CONSTITUTIONAL LAW
I. THE JUDICIAL POWER	
A. ARTICLE III	
B. POWER OF JUDICIAL REVIEW	
C. JURISDICTION OF THE SUPREME COURT	
1. Original Jurisdiction	
2. Appellate Jurisdiction	
D. CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION - “STRICT NECESSITY”	
1. No Advisory Opinions	
2. Ripeness - Immediate Threat of Harm	
3. Mootness	
4. Standing	
5. Adequate and Independent State Grounds	
6. Abstention	
7. Political Questions	
8. Eleventh Amendment Limits on Federal Courts	
II. LEGISLATIVE POWER	
A. ENUMERATED AND IMPLIED POWERS	
1. Necessary and Proper “Power”	
2. Taxing Power	
3. Spending Power	
4. Commerce Power	
5. War and Related Powers	
6. Investigatory Power	
7. Property Power	
8. No Federal Police Power	
9. Bankruptcy Power	
10. Postal Power	
11. Power Over Citizenship	
12. Admiralty Power	
13. Power to Coin Money and Fix Weights and Measures	
14. Patent/Copyright Power	
B. DELEGATION OF LEGISLATIVE POWER	
C. SPEECH AND DEBATE CLAUSE - IMMUNITY FOR FEDERAL LEGISLATORS	
D. CONGRESSIONAL “VETO” OF EXECUTIVE ACTIONS INVALID	
III. THE EXECUTIVE POWER	
A. DOMESTIC POWERS	
1. Appointments and Removal	
2. Pardons	
3. Veto Power	
4. No Legislative Power	
5. No Power to Impound	
B. POWER OVER EXTERNAL AFFAIRS	
1. War	
2. Foreign Relations	
3. Treaty Power	
4. Executive Agreements	
C. EXECUTIVE PRIVILEGE/IMMUNITY	
1. Executive Privilege	
2. Executive Immunity	
D. IMPEACHMENT	
IV. RELATIVE SPHERES OF FEDERAL AND STATE POWERS	
A. EXCLUSIVE FEDERAL POWERS	
1. Powers of States Expressly Limited	
2. Inherent Federal Powers	
B. EXCLUSIVE STATE POWERS	
C. CONCURRENT FEDERAL AND STATE POWER - EFFECT OF SUPREMACY CLAUSE	
1. Conflict Between State and Federal Laws	
2. State Prevents Achievement of Federal Objective	
3. Preemption	
D. ABSENCE OF FEDERAL AND STATE POWERS	
E. INTERSTATE COMPACT CLAUSE	
V. INTERSOVEREIGN LITIGATION	
A. SUITS BY UNITED STATES AGAINST A STATE	
B. SUITS BY A STATE AGAINST UNITED STATES	
C. FEDERAL OFFICER AS DEFENDANT	
1. Limitation	
2. Specific Relief Against Officer	
D. SUITS BY ONE STATE AGAINST ANOTHER	
E. SUITS AGAINST A STATE IN ANOTHER STATE’S COURT	
VI. INTERGOVERNMENTAL TAX AND REGULATION IMMUNITIES	
A. FEDERAL TAXATION AND REGULATION OF STATE OR LOCAL GOVERNMENTS	
1. Tax or Regulation Applying to Both States and Private Entities - Valid	
2. Tax or Regulation Applying Only to States	
3. Commandeering State Officials	
B. STATE TAXATION OF FEDERAL GOVERNMENT	
VII. PRIVILEGES AND IMMUNITIES CLAUSES	
A. ARTICLE IV - PRIVILEGES OF STATE CITIZENSHIP	
1. Only “Fundamental Rights” Protected	
2. Substantial Justification Exception	
3. Note - Relationship to Commerce Clause	
B. FOURTEENTH AMENDMENT - PRIVILEGES OF NATIONAL CITIZENSHIP	
VIII. REGULATION OF FOREIGN COMMERCE	
IX. REGULATION OF INTERSTATE COMMERCE	
A. REGULATION OF COMMERCE BY CONGRESS	
1. Power of Congress to Supersede or Preempt State Regulation	
2. Power of Congress to Permit or Prohibit State Regulation	
B. STATE REGULATION OF COMMERCE IN THE ABSENCE OF CONGRESSIONAL ACTION	
1. Discriminatory Regulations	
2. Nondiscriminatory Laws - Balancing Test	
C. TWENTY-FIRST AMENDMENT - STATE CONTROL OVER INTOXICATING LIQUOR	
1. Intrastate Regulation	
2. Interstate Regulation	
3. Conflicts Between State Liquor Laws and Individual Rights	
4. Federal Power	
X. POWER OF STATES TO TAX INTERSTATE COMMERCE	
A. GENERAL CONSIDERATIONS	
1. Discriminatory Taxes	
2. Nondiscriminatory Taxes	
B. USE TAXES	
1. Permissible in Buyer’s State	
2. State May Forece Seller to Collect Use Tax	
C. SALES TAXES	
1. Sales Tax by Seller’s State	
2. Sales Tax by Buyer’s State	
D. AD VALOREM PROPERTY TAXES	
1. No Tax on Commodities in Course of Interstate Commerce	
2. Tax on Instrumentalities Used to Transport Goods Interstate	
E. PRIVILEGE, LICENSE, FRANCHISE, OR OCCUPATIONAL TAXES	
1. General Rule - Taxes Permitted	
2. Flat License Tax on “Drummers” Prohibited	
3. Taxes on Interstate Carriers	
4. Taxes on Interstate Passengers	
F. NET INCOME TAXES	
G. VALUE ADDED TAX	
XI. POWER OF STATES TO TAX FOREIGN COMMERCE	
XII. LIMITATIONS ON POWER AND STATE ACTION REQUIREMENT	
A. CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS	
1. Bill of Rights	
2. Thirteenth Amendment	
3. Fourteenth and Fifteenth Amendments	
4. Commerce Clause	
5. Rights of National Citizenship	
B. STATE ACTION REQUIREMENT	
1. Exclusive Public Functions	
2. Significant State Involvement - Facilitating Private Action	
XIII. RETROACTIVE LEGISLATION	
A. CONTRACT CLAUSE - IMPAIRMENT OF CONTRACT	
1. Not Applicable to Federal Government	
2. Basic Impairment Rules	
B. EX POST FACTO LAWS	
C. BILLS OF ATTAINDER	
D. DUE PROCESS CONSIDERATIONS	
XIV. PROCEDURAL DUE PROCESS	
A. BASIC PRINCIPLE	
B. IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN?	
1. Liberty	
2. Property	
C. WHAT TYPE OF PROCESS IS REQUIRED?	
D. DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER	
E. ACCESS TO COURTS - INDIGENT PLAINTIFFS	
XV. THE “TAKING” CLAUSE	
A. IN GENERAL	
B. “PUBLIC USE” LIMITATION LIBERALLY CONSTRUED	
C. “TAKING” VS. “REGULATION”	
1. Actual Appropriation or Physical Invasion	
2. Use Restictions	
3. Remedy - “Just Compensation”	
XVI. INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION	
A. RELATIONSHIP BETWEEN SUSTANTIVE DUE PROCESS AND EQUAL PROTECTION	
1. Substantive Due Process	
2. Equal Protection	
B. WHAT STANDARD OF REVIEW WILL THE COURT APPLY?	
1. Strict Scrutiny (Maximum Scrutiny)	
2. Intermediate Scrutiny	
3. Rational Basis (Rational Relatedness)	
XVII. SUBSTANTIVE DUE PROCESS	
A. CONSTITUTIONAL SOURCES - TWO CLAUSES	
B. APPLICABLE STANDARDS	
C. A FEW IRREBUTTABLE PRESUMPTIONS MAY BE INVALID	
XVIII. EQUAL  PROTECTION	
A. CONSTITUTIONAL SOURCE	
B. APPLICABLE STANDARDS	
C. PROVING DISCRIMINATORY CLASSIFICATION	
D. SUSPECT CLASSIFICATIONS	
1. Race and National Origin	
2. Alienage Classifications	
E. QUASI-SUSPECT CLASSIFICATIONS	
1. Gender Classifications	
2. Legitimacy Classifications	
F. OTHER CLASSIFICATIONS	
XIX. FUNDAMENTAL RIGHTS	
A. INTRODUCTION	
B. RIGHTS OF PRIVACY	
1. Marriage	
2. Use of Contraceptives	
3. Abortion	
4. Obscene Reading Material	
5. Keeping Extended Family Together	
6. Right to Educate Children	
7. Sodomy - No Privacy Right	
8. Collection and Distribution of Personal Data - No Privacy Right	
C. RIGHT TO VOTE	
1. Resticitions on Right to Vote	
2. Dilution of Right to Vote	
3. Candidates and Campaigns	
D. RIGHT TO TRAVEL	
1. Interstate Travel	
2. Right to International Travel	
XX. FREEDOM OF SPEECH AND ASSEMBLY	
A. GENERAL PRINCIPLES	
1. Content vs. Conduct	
2. Reasonableness of Regulation	
3. Scope of Speech	
B. TIME, PLACE, AND MANNER RESTRICTIONS - REGULATION OF CONDUCT	
1. Public Forums	
2. Nonpublic Forums	
3. Private Forums	
C. UNPROTECTED SPEECH - REGULATION BASED ON CONTENT	
1. Inciting Imminent Lawless Action	
2. Fighting Words	
3. Obscenity	
4. Defamatory Speech	
5. False Advertising - Commercial Speech	
D. PRIOR RESTRAINTS	
1. Procedural Safeguards	
2. Obscenity Cases	
E. FREEEDOM OF THE PRESS	
1. Access to Trials	
2. Requiring Press to Testify Before Grand Jury	
3. Interviewing Prisoners	
4. Business Regulation or Tax	
5. Broadcasting Regulations	
6. Cable Television Regulation	
7. Internet Regulation	
XXI. FREEDOM OF ASSOCIATION AND BELIEF	
A. NATURE OF THE RIGHT	
B. ELECTORAL PROCESS	
1. Limits on Contributions	
2. Limits on Expenditures	
3. Compare - Regulations of Core Political Speech	
C. BAR MEMBERSHIPS AND PUBLIC EMPLOYMENT	
1. Restraints on Conduct	
2. Loyalty Oaths	
3. Disclosure of Associations	
XXII. FREEDOM OF RELIGION	
A. CONSTITUTIONAL PROVISION	
B. FREE EXERCISE CLAUSE	
1. No Punishment of Beliefs	
2. General Conduct Regulation - No Religious Exemptions Required	
C. ESTABLISHMENT CLAUSE	
1. Sect Preference	
2. No Sect Preference	

