sued in federal court by: (1) its own residents; (2) residents of another state; (3) residents of a foreign country; or (4) the government of a foreign country. 1. Exceptions Four major exceptions have been recognized by the Supreme Court: 6 For example: (1) defendant voluntarily stops the offending practice but is free to resume; (2) wrongs capable of repetition but evading review -- where there is a reasonable expectation that the same complaining party would be subjected to the same action again. 7 Also known as: the Pullman doctrine. CONSTITUTIONAL LAW 3

8 a. The Eleventh Amendment does not apply to lawsuits brought against a state's political subdivisions. Thus, counties, cities, and municipalities may be sued in federal court. b. The Eleventh Amendment permits a state government to waive its constitutional protections by consenting to a lawsuit against it in federal court. For example, California could waive its Eleventh Amendment protections by agreeing to allow a federal court to hear a lawsuit brought against it. c. The third exception permits Congress to abrogate a state's Immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Congressional intent to abrogate a state's Eleventh Amendment immunity must be "unmistakably clear". d. The final exception to the Eleventh Amendment permits citizens of any state to seek an Injunction against state officials in federal court to "end a continuing violation of federal law". For example, residents of California are permitted to bring a lawsuit in federal court seeking to compel the state's governor to construct housing in compliance with the Americans with Disabilities Act, a federal statute designed to protect the rights of handicapped U.S. citizens. However, such a lawsuit would be barred by the Eleventh Amendment if the remedy sought were not injunctive relief but money damages to be paid out of the state's treasury. II. EXECUTIVE POWERS A. EXECUTIVE BRANCH The branch of the U.S. government that is composed of the president and all the individuals, agencies, and departments that report to the president and that is responsible for administering and enforcing the laws that Congress passes. B. POWER OVER DOMESTIC AFFAIRS 1. Appointment Power The President appoints ambassadors, federal judges, and all other officers whose appointments are not otherwise provided for, with advice and consent of the Senate. Congress may vest the appointment of inferior officers in the President alone, department heads, or the courts. Congress may not by itself, however, appoint members of a body with enforcement or administrative powers.

9 2. Removal Power The President can remove senior level executive officers at will, without advice and consent of Congress. Congress may remove executive officers but only through the impeachment process. Congress may provide statutory limitations 8 on the President's power to remove all other executive appointees. 3. Impeachment Power The President, Vice President, and all civil officers of the United States are subject to impeachment 9 for serious crimes. Impeachment is a two-step process involving both houses of congress. A majority vote in the House is necessary to invoke the charges of impeachment and a two-thirds vote in the Senate is necessary to convict and remove from office. 4. Power of Immunity The President is immune to civil actions while in office but not for acts prior to office. Presidential aides who have exercised discretionary authority in a sensitive area, may also be immune for suits brought concerning that area. 5. Executive Privilege The President is privileged to keep certain communications secret. However, in criminal proceedings, presidential communiqués will be available to the prosecutor where a need for such information is demonstrated. 6. Pardon Power The President may grant pardons for all federal offenses; not for civil, impeachment or state crimes. C. POWER OVER FOREIGN AFFAIRS 1. Foreign Relations The President has paramount power to represent the United States in day-to-day foreign relations. 2. Treaty Power The President has the power to enter into treaties with the consent of two-thirds of the Senate Treaties may or may not be self-executing. 10 The President generally does not have any independent power ordering compliance with a treaty that is not self-executing. 3. Executive Agreements 8 For example: removal only for good cause. 9 That is: the bringing of charges. 10 That is: effective without any vote by Congress. CONSTITUTIONAL LAW 5

