a federal court will not hear cases involving:

1.  challenges based on the “Republican Form of Government”

2.  challenges to congressional procedures for ratifying Constitutional Amendments

to have standing, a party must have a concrete stake in the outcome of a controversy.  Elements are:

1.  injury:  plaintiff must show he has been or will be directly and personally injured by allegedly wrongful Gov. action

2.  causation:  causal connection between the injury and the conduct complained of

1. Preemption

2. Dormant Commerce Clause

3. Privileges and Immunities

the Supremacy Clause makes federal laws supreme over conflicting state laws

Art. IV clause prohibits states and municipalities from discriminating against residents of other states.  Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties.

P&I clause of 14th amend. is almost always wrong uless it involves the right to travel

prevents speech before it occurs, rather than punishing it afterwards.  Rarely allowed.  Government has a heavy burden in justifying prior restraint—it must show that some special societal harm will otherwise result (e.g., publishing troop movements in time of war).

restrictions on the content of speech must be narrowly tailored to achieve a compelling government interest.  The Government has a compelling interest in the following “unprotected” areas:

1. Inciting imminent unlawful action

2. Fighting words

3. obscenity

obscenity:  obscene speech or material (note:  Gov. cannot punish private possession of obscene material) requires:

i.  appeal to the prurient interest in sex by local standards (prurient:  that which incites lustful or lascivious thoughts)

ii.  is patently offensive under local standards

it is generally protected 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:

a.  it serves a substantial government interest;

b.  it directly advances that interest; and

c.  it’s narrowly tailored to serve that interest.

the government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communication is no greater than necessary to achieve the government’s  purpose

a.  nude dancing (or public nudity to make a point) is not protected speech

b.  cross burning is protected, unless done to intimidate or threaten

c.  flag burning is protected; draft card burning is not

government cannot create liability for the truthful reporting of information that was lawfully obtained

a.  criminal trials:  the public and press have a right to attend criminal trials and government cannot limit dissemination of information.  However, that right might be outweighed by an overriding interest (sex offense victims)

5th Amend.

private property may not be taken for public use without just compensation.  If a government regulation denies a landowner of all economic use of his land, the regulation amounts to a taking.

1.  Taking for public use:  only a rational basis test is used for laws affecting economic rights

1.  Establishment clause:  helpful mnemonic SEX—a statute will be valid only if it has:

a.  S secular purpose

b.  E effect (primary effect) that neither advances nor inhibits religion

c.  X no excessive government entanglement with religion

prohibits government from punishing someone on the basis of their religious beliefs, unless:

a. there is a compelling state interest;

b.  unrelated to suppression of ideas; and

1.  Impairment of Contract:  Contracts Clause prohibits states from retroactively and substantially impairing K rights unless the governmental act serves an important and legitimate government interest and is reasonable and narrowly tailored.

2.  Ex Post Facto:  laws that retroactively alter criminal law may not be passed by state or federal government

3.  Bills of Attainder:  a legislative act that inflicts punishment without a judicial trial on individuals who are designated either by name or in terms of past conduct.  The prohibition against bills of attainder mandates the use of judicial machinery for trial and punishment of crime as well as the drafting of the definition of criminal conduct in such general terms that it will not single out a particular individual or small group for punishment because of past behavior.

Classification of the class:  two ways to determine the existence of classifications:  (1) the classification is on the face of the law; or (2) if the law is facially neutral, there is both a discriminatory intent for the law, and a discriminatory impact to the law. 

a.  Suspect Class:  race, national origin, alienage—apply strict scrutiny

b.  Quasi-suspect Class:  gender, illegitimate (“non-marital”) children—apply intermediate scrutiny

c.  No Suspect Class or Quasi-suspect class, and no fundamental right:  age, disability, wealth, sexual orientation—apply the rational basis scrutiny

Scrutiny applied:  it is the Government’s burden to prove strict and intermediate scrutiny; challenger’s for rational basis

  strict scrutiny:  law is upheld if it is necessary to achieve a compelling governmental interest

  intermediate scrutiny:  law is upheld if it is substantially related to an important governmental purpose

if a law limits liberty of all persons (as opposed to a class) to engage in some activity, it is a substantive due process issue 

1.  Fundamental Rights:  privacy; right to marry; procreate; custody of one’s children; use contraceptives; keep family intact

2.  Strict Scrutiny:  when a fundamental right is limited (e.g., privacy, interstate travel, voting, speech) the law or action is evaluated under strict scrutiny.  In all other cases, the rational basis standard is applied.