Perspective 43 results (showing 5 best matches)
- For many years there was a dearth of constitutional law treatises particularly for students. This was partially because the Warren Court so rapidly changed our understanding of constitutional law. The law in this area, therefore, was thought to be too much in flux to warrant any easy summary. To a considerable extent, in the past few years this situation has altered. Recent books which can provide you a crisp and accurate summary of basic principles are the treatises,
- We have spoken about the role of case law and of how carefully it should be approached and studied in constitutional law courses. What about the constitutional text itself? There was a great constitutional law teacher at Harvard several generations ago named T. R. Powell. The story goes that Professor Powell used to tell his classes that they need not bother to read the Constitution because they would only find it distracting. This was Professor Powell’s mischievous way of telling his students that the overlay of case law on the constitutional law text is truly significant and that the constitutional document is continually interpreted by each new generation of Americans through the doctrine of judicial review.
- Alexis deTocqueville wrote, more than a century ago, that in America every question ultimately becomes a constitutional question. With the expanded role of the Supreme Court, this is particularly true. More and more legal questions have a constitutional dimension. The course in constitutional law, like all courses in law school, is, to some extent, a course in a new vocabulary. Phrases that pepper the case law in the fields of free expression and equal protection will become second nature to you. You will find yourself talking easily about standards of review, about the differences among the rational basis standard of review, the intermediate standard of review, and the strict scrutiny standard of review. These are standards of review that have distinct meanings in constitutional law. In the free expression area, terms like content-based and content-neutral regulation, categories of speech, the public forum, the public law of libel, the distinction between political speech and...
- Because the course in constitutional law is so fundamental, the student’s approach to study in constitutional law must be somewhat different than in other courses. In a course in torts or in contracts, the names of particular cases may not be especially important. Abiding principles may emerge in those fields of law. But the particular names of the plaintiffs and defendants who gave play to those principles usually are not particularly significant. This is not so in constitutional law.
- If the case law is important in constitutional law, how should one approach those cases? The short answer to this question is—slowly. A case like cannot be read quickly. Embedded in the magisterial prose of Chief Justice Marshall, one will find condensed the substance of controversies about the role of the Judiciary vis-a-vis the Executive and the Congress, which still absorb us as a people. A student in constitutional law will often say that it took her an hour or two to read ten pages. In the early period of a course in constitutional law, this should be considered standard rather than remarkable. It should take you an hour or an hour and a half to read the edited version of that is found in most contemporary constitutional law casebooks. In the formative constitutional law cases, you are reading about fundamental and enduring
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Appendix A. Answers to Review Questions 101 results (showing 5 best matches)
- Laws burdening the rights of association and belief are constitutional, if reasonable, which is determined by a balancing test. Restraints on group membership (answer a) are valid if limited to active membership which requires knowledge of the organization’s illegal objectives (scienter) and specific intent to further those illegal objectives. Forced disclosure of a group’s membership lists may be constitutional if the government’s interests in a narrowly tailored law are sufficiently compelling. Even loyalty oaths probing an individual’s associations may be constitutional if vagueness and overbreadth are avoided.
- Social and economic regulatory and tax legislation which does not significantly interfere with fundamental constitutional rights is reviewed under the traditional rational basis test. The law is presumed constitutional and the burden is on the challenging party to establish that it is arbitrary and irrational. This burden is essentially insurmountable.
- Even if a showing of discriminatory state purpose is required to establish a Fourteenth or Fifteenth Amendment violation, Congress, in the exercise of its enforcement powers, can legislate against discriminatory impact. As long as the law is a reasonable means of implementing the constitutional guarantee in the Amendment, it is constitutional.
- A law is generally constitutional under the Equal Protection Clause if the classification is rationally related to a permissible government interest. In the present case, however, the recipient would claim that the burden of the law impacts more severely on blacks and that such a racial classification must be shown to be necessary to a compelling government interest. However, a disproportionate racial impact is insufficient to trigger this strict scrutiny standard. Only if it is shown that the law was born of a purpose to racially discriminate will the Court depart from rationality review. The recipient would also claim that the law’s classification significantly burdens the fundamental right of privacy. If this allegation is established, the state would be required to prove that the classification is necessary to a compelling governmental objective. It is doubtful that the state interest in curtailing welfare costs or discouraging illegitimacy would support the law. If the...