10 Executive agreements are agreements by the President and the head of a foreign country. They can be used for any purpose that treaties can be used for and they do not require the consent of the Senate. 4. War Powers: Commander-in-Chief The President has no power to declare war but can act militarily in actual hostilities without a declaration of war. Congress can limit the President under its power to enact a military appropriation every two years. III. FEDERAL LEGISLATIVE POWERS A. LEGISLATIVE BRANCH The branch of the federal government empowered to make the laws that are then enforced by the executive branch and interpreted by the judicial branch. The legislative branch consists of two houses of Congress, the House and the Senate. B. ENUMERATED AND IMPLIED POWERS The federal government has limited powers. Every exercise of power must be traces to the Constitution. Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out. 1. Necessary and Proper "Power" Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. Necessary and Proper Clause standing alone cannot support a federal law. It must work in conjunction with another federal power. 2. Commerce Power Congress has the exclusive power to regulate all foreign and interstate commerce. To be within Congress's power under the Commerce Clause, a federal law regulating interstate commerce must either: a. Regulate the channels of interstate commerce. b. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or c. Regulate activities that have a substantial effect on interstate commerce. (1) Intrastate Activity

11 When Congress attempts to regulate non-economic 11 intrastate activity, the federal government must prove to the court that the activity in fact affects interstate commerce. Under the broadly construed interstate commerce power, Congress may prohibit private racial discrimination in activities that must have a substantial effect on interstate commerce. 3. Spending Power Congress may spend to "provide for the common defense and general welfare." Non-spending regulations cannot be supported by the General Welfare Clause and are limited by other provisions of the constitution. Remember the federal government can tax and spend for the general welfare; it cannot directly legislate for it. Accordingly, nonspending regulations cannot be supported by the General Welfare Clause. 4. Taxing Power Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed. However, neither Congress nor the states may tax exports to foreign countries. 5. Property Power Congress has the power to dispose of and make rules for territories and the other properties of the US. While there is no express limitation on Congress's power to dispose of property, federal takings 12 must be for the purpose of effectuating an enumerated power under some other provision of the constitution. 6. Investigatory Power The power to investigate is implied. Investigation must be expressly or impliedly authorized by the appropriate congressional house. 7. War and Related Powers The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy. 8. Power over Citizenship Congress may establish uniform rules or naturalization. This gives Congress plenary power over aliens. a. Exclusion of Aliens 11 In other words: non commercial. 12 That is: eminent domain. CONSTITUTIONAL LAW 7

12 Aliens have no right to enter the United States and can be refused entry summarily because of their political beliefs. However, resident aliens are entitled to notice and a hearing before they can be deported. b. Naturalization and Denaturalization Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen -- native-born or naturalized -- without her consent. 9. No Federal Police Power Congress has no general police power, However, Congress has police power type powers over the District of Columbia, federal land, military bases, and Indian Reservations. 10. Admiralty Congress's admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction. 11. Postal Power The postal power is exclusive. Under the postal power, Congress may validly classify and place reasonable restrictions on use of the mails, but may not deprive any citizen or group of citizens of the general mail "privilege." 12. Bankruptcy Congress's power to establish uniform rules for bankruptcy is nonexclusive; states may legislate in the field as long as their laws do not conflict with federal law. 13. Patent/Copyright Power Congress has the power to control the issuance of patents and copyrights. 14. Power to Coin Money and Fix Weights and Measures. Congress has the power to coin money and fix standards for weights and measures. C. TENTH AMENDMENT LIMITATIONS The Tenth Amendment provides that all powers not delegated to the federal government by the Constitution are reserved to the states. Most governmental power is concurrent in that it belongs to both the states and federal government. When the states and federal government pass legislation on the same subject matter the Supremacy Clause provides that the federal law is supreme and conflicting state law is void. A valid act of congress or federal regulation supersedes any state or local action that actually conflicts with the federal rule, whether by commanding conduct inconsistent with that required by the federal rule, or by forbidding conduct that the federal rule is designed to foster. The conflict need not relate to the conduct, it is sufficient if the state or local law interferes with achievement of a federal objective.

