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CONSTITUTIONAL LAW (Summary Flowcharts)

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BLANK

CONSTITUTIONAL LAW

Political Question? Timeliness 3P Person C&C: Standing (Fed Ct Only) Injury TP Association Abstention Plaintiff 3A's Adequate State Grounds Advisory Opinion State on Fed

Govt

Immunities

Fed on State

PARTIES

Compulsion

Person: State Action

Entanglement

Function

Defendant State (10thA) Police Power

Foreign Govt Executive Domestic Federal Limited Separation of Powers Legislative (limited) Orig/A Judicial C&C/11thA

49

CON LAW APPROACH

1. Examine the parties and determine if there are any a. Plaintiff issues: standing or intergovernmental immunity. b. Defendant issues: State action or source of power. Note: If both parties are branches of the federal government, you must address the separation of powers issues. 2. Then ask: are there any limitations (generally, some individual constitutional right(s) secured by the Bill of Rights or the 14th Amendment)? 3. Finally, when analyzing any Constitutional issue, always identify the proper standard of judicial review and fully discuss the facts necessary to conclude whether the standard has been met.

Limits on State Govt.

P&I Pre-emption Discrimination Dormant Commerce Clause Undue Burden Interstate P&I

14TH A

EPC Due Process

Procedural Substantive

BILL OF RIGHTS
(Sel. Incorp.)

1st

Expression Religion

Crim Pro

K Cls B of A Ex PF

Limits on Federal Govt.

Expression 1st Religion Tax & Spend

Channels Commerce Econ Impact

BILL OF RIGHTS
(All 10 Amend)

Crim Pro Procedural 5th DP Substantive

Enabling Clauses

49A

FREEDOM OF SPEECH
HIGHEST PROTECTION Viewpoint Strict Scrutiny/ Compelling Govt Interest

MIDDLE PROTECTION

Directed to Incite Advocacy of Unlawful Action Likely to Incite No Political Value Violence Fighting Words Likely to Incite Imminent Violence Hostile Audience Reasonable Police Efforts

Appeals to Prurient Interest LOWEST PROTECTION

Obscenity

Patently Offensive

Lacks Serious Value

Defamation

49B

Lawful / Not Misleading Commercial Speech Substantial Govt Interest Narrowly Tailored Content Neutral Symbolic Conduct Substantial Govt Interest Narrowly Tailored Public Forum Traditional Designated

Content Neutral MIDDLE PROTECTION Time, Place & Manner

Substantial Govt Interest

Narrowly Tailored

Alternative Channels of Communication (Total Ban?) Void on Face Valid on Face Govt Property (Not a Public Forum) Limited Access Reasonable regulation of content OK Viewpoint regulation not permitted

Tactics

Prior Restraint Benefit Denied Vagueness Overbreadth

49C

FIRST AMENDMENT

Illegal Object Membership Knowledge Specific Intent Freedom of Assoc. Oath Extract Info. Investigation Public in

Freedom of Press

Extract Info.

In Court

FREEDOM OF RELIGION

secular purpose Establishment effect neither advances nor inhibits religion no entanglement

RELIGION

religious belief Free Exercise

religious conduct

49D

EQUAL PROTECTION
(Classification / Discrimination)

Race Suspect Class Origin

Alien

STRICT SCRUTINY Travel

Family Living Fundamental Interest Privacy Sex & Marriage Education Political Birth Control Abortion

Illegitimacy

Congress Acts to Enforce

SOMETHING IN BETWEEN ("Heightened Scrutiny")

RATIONAL BASIS

Age, Mental Retardation

Gender

Economic Regulation

49E

DUE PROCESS
PROCEDURAL Prison Mental Institution Defamation Plus Procedural (Rt. to Hearing) Contract Physical Occupation

Liberty

Notice Taking Hearing

Property

License

Diminution in Value vs. Public Benefit

Entitlement vs. Unilateral Expectation

SUBSTANTIVE

Family Living

Birth Control

Fundamental Interests Privacy (Strict Scrutiny)

Sex & Mrg

Abortion

Education

Non- Fundamental Interests-Rational Basis

49F

CONSTITUTIONAL STANDARDS OF REVIEW A. STRICT SCRUTINY: Burden of proof on the government to show that the challenged action is necessary to advance a compelling government interest and is the least restrictive means of achieving that interest. 1. Substantive Due Process: Government action which directly burdens the exercise of a fundamental right. 2. Equal Protection Clause: Government action which intentionally discriminates against suspect classes or fundamental rights. 3. Freedom of Expression: Viewpoint based government regulation of expression. BALANCING: Burden of proof on the government to show that the challenged action is narrowly tailored or substantially related to an important/substantial/significant government interest that outweighs the interest infringed. 1. State and local regulation of interstate commerce. 2. Article IV, Section 2 Privileges and Immunities: (discrimination against non-residents). 3. Contract clause (Note: Federal government impairment of existing private contract rights will be upheld if rationally related to a legitimate government interest). 4. Equal Protection Clause: Government action which intentionally discriminates against gender or illegitimacy. 5. Freedom of Expression: a. Government action that regulates commercial speech, symbolic conduct, the time, place or manner of speech in a public forum, or the secondary effects of free expression. 6. Freedom of Association: Government investigations and compelled disclosure.

B.

C. RATIONAL BASIS: Burden of proof is on the challenger to show that the challenged action is not rationally related to any legitimate government interest. 1. Substantive Due Process: Government action which burdens non-fundamental rights. 2. Equal Protection Clause: a. All government discrimination (intentional or unintentional) against non-suspect classifications or non-fundamental rights. b. All unintentional government discrimination against suspect classifications or fundamental rights. 3. Freedom of Expression: Government action that regulates speech on limited access government property (Note: Viewpoint discrimination must pass strict strutiny test). 4. Federal regulation of interstate commerce. 5. Federal legislation to enforce the 13th, 14th and 15th Amendments.

49G

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