- When a law aids or advances only selected religions, rather than religions generally, , it grants denominational preferences, the law is suspect and must meet the rigorous strict scrutiny standard. Only if the law is necessary to a compelling government interest is it constitutional.
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VIII. Freedom of Expression 158 results (showing 5 best matches)
- significant amount of protected speech will be burdened and the potential constitutional applications of the law. (1973) (state law restricting political activities of state employees held constitutional); (1982) (child pornography law held constitutional);
- Throughout your review of First Amendment law, keep in mind that a law may be attacked as facially invalid or invalid as applied given the facts in the particular case. If the language of a law is unconstitutionally vague or overbroad on its face, the fact that it is applied in a narrow, constitutional manner will not save the law. And even a precise, narrowly drawn law can be applied in a sweeping unconstitutional way in a particular case.
- b. State laws significantly burdening the ability of a political party to select their candidate are subject to strict scrutiny. Laws imposing a lesser burden on associational rights are constitutional if they are reasonable.
- A municipal park ordinance requiring a permit before conducting large scale events or engaging in activities involving sound amplification is constitutional. The law provides 13 specified grounds for denial of the permit, none of which has anything to do with what a speaker might say. The law is not directed at communicative activity as such but to all park activity. Facially the law provides narrowly drawn, reasonable and definite standards guiding discretion.
- (5) Provisions of Massachusetts law regulating advertising of smokeless tobacco or cigars, which were designed to protect minors, were held unconstitutional. The law prohibited such outdoor advertising within 1000 feet of schools or playgrounds and prohibited such indoor advertising if placed lower than five feet from the floor. The prohibitions, while directly advancing the government interest, were not narrowly tailored given their broad geographic sweep and the range of communications restricted. The height restrictions did not directly advance the government interest given the varying height of children and their ability to look up. Nor were the restrictions narrowly tailored. Another provision banning self-service displays was held constitutional under . The Court did not reach the constitutional issues raised by state provisions regulating cigarette advertising since such regulation was preempted by federal law.
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II. National Legislative Powers 60 results (showing 5 best matches)
- A taxing measure with the characteristics of regulation and punishment must be judged as a penalty, and not a tax. Note that the law may still be constitutional as a means of achieving one or more of the regulatory powers, under the Commerce Clause. The constitutional problem arises only where Congress does not have power to regulate the activity that is taxed.
- Art. VI, cl. 2, provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary not withstanding.” Under this critical clause, a constitutional exercise of the national legislative power can operate to override contrary state law. See Ch. III, A, 4.
- In analyzing the constitutionality of federal statutes, always ask two questions: (1) Is there a constitutional source of power and, if so, (2) is there a constitutional limitation on the exercise of the power? Remember, limitations on the exercise of government power include both constitutional rights and liberties and the constitutional distribution of powers (
- The provision of the Brady Act, commanding state and local law enforcement officers to conduct background checks on prospective handgun purchasers, was held unconstitutional 5–4. Absent controlling constitutional text, the Court based its conclusion on historical understanding and practice, the structure of the Constitution, and on the jurisprudence of the Court.
- (2) A private residence could not be construed to be “currently involved in interstate commerce” in applying the federal arson statute. A broad interpretation of the arson law would make almost every building in the country susceptible to coverage which was not likely the intent of Congress and would raise severe constitutional issues.
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III. State Power in American Federalism 69 results (showing 5 best matches)
- While the national government can exercise only such powers as are expressly or impliedly delegated in the Constitution, states have inherent police power to act for the health, morals, and well-being of their citizens. When dealing with the constitutionality of state laws, therefore, the student should focus on constitutional limitations on state power. Such limitations may take the form of constitutional rights and liberties or limitations arising from the constitutional allocation of powers. The focus of this Chapter is on federalist values reflected in the Division of Powers principle.
- (4) A Maine criminal statute banning the importation of live baitfish from out-of-state is constitutional. The district court finding that the law served the state’s important interest in protecting the integrity of its natural resources and that alternative means would not adequately serve that interest was not “clearly erroneous.” The law was not deemed economic protectionism.
- During the 1973 oil embargo, the state of West Lincoln conducted a study which showed that gasoline stations operated by producers or refiners received preferential treatment in terms of oil supplies during this scarcity. As a result, the West Lincoln legislature enacted a law which prohibits producers or refiners from operating retail service stations within West Lincoln. Furthermore, producers or refiners now are required in West Lincoln to extend all “voluntary allowances” uniformly to all stations that are supplied. Colossal Oil Company, one of the nation’s largest producers and refiners, has brought suit in the federal district court in West Lincoln on the ground that the state law is unreasonable and will frustrate rather than enhance competition. Colossal Oil also argued that the West Lincoln scheme discriminated against out-of-state competitors in favor of in-state independent dealers, since the burden of the legislation fell on interstate companies which will have to...