13 IV. STATE INTERFERENCE WITH FEDERAL SYSTEM A. SUPREMACY CLAUSE The Supremacy Clause provides that federal law is the supreme law of the land. Therefore, a federal law may supersede or preempt local laws. If a federal law conflicts with a state law, the state law will be invalid. 1. Preemption In the absence of an express conflict between state and federal law, the state law may still be invalid where the federal government has intended to "occupy" the entire field, precluding any state or local regulation. To determine whether the federal government has intended to "occupy the field", the court will consider the: (1) comprehensiveness of the federal scheme; and (2) creation of an agency to administer law. 2. Dormant Commerce Clause If Congress has not enacted laws regarding a subject, a state or local government may regulate local aspects of interstate commerce. To do so, however, it must not discriminate against or unduly burden interstate commerce. If it does, the state regulation will violate the Commerce Clause. a. Discrimination against Out-of-State Interests State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid. (1) Exception--Important State Interest A discriminatory state law may be valid if it furthers an important, noneconomic state interest and there are not reasonable nondiscriminatory alternatives available. (2) Exception--State as Market Participant A state may prefer its own citizens when acting as a market participant. b. Undue Burden on Interstate Commerce If a non-discriminatory state law 13 burdens interstate commerce, it will be valid unless the burden outweighs the promotion of a legitimate local interest. The court will consider whether less restrictive alternatives are available. (1) State Control of Corporations 13 That is: a law that treats local and out-of-states interests alike. CONSTITUTIONAL LAW 9

14 A different standard may apply to statutes adopted by the state of incorporation regulating the internal governance of a corporation because of the states' long history in regulation of the corporations they create and their strong interest in doing so, even a statute that heavily impacts interstate commerce may be upheld. 3. Privileges and Immunities Clause The Privileges and Immunities Clause prohibits discrimination by a state against nonresidents on the basis of "fundamental rights" involving commercial activities or civil liberties. a. Exception The state law may be valid if the state has a substantial justification for the different treatment. In effect, the state must show that non-residents either cause or are part of the problem that the state is attempting to solve and there are no less restrictive means to solve the problem. V. INDIVIDUAL RIGHTS A. STATE ACTION As the Constitution generally applies only to government action, to show a constitutional violation "state action" must be involved. This concept applies to government and government officers at all levels: local, state, or federal. Note that state action can be found in actions of seemingly private individuals who: (1) perform exclusive public functions; or (2) have significant state involvement. 1. Exclusive Public Functions Activities that are so traditionally the exclusive prerogative of the state are state action no matter who performs them. 2. Significant State Involvement State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. Merely permitting the conduct, granting a license or providing essential services is insufficient. A state must be "significantly involved" in the private entity. Mere acquiescence by the state in private conduct is not enough. Also, states are not constitutionally required to outlaw discrimination. They are only forbidden to facilitate, encourage, or authorize it. B. FREEDON OF SPEECH The First Amendment prohibits Congress from abridging the freedoms of speech and press, or interfering with the right of assembly. These prohibitions are applicable to the states through the Fourteenth Amendment.

15 1. Regulation of Content of Speech When a state regulates content of the speech it is presumptively unconstitutional, the burden is on the state to prove that the regulation is necessary to serve a compelling government interest and that the means are narrowly tailored. The Supreme Court has determined that certain categories of speech are unprotected despite the First Amendment. These unprotected speech categories include the following: 2. Unprotected Speech a. Defamation Defamatory statements can be burdened. If the defamatory statement is about: (1) Public Officials/Public Figures The plaintiff must prove that the statement is false and actual malice was present. (2) Private Persons with a Matter of Public Concern The plaintiff must prove that the statement is false and the publisher was at least negligent with respect to the falsity. (3) Private Persons with a Matter of Private Concern There is no requirement that the statement be proven false or that malice was present. b. Fighting Words Speech can be burdened if it constitutes fighting words which are personally abusive and that are likely to incite immediate physical retaliation in an average person. Words that are merely annoying are not sufficient. The Supreme Court does not tolerate fighting word statues that are designed to punish only certain viewpoints on race, religion, or gender. However the Court has upheld a ban on cross burning when done with the intent to intimidate. c. Obscenity Obscene speech is not protected. Under the Miller Test, speech is obscene if it describes or depicts sexual conduct that, taken as a whole, by the average person: (1) Appeals to the prurient interest in sex, using a community standard; (2) Is patently offensive and an affront to contemporary community standards; and (3) Lacks serious value: literary, artistic, political, or scientific, using a national standard. d. Minors CONSTITUTIONAL LAW 11