Powers of the Federal Government
I.	THE JUDICIAL POWER
A.	ARTICLE III
Federal judicial power extends to cases involving:
1.	Interpretation of the Constitution, federal laws, treaties, and admiralty and maritime laws; and
2.	Disputes between states, states and foreign citizens, and citizens of diverse citizenship.
B.	POWER OF JUDICIAL REVIEW
The Supreme Court may review the constitutionality of acts of other branches of the federal government  It may also review state acts pursuant to the Supremacy Clause (Article VI [2]).
C.	JURISDICTION OF THE SUPREME COURT
1.	Original Jurisdiction
The Supreme Court has original jurisdiction in all cases affecting ambassadors, public ministers, consuls, and those in which a state is a party, but Congress has given concurrent jurisdiction to lower federal courts in all cases except those between states.
2.	Appellate Jurisdiction
The Supreme Court has appellate jurisdiction in all cases to which federal power extends, subject to congressional exceptions and regulation.  Cases can come to the court by one of two ways:
a)	Writ of Certiorari - Most Cases
The Supreme Court has complete discretion to hear cases that come to it by certiorari.  The cases that com by certiorari are:
1.	Cases from state courts where (i) the constitutionality of a federal statute, federal treaty, or state statute is in issue, or (ii) a state statute allegedly violates federal law.
2.	All cases from federal courts of appeals.
b)	Appeal - Rare Cases
The Supreme Court must hear cases that come to it by appeal.  These cases are confined to decisions by a three-judge federal district court panel that grants or denies injunctive relief.
D.	CONSTITUTIONAL AND SELF-IMPOSED LIMITATIONS ON EXERCISE OF FEDERAL JURISDICTION - “STRICT NECESSITY”
Whether a case is “justiciable” (i.e., a federal court may address it) depends on whether there is a “case or controversy.”  In addition to the “case or controversy” requirement, there are other limitations on federal court jurisdiction.
1.	No Advisory Opinions
There must be specific present harm or threat of specific present harm or threat of specific future harm.
2.	Ripeness - Immediate Threat of Harm
A plaintiff is not entitled to review of a statute or regulation before its enforcement (i.e., may not obtain a declaratory judgment) unless the plaintiff will suffer some harm or immediate threat of harm.
3.	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.
a)	Exception
Controversies capable of repetition, but evading review are not moot. Examples: Issues concerning events of short duration (e.g., abortion) or a defendant who voluntarily stops the offending practice but is free to resume.
b)	Class Actions
A class representative may continue to pursue a class action after the representative’s controversy has becom moot if claims of other class members are still viable.
4.	Standing
A person must have a concrete stake in the outcome of a case.
a)	Components
(1)	Injury
Plaintiff must show that she has been or will be directly and personally injured by the allegedly unlawful government action, which affects her rights under the Constitution or federal law.  The injury need not be economic.
(2)	Causation
There must be a causal connection between the injury and the conduct complained of.
(3)	Redressability
A decision in the litigant’s favour must be capable of eliminating her grievance.
b)	Common Standing Issues
(1)	Congressional Conferral of Standing
Congress has no power to eliminate the case or controvery requirement and, thus, cannot grant standing to someone not having an injury.
(2)	Standing to Enforce Government Statutes
A plaintiff may have standing to enforce a federal statute if she is within the “zone of interests” Congress meant to protect.
(3)	Standing of Organizations
An organization has standing if (i) there is an injury in fact to members which gives them a right to sue on their own behalf, (ii) the injury is related to the organization’s purpose, and (iii) individual member participation in the lawsuit is not required.
(4)	Standing to Assert Rights of Others
Generally, one cannot assert the constitutional rights of others to obtain standing, but a claimant with standing in her own right may also assert the right of a third party if:
1.	It is difficult for the third party to assert her own rights (e.g., association may attack law requiring disclosure of membership lists, but because members cannot attack law without disclosing their identies); or
2.	A special relationship exists between the claimant and the third party (e.g., doctor can assert patient’s rights in challenging an abortion restriction).
(5)	No Citizenship Standing
People have no standing merely as “citizens” to claim that government action violates federal law or the Constitution.  The injury is too genralized.
(6)	Taxpayer Standing Requisites
A taxpayer has standing to litigate her tax bill, but a taxpayer generally has no standing to challenge government expenditures, because the taxpayer’s interest is too remote.  Exception: Suits attacking taxing and spending measures on First Amendment Establishment Clause (e.g., federal expenditures to aid parochial schools).
(7)	Legislators’ Standing
Legislators may have standing to challenge the constitutionality of government action if they have a sufficient “personal statke” in the dispute and suffer sufficient “concrete injury.”
5.	Adequate and Independent State Grounds
The Supreme Court will not exercise jurisdiction if the state court judgment is base on adequate and independent state law grounds - even if federal issues are involved.  State law grounds are adequate if they are fully dispositve of the case.  They are independent if the decision is not based on federal case interpretations of identical federal provisions.  When the state court has not clearly indicated that its decision rests on state law, the Supreme Court may hear the case.
6.	Abstention
a)	Unsettled Question of State Law
A federal court will temporarily abstain from resolving a constitutional claim when the dispostion rests on an unsettled question of state law.
b)	Pending State Proceedings
Federal courts will not enjoin pending state criminal proceedings (and in some cases pending state administrative or civil proceedings involving an important state interest), except in cases of proven harassment or prosecutions taken in bad faith.
7.	Political Questions
Political questions will not be decided.  These are issues (i) constitutionally committed to another branch of government or (ii) inherently incapable of judicial resolution.
a)	Examples of Political Questions
Challenges base on the “Republican Form of Government” Clasue of Article IV, challenges to congressional procedures for ratifying constitutional amendments, and the President’s conduct of foreign policy are political questions.
b)	Compare - Nonpolitical Questions
Legislative apportionment, arbitrary exclusion of a congressional delegate, and production of presidential papers and communications are not political questions.
8.	Eleventh Amendment Limits on Federal Courts
The Eleventh Amenment prohibits federal courts from  hearing a private party’s or foreign government’s claim against a state government.
a)	What Is Barred?
The prohibition extends to actions where the state is named as a party or where the state will have to pay retroactive damages.
b)	What Is Not Barred?
The prohibition does not extend to actions against local governments or actions by the United States or other states.
c)	Exceptions
(1)	Certain Actions Against State Officers
The following actions can be brought against state officers in federal court despite the Eleventh Amendment: (i) actions to enjoin an officer from future conduct that violates the Constitution or federal law, even if this will require prospective payment from the state; and (ii) actions for damage against an offier personally.
(2)	State Consents
A state may expressly consent to a suit in federal court.
(3)	Congress Removes the Immunity
Congress can remove Eleventh Amendment immunity as to actions created under the Fourteenth Amendment, but it must be unmistakably clear that Congress intended to remove the immunity.
II.	LEGISLATIVE POWER
The federal government has limited powers.  Every exercise of federal power must be traced to the Constitution.
A.	ENUMERATED AND IMPLIED POWERS
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government.
1.	Necessary and Proper “Power”
Congress has the power to make all laws necessary and proper (appropriate) for executing any power granted to any branch of the federal government.
2.	Taxing Power
Congress has the power to tax, and most taxes will be upheld if they bear some reasonable relationship to revenu production or if Congress has the power to regulate the activity taxed.  However, neither Congress nor the states may tax exports to foreign countries.
3.	Spending Power
Congress may spend to “provide for the common defense and general welfare.”  Spending may be for any public purpose.
Also recall that although the power to spend for the general welfare is broad (any public purpose), it is still limied by the Bill of Rights and other constitutional provisions.
4.	Commerce Power
Congress has the exclusive power to regulate all foreign and interstate commerce. Interstate commerce includes:
1.	Transportation or traffic, even if not “commercial,” including both goods that are moved in interstate commerce and the vehicles that move between states.
2.	Any activity, even if carried on entirely intrastate, that, taken cumulatively, might have a substantial effect on interestate commerce (e.g., growing wheat for home consumption).  The actual purpose of the regulation need not be related to either commerce or transportation as long as the subject regulated might have the required effect - e.g.,  Congress has used the Commerce Clause to uphold federal civil rights legislation because of the effect discrimination might have on interstate commerce.
5.	War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
a)	Economic Regulation
Economic regulation during war and in the postwar period to remedy wartime disruptions has been upheld.
b)	Military Courts and Tribunals
Congress is authorized to make rules for the government and regulation of armed forces.
(1)	Judicial Review
Regular federal (or state) courts have no general power of review over court-martial proceedings.
(2)	Enemy Civilians and Soldiers
Enemy civilians and soldiers may be tried by military courts.
(3)	American Soldiers
Military courts have jurisdiction over all offenses committed by persons who are members of the armed services both at the time of the offense and when charged.
(4)	American Civilians
American civilians may be tried by military courts under martial law only if actual warfare forces the federal courts to shut down.
6.	Investigatory Power
The power of Congress to investigate is implied.  Investigation must be expressly or impliedly authorized by the appropriate congressional house.
7.	Property Power
Congress has the power to dispose of and make rules for territories and other properties of the United States.  While there is no express limitation on Congress’s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution.
8.	No Federal Police Power
Congress has no general police power.  However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations (based on its power over the capitol and its property power).
9.	Bankruptcy Power
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.
10.	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.”
11.	Power Over Citizenship
Congress may establish uniform rules of naturalization.  This gives Congress plenary power over aliens.
a)	Exclusion of Aliens
Summary exclusion of aliens seeking admission is permitted.  Lawfully resident aliens are entitled to notice and a hearing as prerequisite to deportation.  Deportation is not punishment, so the ex post facto ban is inapplicable.
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 his consent.  Where a federal agency, other than Congress itself, attempts to deny a federal benefit to resident aliens, there must be a clear delegation of power.
12.	Admiralty Power
Congress’s admiralty power is plenary and exclusive unless Congress leaves maritime matters to state jurisdiction.
13.	Power to Coin Money and Fix Weights and Measures
Congress has the power to coin money and fix standsards for weights and measures.
14.	Patent/Copyright Power
Congress has the power to control the issuance of patents and copyrights.
B.	DELEGATION OF LEGISLATIVE POWER
Legislative power may generally be delegated to the executive or judicial branch as long as intelligible standards are set and the power is not uniquely confined to Congress (e.g., powers to declare war, impeach).
Note: Congress may not appoint members of a body with administrative or enforcement powers. See III.A.1a.2, infra
C.	SPEECH AND DEBATE CLAUSE - IMMUNITY FOR FEDERAL LEGISLATORS
Conduct that occurs in the regular course of the federal legislative process and the motivationbehind that conduct are immune from prosecution.