- Some constitutional powers are exclusively national, the power to declare war or to legislate for the District of Columbia. Other powers are shared by both the states and the federal government. If the power is concurrent, in some instances, where Congress has not acted to exclude the states, the states may regulate even though Congress, if it chose, could also legislate in the same area. In other instances, however, where Congress could act, the particular state regulation is proscribed by the constitutional grant of power to Congress.
- Even a state tax nominally imposed on the “privilege of doing business” which is applied to the taxpayer doing interstate business may be constitutional if it satisfies the
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I. Judicial Review 79 results (showing 5 best matches)
- A course on American constitutional law deals primarily with the exercise of the power of judicial review. But before a court can review government action on its constitutional merits, the court must have jurisdiction, , power to hear the case. Even when a court has technical jurisdiction to decide a case, there are various policies and principles whereby final decision can be avoided, at least temporarily. This chapter deals with the jurisdiction of the federal courts, including the power of judicial review, and the constitutional, congressional and self-imposed limitations on the exercise of that judicial power.
- When the state courts decide federal constitutional questions, the Supreme Court has appellate jurisdiction under Art. III, § 2, over such decisions. A principal policy justification for extending Supreme Court appellate jurisdiction to the federal constitutional decisions of state courts is the need for uniformity in federal constitutional interpretation.
- There are a number of specific doctrines, based on the case and controversy requirement and policy considerations, through which the federal courts avoid a decision on the merits. They relate to WHO may litigate a constitutional question, WHEN a constitutional issue may be litigated, and WHAT constitutional questions may be litigated.
- : Federal taxpayer status may be a basis for Art. III standing if the taxpayer can satisfy a two-part test: (1) the taxpayer must be challenging an exercise of Congress’ Art. I, § 8 taxing and spending power; and, (2) the enactment must be alleged to offend a specific constitutional limitation on the taxing and spending power. , the taxpayer challenged a federal spending law as violative of the Establishment Clause of the First Amendment which limits government spending in support of religion. While has not been overruled, it has been confined to its facts. It is unlikely today, in light of the citizen standing cases cited below, any other constitutional claim will satisfy the
- might have been limited to acts of Congress dealing with federal court jurisdiction or to cases where judicial action is necessary to give effect to congressional legislation. Instead, it has come to stand for the broad proposition “that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been * * * a permanent and indispensable feature of our constitutional system.”
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Appendix C. Glossary 76 results (showing 5 best matches)
- Art. I, § 8, states: “The Congress shall have Power * * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] powers, and all other Powers vested by this Constitution in the Government of the United States.” In its historic discussion of implied powers in (1819), the Court gave the Clause a broad interpretation: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.” If the law is reasonably designed to effectuate an express constitutional power, it is constitutional in the absence of some other constitutional violation.
- The President impounds funds when he withholds or delays the expenditure of congressionally appropriated funds. Whether this is a constitutional exercise of the executive power to execute the laws ( budget limits) or in an intrusion on the legislative power to make the laws, has not been finally decided.
- Executive Agreements are agreements entered into by the Executive with foreign powers. They do not require Senate concurrence. Executive Agreements prevail over contrary state law. Even though there is no express constitutional authority for such agreements, their constitutional validity has been long established.
- While the minor female has a right to privacy, extending to abortion, the state has a greater interest in regulating the abortion of minors. Parental notification and consent laws are constitutional if narrowly drawn and if they include a judicial bypass provision.
- Race-based affirmative action is constitutional only if the law satisfies strict scrutiny,
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IX. Freedom of Religion 76 results (showing 5 best matches)
- (3) A state law prohibiting clergymen from being delegates to the state constitutional convention violates the free exercise guarantee. Treating the law as directed at conduct rather than beliefs, the Court still found no state interest of sufficient magnitude to justify the significant burden on religion.
- The free exercise guarantee is not violated by a generally applicable and otherwise constitutional criminal law which has the incidental effect of prohibiting a religious practice. Such religion-neutral laws are presumptively valid; strict scrutiny does not apply. This principle applies even if the proscribed practice is central to a religion. However, if a law which imposes a substantial burden on religion is not generally applicable and neutral, strict scrutiny does apply.