16 The state can adopt a specific definition of obscenity to apply to materials sold to minors. However, the government cannot prohibit the sale of goods to adults that would be inappropriate to minors. e. Pictures of Minors To protect minors from exploitation, the government may prohibit the sale of distribution of visual depictions of sexual conduct involving minors, even if the material would not be found obscene if it did not involve children. f. Advocacy of Imminent Lawless Action Speech can be burdened if it creates a clear and present danger of imminent lawless action. Under the Brandenburg Test the government may prohibit speech if: (1) Speech advocates imminent lawless action; and (2) Threatened action poses serious risk of harm; and (3) Speaker specifically intends the unlawful activity to occur; and (4) Illegal action is likely to occur. g. Commercial Speech As a general rule, commercial speech is afforded First Amendment protection if it is truthful. However, commercial speech that proposes unlawful activity or that is misleading or fraudulent may be burdened. Any other regulation of commercial speech will be upheld only if it: (1) Serves a significant government interest. (2) Directly advances that interest; and (3) Is narrowly tailored to serve that interest. 3. Protected Speech If the government is regulating speech content, then the standard of review is strict scrutiny. A law will be upheld if it is necessary to achieve a compelling government interest. The government must demonstrate that it cannot achieve the goal through any less restrictive alternative. Strict Scrutiny Balancing Test: a. Government Objective

17 The objective must be compelling and the means used to achieve that object must be necessary. b. Plaintiff's Interests What are the plaintiff's interests? What is she trying to achieve or protect? c. Less Restrictive Alternative The government has the burden of showing that it could not achieve the result in a less burdensome way. 4. Content Neutral Regulation of Conduct The Supreme Court has allowed the government more leeway in regulating conduct related speech allowing it to adopt content neutral time, place and manner restrictions. The limitations depend on whether the speech involves a public forum or a nonpublic forum. a. Time, Place or Manner Restrictions on Speech The government has the power to regulate the conduct associated with speech and assembly, although the breadth of this power depends on whether the forum involved is a public forum, a designated public forum 14, or a non-public forum. (1) Public Forums and Limited Public Forums Public property that has historically been open to speech-related activities 15 is called a public forum. Public property that ahs not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, by practice of policy 16 is called a limited public forum. The government may regulate speech in public and limited public forums with reasonable time, place, and manner regulations that are; (1) Content Neutral; (2) Narrowly tailored to serve a significant government interest; and (3) Leaves open alternative channels of communication. (2) Non-Public Forum Speech and assembly can be more broadly regulated in nonpublic forums 17. In such locations, regulations are valid if they are; (1) Viewpoint neutral; and (2) Reasonably related to a legitimate government purpose. b. Other Considerations 14 Also referred to as: limited public forum. 15 For example: streets, sidewalks and public parks. 16 For example: schoolrooms that are open for after-school use by social, civic, or recreation groups. 17 For example: government owned forums not historically linked with speech: military bases, schools in session, government workplaces. CONSTITUTIONAL LAW 13