Note: Immunity does not cover bribes, speeches outside Congress, or the republication in a press release or newsletter of a defamatory statement originally made in Congress.
D.	CONGRESSIONAL “VETO” OF EXECUTIVE ACTIONS INVALID
A legislative veto is an attempt by Congress to overturn an executive agency action without bicameralism (i.e., passage by both houses of Congress) or presentment (i.e., giving the bill to the President for his signature or veto).  Legislative vetoes of executive actions are invalid.
III.	THE EXECUTIVE POWER
A.	DOMESTIC POWERS
1.	Appointments and Removal
a)	Appointment Powers
The executive appoints “all ambassadors, other public ministers and consuls, justices of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for,” with advice and consent of Senate.  Congress, however, may vest the appointment of inferior officers in the President alone, the courts, or the head of departments.
(1)	Note - Appointment of “Independent Counsel”
Under the Ethics in Government Act, a special prosecutor is an “inferior officer,” and therefore the Appointment Clause allows Congress to vest the power to appoint a special prosecutor in the judiciary.
(2)	No Appointments by Congress
Congress itself may not appoint members of a body with administrative or enforcement powers.
b)	Removal of Apointees
(1)	By President
The President can remove high level, purely executive officers (e.g., cabinet members) at will, without any interference by Congress.  However, Congress may provide statutory limitations (e.g., removal only for good cause) on the President’s power to remove all other executive appointees.
(2)	By Congress
Congress may remove executive officers only through the impeachment process.
2.	Pardons
The President may grant pardons for all federal offenses but not for impeachment or civil contempt.  The pardon power cannot be limited by Congress.
3.	Veto Power
If the President disapproves (vetoes) an act of Congress, the act may still become law if the veto is overriden by a two-thirds vote of each house.
a)	Pocket Veto
The President has 10 days to exercise the veo power.  If he fails to act within that time, the bill is automatically vetoed if Congress is not in session.  If Congress is in session, the bill becomes law.
4.	No Legislative Power
The President has  no “legislative” power without authorization by Congress.
5.	No Power to Impound
The President has no power to impound funds whose expenditure Congress has unambiguously mandated.
B.	POWER OVER EXTERNAL AFFAIRS
1.	War
The President has no power to declare war but may act militarily in actual hostilities against the U.S. without a congressional declararation of war.  However, Congress, under its power to enact a military appropriation every two years, may limit the President.
2.	Foreign Relations
The President has paramount power to represent the U.S. in day-to-day foreign relations.
3.	Treaty Power
The President has the power to enter into treaties with the consent of two-thirds of the Senate.
a)	Supreme Law
Treaties are on par with congressional acts in supremacy.  State laws that conflict are invalid.
b)	Conflict with Federal Laws
A conflict between a congressional act and a valid treaty is resolved by order of adoption: the last time prevails.
4.	Executive Agreements
Executive agreements are signed by the President and the head of a foreign country.  They can be used for any purpose that treaties can be used for.  They do not require the consent of the Senate.
a)	Conflict with State Laws
In a state law conflicts with an executive agreement, the agreement prevails.
b)	Conflict with Federal Laws
If an executive agreement conflicts with a federal law, the federal law prevails over the agreement.
C.	EXECUTIVE PRIVILEGE/IMMUNITY
1.	Executive Privilege
The President has a privilege to keep certain communications secret.  National security secrets are given great deference by the courts.
a)	Exception
In criminal proceedings, presidential communiques will be available to the prosecution where a need for such information is demonstrated.
2.	Executive Immunity
The President has absolute immunity from civil damages based on any action he took within his official responsibilities, but there is no immunity for acts that allegedly occurred before taking office.  If presidential aids have exercised discretionary authority in a sensitive area, they may share in the immunity for suits brought concerning that area.
D.	IMPEACHMENT
The President, Vice President, and all civil officers of the United States are subject to impeachment (the bringing of charges).  Grounds include treason, bribery, high crimes, and misdemeanors.  A majority vote in the House is necessary to invoke the charges of impeachment, and a two-thirds vote in the Senate is necssary to convict and remove from office.

THE FEDERAL SYSTEM
IV.	RELATIVE SPHERES OF FEDERAL AND STATE POWERS
A.	EXCLUSIVE FEDERAL POWERS
1.	Powers of States Expressly Limited
Some powers are expressly federal because the Constitution limits or prohibits the use of the power by states (e.g., treaty power, coinage of money).
2.	Inherent Federal Powers
Other powers are exclusively federal because the nature of the power itself is such that it can be exercised only by the federal government (e.g., declaration of war, federal citizenship).
B.	EXCLUSIVE STATE POWERS
All powers not delegated to federal government are reserved to the states.  Note, however, that federal powers are given an expansive interpretation, and thus little state power is exclusive.
C.	CONCURRENT FEDERAL AND STATE POWER - EFFECT OF SUPREMACY CLAUSE
Because of the Supremacy Clause, a federal law may supersede or preempt local laws.
1.	Conflict Between State and Federal Laws
If a state law conflicts with federal law, the state law will be invalidated.
2.	State Prevents Achievement of Federal Objective
If a state or local law prevents achievement of a federal objective, it will be invalidated.  This is true even where state law was enacted for some valid purpose and not to frustrate the federal law (e.g., state law providing for suspension of driver’s license of persons who fail to pay off an auto accident case judgment, regardless of the person’s discharge in bank-ruptcy, is invalid).
3.	Preemption
A valid federal statute or regulation may expressly or impliedly “occupy” the entire field thus precluding any state or local regulation even if the state or local regulation is nonconflicting.  Factors consdered here (if there is no express preemption) are (i) comprehensiveness of the federal scheme and (ii) creation of an agency to administer the law.
D.	ABSENCE OF FEDERAL AND STATE POWERS
Some powers are denied to both Congress and the states.  for example, the qualifications for serving in Congress are set by the Constitution and cannot be altered by Congress or the state.
E.	INTERSTATE COMPACT CLAUSE
The Interstate Compact Clause concerns agreements between states.  If the agreement increases the states’ power at the expense of the federal power, congressional approval is required.
V.	INTERSOVEREIGN LITIGATION
A.	SUITS BY UNITED STATES AGAINST A STATE
The United States may sue a state without its consent.  The Supreme Court has nonexclusive original jurisdiction in all controversies between the United States and a state.
B.	SUITS BY A STATE AGAINST UNITED STATES
Public policy forbids a state from suing the United States without its consent.  Congress can pass legislation that permits the United States to be sued by a state in given situations.
C.	FEDERAL OFFICER AS DEFENDANT
1.	Limitation
A suit against a federal officer is deemed to be brought against the United States itself if the judgment sought would be satisfied out of the public treasury or would interfere with public administration and therefore is not permitted.
2.	Specific Relief Against Officer
Specific relief against an officer as an individual will be granted if the officer acted ultra vires (beyond his authoritiy).
D.	SUITS BY ONE STATE AGAINST ANOTHER
One state may sue another state without the latter’s consent.  The Supreme Court has exclusive original jurisdiction.
E.	SUITS AGAINST A STATE IN ANOTHER STATE’S COURT
One state may be subject to the jurisdiction (by being sued by the citizen of another state) of another state’s court.
VI.	INTERGOVERNMENTAL TAX AND REGULATION IMMUNITIES
A.	FEDERAL TAXATION AND REGULATION OF STATE OR LOCAL GOVERNMENTS
1.	Tax or Regulation Applying to Both States and Private Entities - Valid
Congress may subject state and local goverment activities to regulation or taxation if the law or tax applies to both the public sector and the private sector (e.g., minimum wage laws).
2.	Tax or Regulation Applying Only to States
A federal tax or regulation that is not applicable to private businesses and that merely taxes or regulates a purely state or local governmental activity may be limited by the Tenth Amendment (e.g., New York v. United States requiring states to either regulate radioactive waste or take title to it is beyond Congress’s power).
a)	Exception - Civil Rights
Congress may restrict state activities that violate civil liberties.
b)	Exception - Spending Power Conditions
Congress may “indirectly” regulate states through the spending power by imposing conditions on the grant of money (e.g., federal highway funds will be given only to states with a 21-year minimum age for drinking of alcohol).
3.	Commandeering State Officials
While not specifically resting on the Tenth Amendment, the Supreme Court has held that Congress may not require state executive officials (e.g., the police) to enforce federal laws because such a requirement would upset the Constitution’s “dual sovereignty” structure (i.e., both the states and the federal governments are sovereigns).
B.	STATE TAXATION OF FEDERAL GOVERNMENT
A state may not directly tax federal instrumentalities without the consent of Congress.  However, nondiscriminatory, indirect taxes are permissible if they do not unreasonably burden the federal government (e.g., state income tax on federal employees).  States may not regulate the federal government or its agents while performing their federal functions.
VII.	PRIVILEGES AND IMMUNITIES CLAUSES
A.	ARTICLE IV - PRIVILEGES OF STATE CITIZENSHIP
The Interstate Privileges and Immunities Clause prohibits discrimination by a state against nonresidents.
Note: Corporations and aliens are not protected by this clause. (In contrast, corporations and aliens are protected by the Equal Protection and Due Process Clauses of the Fourteenth Amendment, as well as the Dormant Comerce Clause, discussed infra.)
1.	Only “Fundamental Rights” Protected
Only “fundamental rights” - those involving important commercial activities (e.g., the pursuit of livelihood) and civil liberties - are protected.
2.	Substantial Justification 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 nonresidents either cause or are part of the problem that the state is attempting to solve and that there are no less restrictive means to solve the problem.
3.	Note - Relationship to Commerce Clause
Although the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause may apply different standards and produce different results, they tend to mutually reinforce each other.  Consequently, they both have to be considered in exam analysis.