- A law providing more favorable treatment for traditional religions with a large, established membership is probably constitutional.
- Employment Div., Dept. of Human Resources of Oregon v. Smith (1990), discussed below, indicates that benefits can be denied if the denial is only the incidental effect of applying a generally applicable and otherwise valid criminal law. Since prohibition of the religious practice is constitutional, imposition of the lesser burden of denying unemployment benefits to persons engaging in the proscribed conduct is constitutional.
- (2) A state law permitting taxpayers to deduct certain educational expenses is constitutional. Assuring a well-educated citizenry is the secular purpose of the law and the legislature could conclude that assuring the financial health of private schools serves that end to the benefit of taxpayers generally. Nor does the aid have a primary effect of advancing the sectarian aims of the private schools. Education is only one of the many deductions allowed, encouraging desirable expenditures. “Most importantly, the deduction is available for educational expenses incurred by Further, “by channeling whatever assistance it may provide to parochial schools through individual parents, [the state] has reduced the Establishment Clause objectives. * * *” The Court rejected the usefulness of statistical evidence indicating that the law primarily benefits religious institutions.
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Capsule Summary of Constitutional Law 157 results (showing 5 best matches)
- Art. IV, cl. 2 establishes that national laws that are constitutional override contrary state laws.
- It has not yet been decided whether a President’s withholding or delay in expending appropriations is a constitutional exercise of the Executive power to faithfully execute the laws or an unconstitutional interference in Congress’s law-making power.
- are made by the President with the advice and consent of two-thirds of the Senators present. They prevail over state law but are subject to constitutional limitations. But a treaty is not binding domestic law unless Congress enacts implementing legislation or the treaty is self-executing. The President cannot unilaterally make treaties binding domestically.
- The question of what process is due is a matter of federal constitutional law for the courts. It is not determined by state law. In determining what procedures are required to assure due process, courts balance the competing interests, usually considering three factors:
- Congress cannot violate other constitutional provisions in exercising its enforcement powers. The Tenth Amendment, however, does not limit Congress’ powers under the Fourteenth Amendment, § 5. Congress can abrogate state sovereign immunity only if the law is congruent and proportional to the state’s constitutional violation. Such a law is more likely to be upheld in situations where the state would be subject to more demanding standards of judicial review than rationality review.
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IV. Congress and Executive Power 44 results (showing 5 best matches)
- Congressional legislation, which would not be constitutional otherwise, is constitutional when it reasonably implements a treaty. Some treaties are self-executing and do not require congressional implementing legislation. A treaty which is NOT self-executing does not preempt state law. And a presidential order, absent implementing legislation, has no authority to establish binding rules of decision that preempt contrary state law. See
- The provision of the Ethics in Government Act that the Attorney General can remove an independent counsel only for good cause is not of such a nature as to interfere impermissibly with the President’s constitutional obligation to ensure the faithful execution of the laws. Law enforcement functions are executive functions. But the President’s need to control the exercise of discretion of the independent counsel, an “inferior official” with limited jurisdiction, tenure and power, is not so central to the functioning of the Executive Branch as to require as a matter of constitutional law that counsel be terminable at will by the President. Counsel can still be removed for misconduct. Independence could be achieved only by limiting the removal power. Congress has not sought to usurp any added role in the removal of executive officials.
- It is argued that such impoundment is justified by statutorily-imposed budgetary constraints in the light of the constitutional mandate that the President should faithfully execute the laws and by the Vestiture Clause.
- Most of the express executive powers are vague and lie in areas where power is shared with Congress. What happens when the executive and congressional actions come into conflict? In the past, the tide of power has tended to flow to the Executive. But Congress has been trying to stem the tide by enacting laws which at least ostensibly seek to promote Executive responsibility and accountability.
- Art. VI provides that all treaties which are made “under the authority of the United States” are the supreme law of the land. They prevail, as do Executive Agreements, over inconsistent state law. Treaties and Executive Agreements are subject to constitutional limitations.
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VII. Equal Protection 98 results (showing 5 best matches)
- (1) The fact that blacks are four times as likely as whites to fail a police qualifying test does not establish an equal protection violation. Discriminatory impact, standing alone, does not trigger strict constitutional review. Such a rule would have far-reaching effects, raising serious questions concerning the constitutional validity of a whole range of laws. Racially discriminatory purpose must be shown to justify strict scrutiny under the Equal Protection Clause.