18 (1) Prior Restraints Prior restraints prevent speech before it occurs, rather than punish it afterwards. They are rarely allowed. The government has a heavy burden in justifying a prior restraint; it must show that some special societal harm will otherwise result. To be valid, a system for prior restraints must provide the following safeguards: (1) The standards must be narrowly drawn, reasonable, and definite; (2) An injunction must promptly be sought; and (3) There must be prompt and final determination of the validity of the restraint. (2) Unfettered Discretion A regulation cannot give officials broad discretion over speech issues; there must be defined standards for applying the law. If a statute gives licensing officials' unbridled discretion, it is void on its face and speakers need not even apply for a permit. If the licensing statute includes standards, a speaker may not ignore the statute; she must seek a permit and if it is denied, she can challenge the denial on First Amendment grounds. There must be a prompt review process without undue delay. (3) Overbroad Regulation Invalid If a regulation of speech or speech related conduct punishes a substantial amount of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid unless a court has limited construction of the regulation so as to remove the threat to constitutionally protected speech. If the regulation is not substantially overbroad, it can be enforced against persons engaging in activities that are not constitutionally protected. (4) Void for Vagueness Doctrine If a criminal law or regulation fails to give persons reasonable notice of what is prohibited 18, it may violate the Due Process Clause, This principle is applied somewhat strictly when First Amendment activity is involved. C. FREEDOM OF ASSOCIATION AND BELIEF The right to join together with other persons for expressive or political activity is protected by the First Amendment. However, the right to associate for expressive purposes is not absolute. Infringements on the right may be justified by compelling state interests, unrelated to the suppression of ideas that cannot be achieved through less restrictive means. 1. Electoral Process 18 For example: lewd speech

19 Laws regulating the electoral process may impact the right of speech, assembly and association. In determining whether the electoral process is valid, the following balancing test is used: (1) if the restriction on First Amendment activities is severe, it will be upheld only if narrowly tailored to achieving a compelling interest, and (2) if the restriction is reasonable and nondiscriminatory, it will be upheld on the basis of states' important regulatory interests. 2. Campaign Contributions Laws limiting the amount of money that a person or group may contribute to a political candidate are valid. But the government may not limit the amount that an individual or group may spend on a political campaign. However, the government may limit the amount that a corporation or unincorporated associate contributes to a political candidate. D. FREEDOM OF THE PRESS The press has the right to public information about a matter of public concern. This right can only be restricted by a sanction that is narrowly tailored to further a state interest of the highest order. 1. The First Amendment guarantees the public and press access to criminal trials. However, this right might be outweighed by an overriding interest articulated by the judge. This right to attend includes "vior dire" examination of jurors as well as pretrial proceedings. 2. Government has compelling interest to protect children who are victims of sex offenses. Portions of trials wherein children testify may be closed to the public and press if such closure is necessary to protect the child in the individual case. E. FREEDOM OF RELIGION The First Amendment prohibition on establishment of religion and its protections of the free exercise of religion is applicable to the states through the Fourteenth Amendment. 1. Establishment Clause The Establishment Clause prohibits laws respecting the establishment of religion. a. Sect Preference If a government regulation or action includes a preference for one religious sect over another, it is invalid unless it is narrowly tailored to promote a compelling interest. b. No Sect Preference If a government regulation contains no sect preference, it is valid under the clause if it: (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not produce excessive government entanglement with religion. CONSTITUTIONAL LAW 15

20 2. Free Exercise Clause a. No Punishments of Beliefs The free exercise clause prohibits government from punishing someone on the basis of her religious beliefs. For example, the clause forbids: (1) State government from requiring office holders to take a religious oath; (2) States from excluding clerics from holding public office; and (3) Courts from declaring a religious belief to be false. b. General Non-Religious Conduct Regulation The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was specifically designed to interfere with religion. Moreover, the free exercise clause does not require religious exemptions from generally applicable government regulations that happen to burden religious conduct. (1) Exception: Unemployment Compensation Cases A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons. The worker need not even belong to a formal religious organization in such a situation, as long as the belief it sincere. (2) Exception: Right of Amish not to Educate Children The Supreme Court has granted the Amish an exception from a law requiring compulsory school attendance until age 16, based on the free exercise clause and the fundamental right to educate one's children. c. Financial Benefits to Religious Institutions The Supreme Court applies the three-part test with greater strictness when government financial aid is going to another type or religious institution. (1) Recipient Based Aid The government may give aid in the form of assistance to a defined class of persons as long as the class is defined without reference to religion or religious criteria. Such a program is valid even if most of the people receiving aid use it to attend a religiously affiliated school (2) Aid to Colleges and Hospitals Aid to colleges and hospitals will be upheld as long as the government program requires the aid to be used for non-religious purposes and the recipient so agrees. (3) Aid to Grade Schools and High Schools