B.	FOURTEENTH AMENDMENT - PRIVILEGES OF NATIONAL CITIZENSHIP
States may not deny their citizens the privileges or immunities of national citizenship (e.g., the right to petion Congress for redress of grievances, the right to vote for federal officers, and the right to interstate travel).  Corporations are not protected by this Clause.

STATE REGULATION OR TAXATION OF COMMERCE
VIII.	REGULATION OF FOREIGN COMMERCE
With a few minor exceptions, the power to regulate foreign commerce lies exclusively with Congress.
IX.	REGULATION OF INTERSTATE COMMERCE
A.	REGULATION OF COMMERCE BY CONGRESS
1.	Power of Congress to Supersede or Preempt State Regulation
When Congress regulates interstate commerce, conflicting state laws are superseded and even nonconflicting state or local laws in the same field may be preempted. (See IV.C.3., supra.)
2.	Power of Congress to Permit or Prohibit State Regulation
Congress may permit state regulations that would otherwise violate the Commerce Clause.  Likewise, Congress may prohibit state regulations that could otherwise be upheld under the Commerce Clause.  Congress may not, however, permit states to violate civil liberties.
B.	STATE REGULATION OF COMMERCE IN THE ABSENCE OF CONGRESSIONAL ACTION
If Congress has not enacted laws regarding the 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 or local regulation will violate the Commerce Clause.
1.	Discriminatory Regulations
State or local regulations that discriminate against interstate commerce to protect local economic interests are almost always invalid (e.g. New York cannot ban California wines or tax them at a higher rate than local wines).
a)	Exception - Important State Interest
A discriminatory state or local law may be valid if it furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternatives available.  Example: State could prohibit importation of live baid fish because parasites could have detrmiental effect on its own fish population.  However, state could not prohibit export of live baid fish when no major state interest was involved.
b)	Exception - State as “Market Participant”
A state may prefer its own citizens when acting as a market participant (e.g., when buying or selling, hiring labour, or giving subsidies).
2.	Nondiscriminatory Laws - Balancing Test
If a nondiscriminatory state law (i.e., local and out of state interests are treated alike) 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.  Example: Iowa statute banning trucks over 60 feet was invalid because the state showed no significant evidence of increased safety and the burden on commerce was substantial.

STATE REGULATION OF INTERSTATE COMMERCE (DORMANT COMMERCE CLAUSE)

DOES THE STATE REGULATION AFFECT AN ACTIVITY ADDRESSED BY FEDERAL LEGISLATION?
YES	- Invalid state regulation if federal law preempts the field or the state law conflicts with the federal law.
	- Valid state regulation if the federal law authorizes the state law.

NO	DOES THE STATE REGULATION DISCRIMINATE AGAINST INTERSTATE COMMERCE?
YES	Invalid unless:
	(i) It furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory alternative; or
	(ii) The state is acting as a market participant

NO	DOES THE STATE REGULATION BURDEN INTERSTATE COMMERCE?
YES	Invalid unless the state’s interest in the regulation outweights the burden on interstate commerce
NO	Valid state regulation

DORMANT COMMERCE CLAUSE VS. ARTICLE IV PRIVILEGES AND IMMUNITIES

	Dormant Commerce Clause	Privileges and Immunities Clause of Article IV	
State/Local action discriminates against out-of-state entities	If the discrimination burdens interestate commerce and there is no applicable federal legislation, the action is invalid unless:
(i) It furthers an important noneconomic state interest and there are no reasonable alternatives; or
(ii) The state is a market participant (i.e., purchaser, seller, subsidizer).	If the action denies the out-of-state person important economic interests (e.g., livelihood) or civil liberties, the law is invalid unless the state has a substantial justification and there are no less restrictive means.	
State/Local action does not discriminate	If the law burdens interstate commerce and the burden outweighs the state’s interest in the action, the law is invalid.	Privileges and Immunities Clause does not apply where there is no discrimination.	
May an alien or a corporation be a plaintiff?	Yes	No	
Is there a market participant exception?
	Yes	No	
Note: The Article IV Privileges and Immunities Clause is stronger than the Commerce Clause (no market participant exception), but it is much narrower in scope (applies only to discrimination against economic interest; does not protect corporations or aliens).	

C.	TWENTY-FIRST AMENDMENT - STATE CONTROL OVER INTOXICATING LIQUOR
1.	Intrastate Regulation
State governments have wide latitude over the importation of liquor and the conditions under which it is sold or used within the state.  However, regulations that constitute only an economic preference for local liquor manufacturers may violate the Commerce Clause.
2.	Interstate Regulation
Liquor in interstate commerce is subject to the Commerce Clause.
3.	Conflicts Between State Liquor Laws and Individual Rights
The state’s power is also limited by other constitutional provisions, such as the Bill of Rights and the Due Process and Equal Protection Clauses.
4.	Federal Power
Congress may regulate economic transactions involving liquor (e.g., sales of alcoholic beverages) through federal commerce power (e.g., antitrust laws) or by conditioning grants of money (e.g., highway funds given only to state with minimum drinking age of 21 years).
X.	POWER OF STATES TO TAX INTERSTATE COMMERCE
The same general considerations that apply to state regulation of commerce (see supra) apply to state taxation of commerce.
A.	GENERAL CONSIDERATIONS
Congress has complete power to authorize or forbid state taxation that affects interstate commerce.
1.	Discriminatory Taxes
Unless authorized by Congress, state taxes that discriminate against interstate commerce (e.g., tax on out of state businesses higher than tax on in state businesses) violate the Commerce Clause.  Note that these taxes may also violate other constitutional provisions (e.g., the Privileges and Immunities Clause of Article IV or the Equal Protection Clause).
2.	Nondiscriminatory Taxes
A nondiscriminatory tax will be valid if the following rquirements are met:
a)	Substantial Nexus
To be valid, the tax must apply to an activity having a substantial nexus to the taxing state. (lack of a substantial nexus might also violate the due process requirement of minimum contracts, but substantial nexus requires more in-state connections.)
b)	Fair Apportionment
To be valid, the tax must be fairly apportioned according to a rational formula.  However, the taxpayer has the burden  of proving unfair apportionment.  (An unfairly apportioned tax may also violate equal protection.)
c)	Fair Relationship
To be valid, the tax must be fairly related to the services or benefits provided by the state.
B.	USE TAXES
1.	Permissible in Buyer’s State
Use taxes are imposed on goods purchased outside the state but used within it.  They are valid.
2.	State May Forece Seller to Collect Use Tax
An interstate seller may be required to collect a use tax if the seller has a fufficient nexus with the taxing state (e.g., maintains officies in the taxing state).
a)	Drummers Sufficient
Drummers (persons who merely solicit offers to be accepted by the seller in an out of  state office with shipment to be by common carrier and payment by mail) are sufficient to establish the sufficient nexus here, but mail solicitation is insufficient.
C.	SALES TAXES
1.	Sales Tax by Seller’s State
a)	Sale Consummated Within State
If the sale is consummated within the state, a sales tax by the seller’s state is valid - even though the buyer takes the goods outside the state for use.  There is no need to apportion the tax, even if the sales include services to be performed in another state.
b)	Sale Consummated Outside State
If the sale is made to a buyer outside the state, a sales tax by the seller’s state is invalid.
2.	Sales Tax by Buyer’s State
Here, sales are to local buyers by sellers engaged in interstate commerce.
a)	Tax Permitted If Seller Has Substantial Contracts
If the interstate seller has substantial contracts with the buyer’s state, a sales tax by the buyer’s state is valid - even though the goods are delivered from outside the state.
b)	“Drummers” Insufficient
However, if the only contract between the interestate seller and the buyer’s state consists of drummers, a sales tax by the buyer’s state is invalid.  (However, the buyer’s state could potentially impose a use tax on the purchaser.)
D.	AD VALOREM PROPERTY TAXES
1.	No Tax on Commodities in Course of Interstate Commerce
Commodities in interstate transif are entirely exempt from state taxation.
a)	When Does Interstate Transportation Begin?
Interstate transportation begins when the cargo (i) is delivered to an interstate carrier or (ii) actually starts its interstate journey.
b)	Effect of “Break” in Transit
A break in the continuity of transit does not destroy the interstate character of the shipment unless the break was intended to end or suspend the shipment.
c)	When Does Interstate Shipment End?
The interstate shipment usually ends when the cargo reaches its destination; thereafter the goods are subject to local tax.
2.	Tax on Instrumentalities Used to Transport Goods Interstate
The validity of ad valorem property taxes on instrumentalities of commerce (e.g., trucks or airplanes) depends on (i) whether the instrumentality has acquired a “taxable situs” in the taxing state (i.e., whether there are sufficient “contracts” with the taxing state to justify the tax) and (ii) whether the value of the instrumentality has been properly apportioned according to the amount of the “contracts” with each taxing state.
a)	Taxable Situs
An instrumentality has a taxable situs in a state if it receives benefits or protection from the state. (There may be more than one taxable situs).  Example: Airplane had taxable situs in state - even though airline owned no property in state - because airline made 18 regularly scheduled flights daily from a rented depot in state.
b)	Apportionment Requirement
A tax apportioned on the value of the instrumentality will be upheld if it fairly approximates the average physical presence of the instrumentality in the taxing state.  The taxpayer’s domiciliary state can tax the full value of instrumentalities used in interstate commerce unless the taxpayer can prove that a defined part thereof has acquired a “taxable situs” elsewhere.
E.	PRIVILEGE, LICENSE, FRANCHISE, OR OCCUPATIONAL TAXES
1.	General Rule - Taxes Permitted
These so called doing busines taxes are generally permitted as long as the basic requirements are met: (i) the activity taxed must have a substantial nexus to the taxing state; (ii) the tax must be fairly apportioned; (iii) the tax must not discriminate against interstate commerce; and (iv) the tax must fairly relate to services provided by the state.
2.	Flat License Tax on “Drummers” Prohibited
Flat license fees may not be levied upon “drummers” (solicitors) who seek local orders to be filled from goods shipped interstate, even if the same fee is levied on those selling intrastate goods.  But note: A state may impose a license tax on a peddler (itinerant salesperson) who actually sells and delivers his wares within the state, provided the tax rates are nondiscriminatory.
3.	Taxes on Interstate Carriers
License taxes on interstate carriers will be upheld if they are imposed to compensate the state for the use of its roads.  These taxes must not discriminate against out of state carriers.
4.	Taxes on Interstate Passengers
A tax on interstate passengers is valid as long as the amount of the tax is based on some fair approximation of use and does not discriminate against interstate commerce.
F.	NET INCOME TAXES
States may impose failry apportioned, nondiscriminatory net income taxes on interstate firms that conduct business within their boarders.  Note: A federal statute prohibits state net income taxes on out of state businesses whose only contacts with the taxing state are salespeople.
G.	VALUE ADDED TAX
A value added tax (a tax on the value added to an item at each stage of production or distribution) is valid if it meets the genreal requirements set out in E.1., supra.
XI.	POWER OF STATES TO TAX FOREIGN COMMERCE
The Import-Export Clause and the Commerce Clause greatly limit the states’ power to tax foreign commerce.