- (1) A state law granting a property tax exemption to female widows but not male widowers is constitutional given a lone woman’s greater financial difficulty.
- Anti–Busing Laws.
- (2) A state law providing that illegitimate children can inherit by intestate succession only if a court of competent jurisdiction has, during the lifetime of the father, made a finding of paternity is constitutional. The burden placed on illegitimates substantially furthers the important state interest in assuming the just and orderly disposition of property at death. The law aids in the difficult task of establishing paternity.
- person’s immigration status with the Federal Government “if reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Various limitations are provided. The United States had brought suit before the law had gone into effect and before it had been interpreted by state courts. Justice Kennedy reasoned that, under these circumstances, it would be inappropriate to assume that the provision would be implemented in a way that creates a conflict with federal law. He said: “The opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
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V. Perspectives 15 results (showing 5 best matches)
- Despite some contrary judicial opinion in the early years of the Republic, the claim that there are extra-constitutional “natural rights” limiting governmental power has generally not been accepted by the courts. If the federal government exercises one of its delegated powers or the states exercise their reserved powers, some express or implied constitutional, statutory, or common law limitation must be found if the government action is to be successfully challenged.
- reflected federalism values in rejecting the view that the Privileges or Immunities Clause was intended to make all the fundamental rights traditionally protected by state law into federal constitutional rights which could be protected in federal court.
- e. Justice Breyer, joined by all of the other dissenting justices, wrote a separate dissenting opinion. He agreed with Justice Stevens “that the Second Amendment protects militia-related, not self-defense-related interests.” But he also argued that the Court failed to show that the District’s gun control law “is unreasonable or inappropriate in Second Amendment terms.” The DC law would be constitutional under the rational basis standard of review. Justice Breyer would adopt an “interest-balancing inquiry,” given that the law “implicates competing constitutionally protected interests in complex ways.” He argues that the DC handguns control law is “a proportionate, not a disproportionate, response to the compelling concern that led the District to adopt it.”
- b. During the debates over ratification, Federalists argued that since this is a government of limited power, no specification of rights was necessary. Further, they argued that inclusion of some rights might be used to deny other rights not enumerated or provide a basis for the federal government claiming powers beyond those delegated. Efforts to include a Bill of Rights were defeated at the Constitutional Convention.
- of life, liberty, or property without due process of law or of equal protection of the laws.
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Title Page 3 results
VI. Due Process of Law 115 results (showing 5 best matches)
- A reasonable law will generally be constitutional even if it retroactively impairs private contract relationships.
- Which of the following sodomy laws would be most likely to survive a constitutional challenge?
- Which of the following abortion laws would be likely to survive constitutional challenge?
- RATIONAL BASIS. Today, social and economic regulatory and tax legislation which does not interfere with fundamental rights will not be closely scrutinized by the federal courts. If there is any rational basis that the legislature might have had for concluding that the legislation would further permissible legislative objectives, it will be sustained. The law must not be arbitrary or irrational. But the law is presumed to be constitutional and the burden of proving that the law is irrational is on the challenging party. This burden is essentially insurmountable and no economic legislation has been held unconstitutional by the Court, using this rationality test, since the New Deal.
- (1) The federal Price Anderson Act setting maximum limits on tort liability for nuclear power plant accidents is constitutional. The law is rationally designed to promote nuclear power development while providing a fair and adequate basis for recovery. Any dollar ceiling is necessarily an arbitrary determination.
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VIII. Freedom of Expression Part 2 71 results (showing 5 best matches)
- There is no constitutional bar to the inclusion of substantive obscenity offenses under a state criminal RICO law.
- , the Court stated: “Conduct must be specifically defined by the applicable state law, as written or authoritatively construed, to make obscenity regulation constitutional.” In fact, the courts often construe the obscenity laws to embody the obscenity standards and specific types of acts set forth in
- (1) A New York criminal statute prohibiting persons from knowingly promoting sexual performances by children under the age of 16 by distributing such material is constitutional. The state has a compelling interest in protecting minors; distribution of such visual material is intrinsically related to production involving sexual abuse of children; the economic benefits from distribution stimulate production of the materials; such productions have minimal constitutional value. The Court did limit its decision to live performances or visual reproduction of live performances, , production involving child actors. Since the New York law was not “substantially overbroad,” it was not facially unconstitutional. The Court did not decide if “socially valuable” works are constitutionally protected.