21 Aid to grade schools and high schools is usually found to have a secular purpose, but may fail the other parts of the test 19. d. Cases Unconnected to Financial Aid or Education Generally, a law favoring or burdening religion or specific religious group will be invalid, but a law favoring or burdening a large segment of society that happens to include religious groups will be upheld. e. Religious Activities in Public School School sponsored religious activity is invalid, but also accommodation of religion is invalid. Moreover, if a public official allows members of the public and private organization permission to use the property for meeting merely because religious topics will be discussed. F. TAKINGS The Fifth Amendment provides that private property may not be taken for public use without just compensation. This rule is applicable to the states via the Fourteenth Amendment. The Takings Clause is not a source of power for taking, but rather a limitation. "Taking" includes not only physical appropriations but also some government action that damages property or impairs its use. 1. Public Use If the government action is rationally related to a legitimate public purpose 20, the public use requirement is satisfied. Authorized takings by private enterprises are included if they redound to the public advantage Taking vs. Regulation The crucial issue is whether the government action is a taking or merely a regulation that does not require compensation. There are no clear-cut criteria for making this determination. a. Actual Appropriation or Physical Invasion An actual or physical appropriation of property will almost certainly amount to a taking. b. Use Restrictions (1) Denial of All Economic Value 19 That is: if a program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be stricken for excessive government entanglement. 20 In other words: health, safety, economics, aesthetics. 21 For example: public utilities, railroads. CONSTITUTIONAL LAW 17

22 If a regulation denies a landowner of all economic use of her land, the regulation amounts to a taking unless the principles of nuisance of property law make the use prohibited. (2) Temporary Temporarily denying an owner of all economic use of property does not constitute a per se taking. Instead, the court will carefully examine and weigh all the relevant circumstances such as planner's good faith, reasonable expectations of the owners, length of the delay and its effect on the property value, in order to determine whether fairness and justice require compensation. 3. Remedy (3) Nolan & Dolan Municipalities often attempt to condition building or development permits on a landowner's conveying title of part or all of the property to the government or by granting public access to the property. These conditions are an uncompensated taking unless: (1) the government can show that the condition relates to a legitimate government interest; and (2) the adverse impact of the proposed development on the area is roughly proportional to the loss caused to the property owner from the forced transfer of occupation rights. (4) Decreasing Economic Value--Balancing Test Regulations that merely decrease the value of property do not amount to a taking if they leave an economically viable use for the property. The court will consider: (1) the social goals sought to be promoted; (2) the diminution in value to the owner; and (3) the owner's reasonable expectations regarding the property. The more drastic the reduction in value or the less it promotes public welfare, the more likely it is to be a taking. a. Pay the property owner just compensation for the property 22 ; or b. Terminate the regulation and pay the owner damages that occurred while the regulation was in effect. Remember the compensation is measured by loss to the owner, not by the gain to the taker. Where the property is worthless, no compensation need be paid. 22 That is: fair market value.

23 G. EQUAL PROTECTION The Equal Protection clause of the Fourteenth Amendment provides that no state shall make or enforce any law which shall deny to any person within its jurisdiction equal protection of the laws. It prohibits governmental regulations that discriminate on the basis of an arbitrary classification as individuals similarly situated must be treated the same. 1. Essay Approach: What is the Classification? a. Fundamental Right (1) Privacy Marriage, contraception, abortion, porn, keeping extended family together, parental decisions, sexual conduct. (2) Right to Vote (3) Right to Travel b. Suspect Class Classifications are suspect if they are based on race, alienage or national origin. c. Quasi-Suspect Class Classifications based on legitimacy and gender are "quasi-suspect". d. Other Classes 2. Standard of Review If a fundamental right or suspect classification is involved the strict scrutiny standard is used to evaluate the regulation. If a quasi-suspect classification is involved, intermediate scrutiny is the applicable standard. If the classification does not affect a fundamental right or involve a suspect or quasi-suspect classification, the rational basis test is applied. a. Strict Scrutiny The law is upheld if it is necessary to achieve a compelling government purpose. The government has the burden of proof. b. Intermediate Scrutiny The law is upheld if it is substantially related to an important government purpose. For intermediate scrutiny the burden of proof typically rests with the government. c. Rational Basis CONSTITUTIONAL LAW 19