INDIVIDUAL GUARANTEES AGAINST GOVERNMENT OR PRIVATE ACTION
XII.	LIMITATIONS ON POWER AND STATE ACTION REQUIREMENT
A.	CONSTITUTIONAL RESTRICTIONS ON POWER OVER INDIVIDUALS
1.	Bill of Rights
By its terms, the Bill of Rights (the first ten amendments to the United States Constitution) limits federal power.  However, the Fourteenth Amendment Due Process Clause applies almost all provisions of the Bill of Rights to the states.  Exceptions: The most notable exceptions to incorporation are: (i) the Fifth Amendment’s prohibition of criminal trials without a grand jury indictment and (ii) the Seventh Amendment’s right to a jury in civil cases.
2.	Thirteenth Amendment
The Thirteenth Amendment prohibits slavery and involuntary servitude.  Under the Thirteenth Amendment’s Enabling Clause, Congress can prohibit racially discriminatory action by anyone (the government or a private citizen).
3.	Fourteenth and Fifteenth Amendments
The Fourteenth Amendment prohibits states from depriving any person of life, liberty, or property without due process and equal protection of law.  The Fifteenth Amendment prevents both the federal and state governments from denying a citizen the right to vote on account of race or colour.  Generally, private conduct is not prohibited by these amendments - only where some state action is involved.  (Purely private conduct may be prohibited, however, on a separate constitutional basis such as the Commerce Clause.)
4.	Commerce Clause
Under the broadly construed commerce power, Congress may prohibit private racial discrimination in activities that might have a substantial effect on interstate commerce. 
5.	Rights of National Citizenship
Congress has inherent power to protect rights of citizenship (e.g., rights to interstate travel, assemble, and petition Congress for redress).
B.	STATE ACTION REQUIREMENT
Since the Constitution generally applies only to government action, to show a constitutional violation “state action” must be involved.  Note: This concept applies to government and government officers at all levels - local, state, or federal.  Note, however, that state action can be found in actions of seemingly private individuals who (i) perform exclusive public functions or (ii) 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 - Facilitating Private Action
State action also exists wherever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens.
XIII.	RETROACTIVE LEGISLATION
A.	CONTRACT CLAUSE - IMPAIRMENT OF CONTRACT
The Contract Clause prohibits states from enacting any law that retroactively imparis contract rights.  It does not affect contracts not yet entered into.
1.	Not Applicable to Federal Government
There is no comparable clause applicable to the federal government, but flagrant contract impairment would violate the Fifth Amendment Due Process Clause.
2.	Basic Impairment Rules
a)	Private Contracts - Intermediate Scrutiny
State legislation that substantially impairs an existing private contract is invalid unless the legislation (i) serves an important and legitimate public interest and (ii) is a reasonable and narrowly tailored means of promoting that interest.  Example: Imposing a moratorium on mortgage foreclosures during a severe depression did not violate the Contract Clause.
b)	Public Contracts - Strict Scrutiny
Legislation that impairs a contract to which the state is a party is tested by the same basic test as private contracts, but the contract will likely receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.
B.	EX POST FACTO LAWS
The state or federal government may not pass ex post facto laws (i.e., laws that retroactively alter criminal offenses or punishments).  Specifically, laws creating a new crime, increasing punishment, or reducing required evidence are not valid, but procedural changes not affecting substantive elements are not ex post facto.
C.	BILLS OF ATTAINDER
Bills of attainder are legislative acts that inflict punishement on individuals without a judicial trial.  Both  federal and state governments are prohibited from passing bills of attainder.
D.	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.
XIV.	PROCEDURAL DUE PROCESS
A.	BASIC PRINCIPLE
A fair process (e.g., notice and a hearing) is rquired for a government agency to individually take a person’s “life, liberty, or property.” Only intentional - not negligent - deprivation of these rights violates the Due Process Clause.
B.	IS LIFE, LIBERTY, OR PROPERTY BEING TAKEN?
1.	Liberty
The term “liberty” is not specifically defined.  It includes more than just freedom from bodily restraints (e.g., it includes the right to contract and to engage in gainful employment).  A deprivation of liberty occurs if a person:
1.	Loses significant freedom of action; or
2.	Is denied a freedom provided by the Constitution or a statute.
2.	Property
“Property” includes more than personal belongings and realty, but an abstract need or desire for (or a unilateral exectation of) a  benefit is not enough.  There must be a legitimate claim or “entitlement” to the benefit under state or federal law.  Examples of property interests include continued attendance at public school, welfare benefits, and government employment.
C.	WHAT TYPE OF PROCESS IS REQUIRED?
The type and extent of reuired procedures are determined by a three-part balancing test, which weighs:
1.	The importance of the interest to the individual;
2.	The value of specific procedural safeguards to that interest; and
3.	The government interest in fiscal and administrative efficiency.
Presumably, fair procedures and an unbiased decisionmaker will alwasy be required.  Notice and chance to respond before termination of the liberty or property interest are usually required.
D.	DUE PROCESS RIGHTS ARE SUBJECT TO WAIVER
As a general rule, due process rights are, presumably, subject to waiver if the waiver is voluntary and made knowingly.
E.	ACCESS TO COURTS - INDIGENT PLAINTIFFS
Government fees (e.g., court filing fees) must be waived when imposition of a fee would deny a fundamental right to the indigent (see infra, for discussion of fundamental rights).  Thus, for example, a marriage license or divorce court filing fee (privacy rights) or filing fee for canditates for electoral office (voting rights) must be waived.  However, fees can be imposed when nonfundamental rights are involved (e.g., fees for a bankruptcy discharge or review of welfare termination).
XV.	THE “TAKING” CLAUSE
A.	IN GENERAL
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 Taking Clause is not a source of power for taking, but rather is a limitation.  “Taking” includes not only physical appropriations but also some government action that damages property or impairs its use.
B.	“PUBLIC USE” LIMITATION LIBERALLY CONSTRUED
If the government’s action is rationally related to a legitimate public purpose (e.g., for health, welfare, safety, economic, or aesthetic reasons), the public use requirement is satisfied.  Authorized takings by private enterprises are included if they redound to the public advantage (e.g., railroads and public utilities).
C.	“TAKING” VS. “REGULATION”
The crucial issue is whether governmental action is a taking (requiring payment of just compensation) or merely a regulation (not requiring compensation).  There is no clear cut formula for making this determination, but the following genral guidlines apply:
1.	Actual Appropriation or Physical Invasion
These types of action will almost always amount to a taking.  Exception: Emergency situations.
2.	Use Restictions
a)	Denial of All Economic Value of Land - Taking
If a government regulation denies a landowner all economic use of his land (e.g., a regulation enacted after plaintiff buys his land prohibits building on the land), the regulation amounts to a taking unless principles of nuisance or property law that existed when the owner acquired the land make the use prohibitable.
b)	Decreasing Economic Value - Balancing Test
Regulations that merely decrease the value of property (e.g., prohibit the most eneficial use) 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.
3.	Remedy - “Just Compensation”
If the regulation amounts to a taking, the government must:
1.	Pay the property owner just compensation for the property (i.e., fair market value); or
2.	Terminate the regulation and pay the owner for damages that occurred while the regulation was in effect (i.e., temporary taking damages).
XVI.	INTRODUCTION TO SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION
A.	RELATIONSHIP BETWEEN SUSTANTIVE DUE PROCESS AND EQUAL PROTECTION
Both substantive due process and equal protection guarantees require the Court to review the substance of a law rather than the procedures employed.
1.	Substantive Due Process
Where the law limits liberty of all persons to engage in some activity, it usually is a due process question.
2.	Equal Protection
Where the law treats certain classes of people differently from others, it usually is an equal protection problem.
B.	WHAT STANDARD OF REVIEW WILL THE COURT APPLY?
1.	Strict Scrutiny (Maximum Scrutiny)
Regulations affecting fundamental rights (i.e., interstate travel, privacy, voting, and First Amendment rights) or involving suspect classifications (i.e., race, national origin, and alienage) are reviewed under the strict scrutiny standard: The law is upheld if it is necessary to achieve a compelling government purpose.  This is a difficult test to meet, and so a law examined under a strict scrutiny standard will often be invalidated - especially when there is a less burdensome alternative to achieve the government’s goal.
a)	Burden of Proof
The government bears the burden of proof.
2.	Intermediate Scrutiny
Regulations involving quasi-suspect classifications (i.e., gender and legitimacy) are reviewed under the intermediate scrutiny standard: The law is upheld if it is substantially related to an important government purpose.
a)	Burden of Proof
It is unclear who bears the burden of proof.  It is probably the government.
3.	Rational Basis (Rational Relatedness)
Regulations that do not affect fundamental rights or involve suspect or quasi-suspect classifications (most laws) are reviewed under the rational basis standard:  The law is upheld if it is rationally related to a legitimate government purpose.  This is a very easy standard to meet; therefore the law is usually valid - unless it is arbitrary or irrational.
a)	Burden of Proof
The person challenging the law has the burden of proof.
b)	Classifications that Are Not Suspect or Quasi-Suspect
The rational basis standard is used to review regulations involving classifications that are not suspect or quasi-suspect, such as age, disability, and poverty.