- (2) An Ohio statute which criminalized possession of any material depicting a nude minor, except under a number of limited circumstances and for proper purposes was found constitutional. The statute itself was not unconstitutionally overbroad, because the construction of the statute by the Ohio Supreme Court narrowly limited application of the law to lewd displays of nudity where such nudity involves a lewd exhibition or involves a graphic focus on genitals, and not merely nudity. The law was also read to include a requirement of scienter. However, since it was unclear that the jury had been properly instructed on the elements of the offense as due process requires, the conviction was reversed and the case remanded.
- (4) Congress engaged in impermissible viewpoint restriction when it prohibited lawyers for legal services organizations receiving federal funds from assisting clients in challenging the validity of existing state and federal welfare laws. The restriction prevented LSC attorneys from arguing that any state or federal welfare law was invalid or should be amended and required attorneys to withdraw from representation when the validity of a constitutional or statutory challenge became apparent. The Court distinguished the case from government speech cases like the functioning of the judiciary.” The restriction distorted the role of the attorney, whose professional mission was to present all the reasonable and well-grounded arguments necessary for proper resolution of the case, and threatened severe impairment of the judicial function by insulating certain laws from judicial inquiry.
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Summary of Contents 5 results
Appendix B. Practice Examination 44 results (showing 5 best matches)
- Critics of the proposed legislation claim that Congress lacks constitutional power to enact either law and that either measure would violate the powers reserved to the states under the Tenth Amendment. Discuss the merits of these claims.
- Discuss the issues raised by the constitutional challenge to Ohio’s hospitalization law.
- Erotica will argue that the Hustler ordinance violates freedom of speech protected by the First and Fourteenth Amendments. While obscene publications are not part of the “freedom of speech” protected by the Constitution, the First Amendment does protect sexually offensive and indecent adult materials and businesses that deal in such materials. This constitutional protection applies to both criminal and civil regulation, the zoning law involved in the present case. While a plurality of the Court has asserted that indecent and offensive speech enjoys a lesser degree of constitutional protection than other fully-protected speech,
- The claim that Congress lacks constitutional power to enact DDRA should be rejected. The Commerce Clause provides a plenary source of constitutional power to regulate driving in interstate commerce, including the power to limit or exclude such commerce. This regulatory power to define the substantive conditions under which interstate commerce shall occur is complete in itself, subject only to the limitations of the Constitution.
- test, asking whether the law furthers an important or substantial governmental interest unrelated to the restriction of free expression and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. This does not require the state to adopt the least burdensome alternative. If the law directly and effectively furthers its legitimate objective, it is constitutional. Further, courts have traditionally extended presumptive validity to a city’s use of its zoning powers.
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Table of Contents 27 results (showing 5 best matches)
X. State Action 22 results (showing 5 best matches)
- (2) Action by Amtrak in rejecting displays for its billboards is subject to First Amendment review. Amtrak is an agency or instrumentality of the United States for constitutional purposes. “[W]here, as here, government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.”
- (1) Invocation of state prejudgment attachment proceedings by a private party, whereby the county sheriff executes a writ of attachment issued by the clerk of the state court, constitutes state action. The constitutional challenge was to the state law creating the attachment proceeding thus satisfying the first test. The private party’s joint participation with state officials in the seizure of the disputed property was sufficient to make the private party a “state action” under the second test.
- The mechanism that makes most constitutional guarantees operative is state action. In the Civil Rights Cases of 1883, the Court delimited the significance of state action under the Fourteenth Amendment: “Individual invasion of individual rights is not the subject matter of the Amendment.” In other words, private discrimination against other individuals with respect to jobs, housing, and services are not a constitutional (as distinguished from a statutory) matter reached by the Fourteenth Amendment. This is equally true of most rights and liberties protected by the Constitution—it is government wrongdoing that provides the subject matter for constitutional judicial review. In applying the state action requirement, the Court has described it as preservative of personal liberty, federalism and separation of powers.
- ’s two-part test is satisfied. First, peremptory challenges are authorized by state law. Second, government officials engage in “overt, significant participation” in the system of peremptory and administers the use of peremptory challenges. When private parties are given power to select the members of a governmental body, “the private body will be bound by the constitutional mandate of race-neutrality.” Finally, the government makes the injury move severe by permitting it to occur in the courthouse.