24 The law is upheld if it is rationally related to a legitimate government purpose. The person challenging the law has the burden of proof. The law is usually valid unless it is arbitrary or irrational. (1) Exception--Facially Neutral Law Where a facially neutral law is being applied in a discriminatory manner of there is a discriminatory motive behind the law, the government is said to have the intent to discriminate and strict or intermediate scrutiny will be applied depending on the classification of those targeted. 3. What is the Government's Interest? 4. How does the Classification further that Interest? 5. Are there less Burdensome Means Available? H. SUBSTANTIVE DUE PROCESS Certain fundamental rights are protected under the Constitution. If they are denied to everyone, it is a substantive due process problem. If they are denied to some individuals but not others, it is an equal protection problem. 1. Essay Approach: What fundamental Right is being deprived or burdened? a. Right of Privacy (1) Marriage The right of a male and female to enter into and end the marriage relationship is a fundamental right. The right of prisoners to marry can be restricted on the basis of legitimate penological interests. (2) Use of Contraceptives A state statute cannot prohibit distribution of non-medical contraceptives to adults. (3) Abortion The right of privacy includes the right of a woman to have an abortion without state interference under most circumstances. The Supreme Court determined that strict scrutiny should not apply and has adopted two basic rules: (a) Pre-Viability Rule: No Undue Burdens Before viability, a state may adopt a regulation protecting the mother's health and the life of the fetus if the regulation does not place an "undue burden" on or substantial obstacle to the woman's right to obtain an abortion.

25 (b) Post-Viability Rule The state may prohibit abortion unless woman's health threatened. Once the fetus is viable, the state's interest in the fetus's life can override the woman's right to obtain an abortion, but the state cannot prohibit the woman from obtaining an abortion if it is necessary to protect the woman's health or safety. (c) Financing The government has no obligation to pay for abortions. (4) Obscene Reading Materials Right of privacy includes the freedom to read obscene material in one's home 23, but not the rights to sell, purchase, or transport such material. (5) Keeping Extended Family Together Zoning regulations that prevent family members - even extended ones - from living together are invalid. However, this does not extend to unrelated people. (6) Rights of Parents Parent's have a fundamental right to make decisions concerning the care, custody, and control of their children 24. (7) Intimate Sexual Conduct The state has no legitimate interest in making it a crime for fully consenting adults to engage in private intimate sexual conduct that is not commercial in nature. (8) Collection and Distribution of Personal Data--No Privacy Right The state may reasonably gather and distribute info about its citizens. Thus, there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs were prescribed. b. Right to Vote The right to vote is a fundamental right. Thus, restrictions on that right, other than on the basis of residence, age, and citizenship, are invalid unless they can pass strict scrutiny. (1) Restrictions on Right to Vote (a) Residency Requirements Reasonable time periods for residency are valid 25. In Presidential elections congress can override state rules and impose its own. 23 Except material that depict children. 24 For example: a parent can send their child to private school or forbid visitation from grandparents. CONSTITUTIONAL LAW 21

26 (b) Property Ownership Conditioning the right to vote on property ownership is invalid. (c) (d) Poll Taxes Poll taxes are unconstitutional. Primary Elections States may require early registration to vote in primaries. However, states cannot prohibit political parties from opening their primary elections to anyone, whether registered or not registered with the party. (2) Dilution of Right to Vote (a) One Person, One Vote Applies whenever any level of government decides to select representatives to a government body by popular election from individual districts. (b) Gerrymandering Race and other suspect classifications cannot be the predominant factor in drawing the boundaries of voting districts unless the district plan can pass strict scrutiny. (3) Candidates and Campaigns (a) Candidates A fee cannot be charged that would make it impossible for indigents to run for office. A ballot access regulation must be a reasonable, nondiscriminatory means of promoting important state interests. (b) Funding The Government may allocate more public funds to the two major parties that to minor parties for political campaigns. c. Right to Travel An individual has a fundamental right to travel from state to state and to be treated equally after moving into a new state. Not every restriction amounts to an impairment of the right to travel. A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits. (1) Interstate Travel (a) Invalid 25 For example: a thirty day waiting period.