SUBSTANTIVE DUE PROCESS OR EQUAL PROTECTION QUESTIONS

DUE PROCESS 5th & 14th Amendments (Regulation affects everyone) “No State shall... deprive any person of life, liberty, or property, without due process of law”	No Fundamental Rights Involved	Rational Basis Test:
Is the law rationally related to a legitimate government purpose?
Burden: On challenger	
			
DUE PROCESS OR
DUE PROCESS &
EQUAL PROTECTION	Fundamental Rights Involved (Privacy, Interstate Travel, Voting, First Amendment)	Strict Scrutiny Test:
Is the law necessary to achieve a compelling government purpose?
Burden: On government	
			
EQUAL PROTECTION 14th Amendment (Regulation affects certain class of people) “nor deny to any person within its jurisdiction the equal protection of the laws.”	Suspect Class Involved (Race, National Origin, Sometimes Alienage)	Strict Scrutiny Test	
			
EQUAL PROTECTION	Quasi-Suspect Class Involved (Gender, Legitimacy)	Intermediate Scrutiny Test:
Is the law substantially related to an important government purpose?
Burden: On government	
			
EQUAL PROTECTION	No Suspect or Quasi-Suspect Class and No Fundamental Right Involved	Rational Basis Test	

XVII.	SUBSTANTIVE DUE PROCESS
A.	CONSTITUTIONAL SOURCES - TWO CLAUSES
The Due Process Clause of the Fifth Amendment applies to the federal government.  The Due Process Clause of the Fourteenth Amendment applies to state and local governments.  The same test are applied under each clause.
B.	APPLICABLE STANDARDS
Where a fundamental right is limited, the law or action is evaluated under the strict scrutiny standard.  In all other cases, the rational basis standard is applied.
C.	A FEW IRREBUTTABLE PRESUMPTIONS MAY BE INVALID
If facts are presumed against a person so that she cannot demonstrate that she is qualified for some important benefit or right, the “irrebuttable presumption” may be unconstitutional.
XVIII.	EQUAL  PROTECTION
A.	CONSTITUTIONAL SOURCE
The Equal Protection Clause of the Fourteenth Amendment is limited to state action.  However, grossly unreasonable discrimination by the federal government violates the Due Process Clause of the Fifth Amendment.  The Court applies the same tests under either constitutional provision.
B.	APPLICABLE STANDARDS
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 standard applies.
C.	PROVING DISCRIMINATORY CLASSIFICATION
For strict or intermediate scrutiny to be applied, there must be intent on the part of the government to discriminate.  Intent may be shown by:
1.	A law that is discriminatory on its face;
2.	A discriminatory application of a facially neutral law; or
3.	A discriminatory motive behind the law.
Note: The third way to show intentional discrimination is the most difficult to prove.  A discriminatory effect alone is not enough.  The legislature’s discriminatory motive must be shown (e.g., by evidence of a history of discrimination).
D.	SUSPECT CLASSIFICATIONS
Classifications are suspect if they are based on race, national origin, or alienage.
1.	Race and National Origin
Classifications based on race or national origin are judged by a strict scrutiny standard.
a)	School Integration
Only intentional segragation violates the Constitution.  If school systems and attendance zones are established in a racially neutral manner, there is no violation.  Thus, there is no violation if housing patterns result in racial imbalance in schools.
(1)	Remedying Intentional School Segregation
A court may order a school district to eliminate proven racial discrimination in a school system (e.g., by ordering busing).  However the court-imposed remedying may not go beyond the vestiges of past segregation.  For example, a court may not order a district to attract students from outside the district when there is no evidence of past segregation outside the district.  Similarly, a court may order interdistrict busing to achieve racial integration only if it has been proven that both school districts cooperated in a policy to create racial discrimination in their schools.
b)	“Benign” Government Discrimination - Affirmative Action
Government action - whether by federal, state, or local governmental bodies - that favours racial or ethnic minorities is subject to the same strict scrutiny standard as is government action discriminating against racial or ethnic minorities.
(1)	Remedying Past Discrimination
The government has a compelling interest in remedying past discrimination against a racial or ethnic minority.  The past discrimination must have been persistent and readily identifiable.  A race-based plan cannot be used to remedy general past “societal discrimination.”
(2)	Where There Was No Past Discrimination
Even where the government has not engaged in past discrimination, it may have a compelling interest in affirmative action.  However, the governmental action must be narrowly tailored to that interest.  Example: Since the government has a compelling interest in promoting racial diversity in public school bodies and faculties, an educational institution may use race as one factor in admissions or hiring, but quota systems may not be used.
c)	Discriminatory Legislative Apportionment
Race can be considered in drawing up new voting districts, but it cannot be the predominate factor.  If a plaintiff can show that a redistricting plan was drawn up predominantly on th ebasis of racial considerations, the plan will violate the Equal Protection Clause unless the government can show that the plan is narrowly tailored to serve a compelling state interest.
2.	Alienage Classifications
a)	Federal Classifications
Because of Congress’s plenary power over aliens, federal alienage classifications are not subject to strict scrutiny.  Such classifications are valid if they are not arbitary and unreasonable.
b)	State and Local Classifications
Generally, state/local laws on alienage are suspect classifications subject to strict scrutiny.  Examples: It is unconstitutional for U.S. citizenship to be required for welfare, civil service jobs, or to become a lawyer.
(1)	Exception - Participation in Self-Government Process
If a law discriminates against alien participation in state government (e.g., voting, jury service, elective office), the rational basis standard is applied.  Also, the rational basis standard is used for state and local laws limiting certain non-elective offices involving important public policy (e.g., police officers, probation officers, and teachers).
c)	Undocumented Aliens
Undocumented (“illegal”) aliens are not a suspect classification.  Thus, state laws regarding them are subject to a “rational basis” standard.  (However, denial of free public education to undocumented alien children is invalid, and more than a simple rational basis standard was used by the Court.)
E.	QUASI-SUSPECT CLASSIFICATIONS
Classifications based on legitimacy and gender are “quasi-suspect.”
1.	Gender Classifications
Gender classifications are reviewed under the intermediate scrutiny standard: They must be substantially related to an important government purpose.  The government bears the burden of showing an “exceedingly persuasive justification” for the discrimination.
a)	Women
Intentional discrimination against women generally is invalid.  Classifications benefitting women that are designed to remedy past discrimination generally are valid.
b)	Intentional Discrimination Against Men
Intentional discrimination against men is generally invalid.  However, certain laws have been found to be substantially related to an important government interest (e.g., statutory rape laws, all male draft).
2.	Legitimacy Classifications
Legitimacy classifications are also reviewed under the intermediate scrutiny standard:  They must be substantially realted to an important government interest.  Discriminatory regulations intended to punish illegitimate children (e.g., law providing a benefit to legitimate children but not to illegitimate children) are invalid.  Example: A law allowing only legitimate children to recover from their father’s estate is invalid.  But note: A law allowing illegitimate children to recover from their father’s estate only if parenthood is established before the father’s death is valid.
F.	OTHER CLASSIFICATIONS
All other classifications are evaluated under the rational basis standard.  These include age, disability, and wealth classifciations.  For example, mandatory retirement ages may be established; and since education is not a fundamnetal right, there is no denial of equal protection when wealthier children can afford to pay for access to the best state-operated schools.
XIX.	FUNDAMENTAL RIGHTS
A.	INTRODUCTION
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.  The applicable standard in either case is strict scutiny.  Thus, government action must be necessary to protect a compelling governmental interest. (Remember that ther must be no less restrictive means to achieve this goal.)
B.	RIGHTS OF PRIVACY
Various privacy rights include marriage, sexual relations, abortion, and childrearing are fundamental rights.  Regulations affecting these rights are reviewed under the strict scrutiny standard.
1.	Marriage
The right of a male and female to enter into (and, probably, to dissolve) the marriage relationship is a fundamental right.  However, a statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legititmate penological interests.
2.	Use of Contraceptives
A state cannot prohit distribution of nonmedical contraceptives to adults.
3.	Abortion
The right of privacy includes the right of a woman to have an abortion without interference from the state under certain circumstances.  However, normal strict scrutiny analysis cannot be applied because the state has two compelling interests here that often compete: protecting the woman’s health and protecting the fetus that may become a child.  In its latest abortion rights approach, the Supreme Court has adopted two basic rules: a pre-viability rule and a post-viability rule.
a)	Pre-Viability Rule - No Undue Burdens
Before viability (a realistic possiblity that the fetus could survive outside the womb), 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.
b)	Post-Viability Rule - May Prohibit Abortion Unless Woman’s Health Is Threatened
Once the fetus is viable, the state’s interest in the fetus’s life can override the woman’s right to choose an abortion, but the state cannot prohibit the woman from obtaining an abortion if an abortion is necessary to protect the woman’s health or safety.
c)	Financing Abortions
The government has no obligation to pay for abortions.
4.	Obscene Reading Material
The right to privacy includes freedom to read obscene material in one’s home (except for child pornography), but not the right 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.  This right does not extend to unrelated people.
6.	Right to Educate Children
Parents have a right to educate their children outside of public schools, subject to the state’s right to prescribe reasonable educational standards.
7.	Sodomy - No Privacy Right
There is no privacy right of consenting adults to engage in sodomy.
8.	Collection and Distribution of Personal Data - No Privacy Right
The state may reasonably gather and distribute information about its citizens.  Thus, there is no privacy right to prohibit the accumulation of names and addresses of patients for whom dangerous drugs are prescribed.
C.	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.	Resticitions on Right to Vote
a)	Residency Requirements
Reasonable time periods for residency (e.g., 30 days) are valid.  Note that Congress may override state residency requirements in presidential elections and substitute its own.
b)	Property Ownership
Conditioning the right to vote or hold office on ownership of property is usually invalid.  Exception: Special purpose elections (water storage districts); see below.
c)	Poll Taxes
Poll taxes are unconstitutional.
d)	Primary Elections
States may require early registration to vote in primaries.  However, states cannot prohibit polical parties from opening their primary elections to anyone, whether or not registered with the party.
2.	Dilution of Right to Vote
a)	One Person, One Vote Principle
The “one person, one vot” principle applies whenever any level of government, state or local, decides to select representatives to a governmental body by popular election from indiviual districts.
(1)	Congressional Elections
States must use almost exact mathematical equality when creating congressional districts within the state.  This is not true of Congress, however, when it apportions representatives among the states; Congress’s good faith method for apportioning representatives commands more deference and is not subject to the precise mathematical formula as are state plans.
(2)	State and Local Elections
For state and local elections, the variance in the number of persons included within districts must not be more than a few percentage points.
(3)	Exception - Appointed Officials and Officials Elected “At-Large”
The apportionment requirement is inapplicable to officials who are appointed or elected at-large.
(4)	Exception - Special Purpose Election
The one person, one vote principle does not apply to elections of officials who do not exercise “normal governmental authority” but rather deal with matters of special interests in the community (e.g., water storage districts).
b)	Gerrymandering
Race (and presumably other suspect classifications) cannot be the predominant factor indrawing the boundaries of voting districts unless the district plan can pass muster under strict scrutiny.
3.	Candidates and Campaigns
a)	Candidate Qualifications
(1)	Fee Must Not Preclude Indigents
States may not charge candidates a fee that results in making it impossible for indigents to run for office.
(2)	Resticitions on Ability To Be a Candidate
A ballot access regulation must be a reasonable,  nondiscriminatory means of promoting important state interests.  A state may require candidates to show reasonable support to have their names placed on the ballot.
b)	Capaign Funding
The government may allocate more public funds to the two “major” parties than to “minor” parties for political campaigns.
D.	RIGHT TO TRAVEL
1.	Interstate Travel
An individual has a fundamental right to migrate from state to state, but not every restriction on the right to cross state lines is an impairment of the right to travel (e.g., increased penalties for a father abandoning his children and leaving the state are valid).  A problem arises when a state imposes a minimum durational residency requirement for receiving its benefits or otherwise dispenses state benefits based on the length of time a person has resided in the state.  It is not clear whether the court always reviews these regulations under the strict scrutiny standard.
2.	Right to International Travel
International travel is not a fundamental right.  It is, however, protected from arbitrary federal interference by the Fifth Amendment Due Process Clause; the rational basis standard applies.