- In the fairly recent past, efforts were made, with some success, to have the Court view private action as quasi-public and therefore subject to constitutional standards. Thus, where a private activity fulfills a public function or where the state involvement and the private involvement were intertwined, the Court has been willing to categorize an entire activity as the equivalent of state action.
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XI. Congressional Legislation in Aid of Civil Rights and Liberties 30 results (showing 5 best matches)
- (1) State employees may recover money damages based on a state’s failure to comply with the Family and Medical Leave Act. The Act allows eligible employees, both men and women, to take up to twelve weeks of unpaid leave for certain reasons, including care of the employee’s spouse. Congress was within its § 5 authority to abrogate state immunity under the Act as a means of remedying and deterring gender-based discrimination, even though it includes in the proscription conduct which is facially constitutional. Intentional gender-based discrimination is subject to heightened review under equal protection and it is therefore easier for Congress to show a pattern of state constitutional violations. Congress had significant evidence of extensive state gender-based discrimination in leave benefits. The Act was congruent and proportional ...through another statute (Title VII) and the present Act was a narrower intrusion on state sovereignty than previous laws held...
- RFRA is not a proper enforcement measure under the Fourteenth Amendment, § 5 since it is out of proportion to any supposed remedial or preventive objective. It attempts a substantive change in constitutional rights. While preventive rules designed to deter unconstitutional state action can be appropriate remedial measures, RFRA goes too far since it is not limited to state laws likely to be held unconstitutional when challenged because of their treatment of religion. The broad coverage of RFRA ensures its intrusion on a host of official actions at every level of state and local government. There would be extensive litigation and many general regulatory laws would fail under the strict scrutiny review mandated by RFRA, including the least restrictive means requirement. “Remedial legislation under § 5 ‘should be adapted to the mischief and wrong which the [Fourteenth] [A]mendment was intended to provide against’.”
- (2) A provision of the 1970 federal Voting Rights Act eliminating the use of state residency requirements in presidential and vice-presidential elections is constitutional since the imposition of durational residency requirements unreasonably burdens the privilege of taking up residence in another state. The constitutional authorization for the legislation in this regard was based on the power of Congress to protect the privileges of federal citizenship without reference to § 5 of the Fourteenth Amendment despite the availability of that source of legislative power.
- certainly can enact legislation enforcing the constitutional right to the free exercise of religion * * * Congress does not enforce a constitutional right by changing what the right is.” Even the dissenting justices did not reject the principle that Congress’ enforcement power under the Fourteenth Amendment is remedial, not substantive. The Court did not reach the constitutionality of RFRA as it applies to federal action.
- Section 2 of the Fifteenth Amendment gives Congress the power to enforce this article by appropriate legislation. Any legislation which Congress could rationally conclude is appropriate to effectuate the constitutional prohibition against racial discrimination in voting is a constitutional exercise of Congress’ power under the Fifteenth Amendment, § 2.
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Appendix E. Index 125 results (showing 5 best matches)
Preface 5 results
- This “Black Letter” is designed to help a law student recognize and understand the basic principles and issues of law covered in a law school course. It can be used both as a study aid when preparing for classes and as a review of the subject matter when studying for an examination.
- The law is succinctly stated by the authors of this “Black Letter.” In addition, the exceptions to the rules are stated in the text. The rules and exceptions have purposely been condensed to facilitate quick and easy recollection. For an in-depth study of a point of law, citations to major student texts are given.
- Each “Black Letter” is written by experienced law school teachers who are recognized national authorities on the subject covered.
- This feature is designed to illustrate, through fact situations, the law just stated. This, we believe, should help you analytically approach a question on the examination.
- We believe that the materials in this “Black Letter” will facilitate your study of a law school course and assure success in writing examinations not only for the course but for the bar examination. We wish you success.
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Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Dean and Professor of Law, Stanford Law School
- Professor of Law, Yale Law School
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Copyright Page 1 result
- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: June 20th, 2013
- ISBN: 9780314281937
- Subject: Constitutional Law
- Series: Black Letter Outlines
- Type: Outlines
- Description: Black Letter outlines are designed to help law students recognize and understand the basic principles and issues of law covered in law school courses. Black Letter outlines can be used both as a study aid when preparing for classes and as a review of the subject matter when studying for an examination. Each Black Letter outline is written by experienced law school professors who are recognized national authorities in their subject areas.