27 One year residency to receive full welfare benefits; state subsidized medical care; to vote in a state. (b) Valid A thirty day residency to vote in a state; one year residency to get divorced. Regulations affecting these rights are reviewed under the strict scrutiny standard. I. PROCEDURAL DUE PROCESS A fair process 26 is required for a government agency to individually take a person's "life, liberty, or property." Only intentional, not negligent, deprivation of rights violates the Due Process Clause. 1. Liberty Liberty includes more than just freedom from bodily restraints. It includes the right to contract and the right to engage in gainful employment. A deprivation of liberty occurs if a person: a. Loses a significant freedom or action, or b. Is denied a freedom provided by the constitution or statute. 2. Property Property includes more than personal belongings and realty, but an abstract need or desire for a benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or federal law What Due Process if Due? The type and extent of required procedures are determined by a three-pronged balancing test that weighs: a. The importance of the interest to the individual; and, b. The value of specific procedural safeguards to that interest; and, c. The government interest in fiscal and administrative efficiency. 26 For example: notice and a hearing. 27 For example: continued attendance at public school, welfare benefits, and government employment. CONSTITUTIONAL LAW 23

28 Fair procedures and an unbiased decision-maker will always be required. Notice and a chance to respond before termination of the liberty or property interest are usually required. Due process rights are subject to waiver if the waiver is voluntarily and knowingly made. J. PRIVILEGES OF NATIONAL CITIZENSHIP Under the Fourteenth Amendment states may not deny their citizens the privileges or immunities or national citizenship 28. Corporations are not protected by this Clause. K. FULL FAITH AND CREDIT If a judgment is entitled to full faith and credit it must be recognized in sister states. This Clause applies only if: (1) the court that rendered the judgment had jurisdiction over the parties and the subject matter; (2) the judgment was on the merits; and (3) the judgment is final. L. RETROACTIVE LEGISLATION 1. Contract Clause--Impairment of Contract The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into. a. Private vs. Federal Contracts (1) Private Contracts--Intermediate Scrutiny State legislation that substantially impairs an existing private contract is invalid unless the legislation: (1) serves an important and legitimate public interest; and (2) is a reasonable and narrowly tailored means of promoting that interest 29. (2) Public Contracts--Stricter Scrutiny Legislation that impairs a contract to which the state is a party is tested by the same basic test, but the contract will likely receive stricter scrutiny, especially if the legislation reduces the contractual burden on the state. There is no comparable clause applicable to the federal government, but contract impairment could violate the Fifth Amendment Due Process Clause. 2. Ex Post Facto Laws: Criminal Cases Only 28 For example: the right to petition congress for redress or grievances, the right to vote for federal officers, and the right to interstate travel. 29 For example: a moratorium on mortgages foreclosures.

29 The state or federal government may not pass an ex post facto law 30. A statute retroactively alters a law in a substantially prejudicial manner if it: (1) makes criminal an act that was innocent when done; (2) prescribes greater punishment for an act than was prescribed for the act when it was done; or (3) reduces the evidence required to convict a person of a crime from what was required when the act was committed. 3. Bills of Attainder Bills of attainder are legislative acts that inflict punishment on individuals without a judicial trial. Both federal and state governments are prohibited from passing bills of attainder. 4. Due Process Considerations If a retroactive law does not violate the Contracts, Ex Post Facto, or Bill of Attainder Clauses, it still must pass muster under the Due Process Clause. If the retroactive law does not relate to a fundamental right, it need only be rationally related to a legitimate government interest. 30 That is: a law that retroactively alters criminal offenses or punishment in a substantially prejudicial manner for the purpose or punishing a person for some past activity. CONSTITUTIONAL LAW 25