FIRST AMENDMENT FREEDOMS
The first Amendment prohibits Congress from establishing a religion or interfering with the free exercise of religion, 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.
XX.	FREEDOM OF SPEECH AND ASSEMBLY
A.	GENERAL PRINCIPLES
Whenever the government seeks to regulate the freedoms of speech or assembly, the Court will weigh the great importance of speech and assembly rights against the interests or policies sought to be served by the regulation.  Guidelines:
1.	Content vs. Conduct
Speech and assembly regulations can generally be categorized as either content regulations (regulations of the conduct associated with speaking, such as the time of the speech, sound level, etc.).  Different standards are used to assess the validity of a regulation within each category.
a)	Content
It is presumptively unconstitutional to place burdens on speech because of its content except for certain categories of speech (obscenity, defamation, etc.)  Content-neutral speech regulations generally are subject to intermediate scrutiny; i.e., they must advance important interests unrealted to the suppression of speech and must not burden substantially more speech than necessary to further those interests.
b)	Conduct
Conduct related to speech can be regulated by content-neutral time, place, and manner restrictions.  (These rules will be discussed in detail below.)  Additionally, all regulations of speech are subject to the following restrictions.
2.	Reasonableness of Regulation
A regulation of speech or assembly is void “on its face” if it is explicitly vague or overbroad.  A void regulation is totally invalid; i.e., it is incapable of any application, and thus a person cannot be punished for  failure to follow the regulation - even if his speech or assembly could otherwise be regulated.  A regulation could be found to be void if it:
1.	Is overbroad, i.e., it regulates substantially more speech than is necesary (e.g., outlawing all First Amendment activity within an airport terminal);
2.	Is vague, i.e., it does not give reasonable notice of what is prohibited (e.g., a prohibition against lewd speech); or
3.	Gives officals broad discretion in applying the regulation e.g., allowing issuance of parade permits based on officials’ judgment about parade’s effect on community welfare).
3.	Scope of Speech
The freedom to speak includes the freedom not to speak.  thus, the government cannot require people to salute the flag or display other messages with which they disagree (e.g., a person need not display the motto “live free or die” on a license plate).  The freedom can extend to symbolic acts undertaken to communicate an idea (e.g., wearing a black armband to protest the war), although the government may regulate such conduct if it has an important interest in the regulation independent of the speech aspects of the conduct and the incidental burden on speech is no greater than necessary (e.g., to facilitate a smooth draft the government can prohibit the burning of draft cards).
B.	TIME, PLACE, AND MANNER RESTRICTIONS - REGULATION OF CONDUCT
The government has power to regulate the conduct associated with speech and assembly, although the breadth of this power depends on the forum in which the speech or assembly is to occur.
1.	Public Forums
Government regulation of public forums (e.g., streets, sidewalks, and parks) is permissible if it is:
1.	Content neutral;
2.	Narrowly tailored to serve a significant (important) government interest; and
3.	Leaves open alternative channels of communication.
Note Almost every legitimate governmental interest satisfies the significant/important standard.
a)	Injunctions
Injunctions against speech in public forums are treated differently from generally applicable laws.  If the injunction is content based, it must be necessary to achieve a compelling interest.  If  the injunction is content neutral, it must burden no more speech than is necessary to achieve a significant government interest.
2.	Nonpublic Forums
Speech and assembly can be more broadly regulated in nonpublic forums (i.e., government owned forums not historically linked with speech and assembly, such as military bases, schools, government workplaces, etc.).  In such locations, regulations are valid if they are:
1.	Viewpoint neutral; and
2.	Reasonably related to a legitimate government purpose.
3.	Private Forums
The government may adopt reasonable regulations to limit access to homes and other private forums (e.g., to protect privacy, government may require obtaining homeowner’s permission before soliciting; to facilitate mail delivery, government can prohibit placing unstamped items in mailboxes).
C.	UNPROTECTED SPEECH - REGULATION BASED ON CONTENT
To be valid, restrictions on the content of speech must be narrowly tailored to acheive a compelling government interest.  The government has a compelling interest in the following categories of speech, which are deemed “unprotected” speech under the First Amendment:
1.	Inciting Imminent Lawless Action
Speech can be burdened if it creates a clear and present danger of imminent lawless action.  It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it.
2.	Fighting Words
Speech can be burdened if it constitutes fighting words (personally abusive words that are likely to incite immediate physical retaliation in an average person).  Words that are merely annoying are not sufficient.  Note also that the Supreme Court will not tolerate fighting words statutes that are designed to punish only certain viewpoints (e.g., proscribing only fighting words that insult on the basis of race, religion or gender).
3.	Obscenity
Obscene speech is not protected.
a)	Elements
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 stanard;
2.	Is patently offensive and an affront to contemporary community standards; and
3.	Lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard.
b)	Standard May Be Different for Minors
The state can adopt a specific definition of obscenity applying to materials sold to minors, even though the material might not be obscene in terms of an adult audience.  However, government may not prohibit the sale or distribution of material to adults merely because it is inappropriate for children.
c)	Zoning and Liquor Restrictions
States may indirectly regulate obscene material.  For example they may use zoning or liquor regulation to achieve this end.
d)	Separate Test for Child Pornography
The government may prohibit distribution of visual depictions of sexual conduct involving children even if the material could not  otherwise be found to be obscene.
e)	Private Possession of Obscene Material
Private possession of obscene material in the home cannot be punished (except for possession of child pornography). However, the protection does not extend outside the home.
4.	Defamatory Speech
Defamatory speech can be burdened.  If a defamatory statement is about a public official or public figure or involves a public concern, the First Amendment requires the plaintiff to prove all the elements of defamation plus falsity and some degree of fault.  (See Torts outline for detailed discussion.)
5.	False Advertising - 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 substantial government interest;
2.	Directly advances that interest; and
3.	Is narrowly tailored to serve that interest.
D.	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.
1.	Procedural Safeguards
To be valid, a system for prior restraint must provide the following safeguards:
1.	The standards must be narrowly drawns, reasonable, and definite;
2.	Injunction must promptly be sought; and
3.	There must be prompt and final determination of the validity of the restraint.
A number of other cases, especially in the area of movie censorship, require that the governmetn bear the burden of proving that the speech involved is unprotected.
2.	Obscenity Cases
a)	Seizures of Books and Films
Seizures of a single book or film may be made with a warrant based on probable cause, although if the item is available for sale to the public a police offier may puchase a book or film to use as evidence without a warrant.  Large scale seizures must be preceded by a full scale adversary hearing and a judicial determination of obscenity.
b)	Movie Censorship
The court has found that time delays incident to censorship are less burdensome on movies than on other forms of expression.  Thus, the Court allows the government to establish censorship boards to screen movies before they are released, as long as the procedural safeguards discussed above are followed.
E.	FREEEDOM OF THE PRESS
Generally, the press has no greater First Amendment freedom than does a private citizen. Thus, the concepts discussed above apply.
1.	Access to Trials
The First Amendment guarantees the public and press a right to attend criminal (and probably civil) trials.  However, the right may be outweighed by an overriding interest stated in the trail judge’s findings (e.g., to protect children who are victims of sex offenses).  The right includes the right to be present at voir dire and at other pretrial proceedings, unless the judge makes specific findings that closure was narrowly tailored to preserve a higher value.
2.	Requiring Press to Testify Before Grand Jury
Members of the press may be required to testify before grand juries.
3.	Interviewing Prisoners
The First Amendment does not give journalists a right to interview specified prisoners of their choice or to inspect prison grounds.
4.	Business Regulation or Tax
The press and broadcasting companies can be subjected to general business regulations or taxes but cannot be targeted for special regulation or taxes.  A tax or regulation impacting on the press or a subpart of the press cannot be based on the content of a publication (e.g., a tax ememption cannot be given to “medical journals”) absent a compelling justification.
5.	Broadcasting Regulations
Radio and television broadcasting may be more closely regulated than the press.  The paramount right is the right of viewers and listeners to receive information of public concern rather than the right of broadcasters to broadcast what they please.  This paramount right allows government to forbid newspaper ownership of radio stations and to prohibit indecent speech over the airwaves.
a)	Fairness Doctrine
The First Amendment does not require broadcasters to accept political advertisements.  However, a radio station may constitutionally be required to offer free broadcasting time to certain individuals (e.g., opponents of political candidates or views endorsed by station or persons who have been personally attacked in a broadcast).
6.	Cable Television Regulation
While generally regulations of newspapers are subject to strict scrutiny, and regulations of the broadcast media are subject to less critical review, regulation of cable television transmissions are subject to review by a standard somewhere between these two (e.g., a law rquiring cable operators to carry local stations is subject to  “intermediate scrutiny” - because it is content neutral (see A.1.a., supra) - and is constituional because it serves the important interest of preserving economic viability of local broadcasters).
7.	Internet Regulation
The strict standard of First Amendment scrutiny, rather than the more relaxed standard applicable to broadcast regulation, applies to regulation of the Internet.
XXI.	FREEDOM OF ASSOCIATION AND BELIEF
A.	NATURE OF THE RIGHT
Altough the freedom of association is not mentioned explicitly in the Constitution, it is clearly implied from the rights that are explicilty noted.  Pursuant to this freedom, the government may neither prohibit politically unpopular groups nor unduly burden a person’s right to belong to such groups.  But note: This right is not absolute.  Infringements of the right must be justified by a compelling state interest, unrealted to the supression of ideas, and must be the least restrictive means of protecting the government interest involved.
B.	ELECTORAL PROCESS
Laws regulating elections might impact on the First Amendment freedoms of speech, assembly, and association.  The Court uses a balancing test to determine whether a regulation of the electoral process is valid:  If the restirction on First Amendment activity is severe, strict scrutiny is applied, but if the restriction is reasonable and nondiscriminatory, it genreally will be upheld.
1.	Limits on Contributions
To prevent corruption or the appearance thereof, laws may limit the amount of money that a person, group or corporation can contribute to a polical candidate.  However, the government may not limit the amount of money that may be spent to support or oppose a ballot referendum, and there is an exception for gorups or corporations formed specifically to particiapte in the political debate.
2.	Limits on Expenditures
Laws may not limit the amount that a candidate or group spends on a political campaign.
3.	Compare - Regulations of Core Political Speech
Regulation of “core political speech,” rather than regulation of the process surrounding an election, will be upheld only if it passes muster under strict scrutiny.
C.	BAR MEMBERSHIPS AND PUBLIC EMPLOYMENT
1.	Restraints on Conduct
A public employee may not be fired for expressing views regarding public issues unless her speech or association disrupts her employer’s policies or undermines the employer’s authority.
a)	Independent Contractors Have Similar Rights
With regard to government projects, an independent contractor has speech rights similar to those of a government employee - the contractor cannot lose the contract merely because the government disagrees with something the contractor says.
b)	Participation in Political Campaigns
Employees within the executive branch cannot take an active part in political campaigns (pursuant to the Hatch Act).
c)	Bans on Receiving Honoraria
A provision banning government employees from accepting an honorarium for making speeches, writing articles, or making appearances was held to violate the First Amendment when applied to “rank and file” employees.  Such a rule deters speech within a broad category of expression by a massive number of potential speakers and, thus, can be justified only if the government can show that the employees’ and their potential audiences’ rights are outweighed by the necessary impact the speech would have on actual operation of the government.
d)	Patronage
A public employee may not be hired, fired, promoted, transferred, etc., based on party affiliation except as to policymaking positions, where party affiliation is relevant.
e)	Must Not Be Vague
A standard for conduct must not be vauge (e.g., a prohibition against “teasonable or seditious” utterings is vauge”.
2.	Loyalty Oaths
The government may require employees to take loyalty oaths, as long as the oaths are not overbroad or vague.
a)	Overbreadth
An oath cannot prohibit membership in the Communist Party or require abstention from advocating overthrow of the government as an abstract doctrine.
b)	Vagueness
An oath requiring employees to support the Constitution and to oppose the unlawful overthrow of the government is valid; but an oath requiring public employees to salute the flag is invalid (since refusal to salute the flag on religious grounds might conflict with the oath).
3.	Disclosure of Associations
The government amy not force disclosure of every organizational membership in exchange for a government employment or other benefit; it may only inquire into those activities that are relevant to the employement or benefit sought.  Even here, however, a person can exercise his Fifth Amendment right to remain silent if the disclosure would be incriminating.
XXII.	FREEDOM OF RELIGION
A.	CONSTITUTIONAL PROVISION
The First Amendment prohibition on establishment of religion and its protection of the free exercise of religion is applicable to the states through the Fourteenth Amendment.
B.	FREE EXERCISE CLAUSE
1.	No Punishment of Beliefs
The Free Exercise Clause prohibits governmetn from punsihing someone on the basis of her religious belief.  For example, the Clause forbids:
1.	State governments from requiring office holders or employees to take a religious oath (the federal government is similarly restricted by Article VI);
2.	States from excluding clerics from holding public office; and
3.	Courts from declaring a religious belief to be false.
The Supreme Court has not defined what constitutes religious belief, but it is clear that religious belief need not come from an organized religion or involve a supreme being.  The Court has never held an asserted religious belief to be non religious  for First Amendment purposes.
2.	General Conduct Regulation - No Religious Exemptions Required
The Free Exercise Clause cannot be used to challenge government regulation unless the regulation was specifically designed to interfere with religion (e.g., a law that prohibits the precise type of animal slaughter used in a ritual by a particular religious sect is not constituional).  Moreover, the Free Exercise Clause does not require religious exemptions from gnerally applicable govermnetal regulations that happen to burden religious conduct; i.e., a law that regulates the conduct of all people can be applied to prohibit the  conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.
a)	Exception - Unemployment Compensation Cases
A state cannot refuse to grant unemployment benefits to persons who quit their jobs for religious reasons (i.e., the work or conditions of work conflict with tenets of the worker’s religion).  The worker need not evene belong to a formal religious organization in such a situation, as long as the belief is sincere.
b)	Exception - Right to Amish Not to Educate Children
The Supreme Court has granted the Amish an exemption 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.	ESTABLISHMENT CLAUSE
The Establishment Clause prohibits laws respecting the establishment of religion.
1.	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.
2.	No Sect Preference
If a government regulation or action contains no sect preference, it is valid under the Establishment Clause if it:
1.	Has a secular purpose;
2.	Has aprimary effect that neither advances nor inhibits religion; and
3.	Does not produce excessive government entaglement with religion.
a)	Cases Unconnected to Financial Aid or Education
A good rule of thumb here is that a law favouring or burdneing religion or a specific religious group will be invalid (e.g., exempting certain religious groups - traditional religious - from state registration requirement), but a law favouring or burdneing a large segment of society that happens to include religious groups will be upheld (e.g., a Sunday closing law).
b)	Cases Involving Financial Benefits to Religious Institutions
The Supreme Court applies the three part test above with greater strictness when government financial aid is going to a religiously affiliated grade or high school than it does when the aid is going to another type of religious institution.
(1)	Aid to Colleges and Hospitals
Aid to colleges or hospitals will be upheld as long as the government program requires the aid to be used for nonreligious purposes and the recipient so agrees.
(2)	Aid to Grade Schools and High Schools
Aid to religious grade schools and high schools is usually found to have a secular purpose, but may fail the other parts of the test.  For example, if the aid significantly improves the ability of students to attend such schools, it will be deemed to have a primary effect that advances religion.  And if the program has detailed administrative regulations to prevent the effect of advancement of religion, the law will be stricken for excessive governmetnal entanglemetn.
c)	Religious Activies in Public Schools
School sponsored religious activity is invalid, but school accomodation of religion is valid.