Concepts in constitutional law

United States Constitutional Law is the body of law governing "the interpretation and implementation of the United States Constitution." It defines the scope and application of the terms of the Constitution and covers areas of law such as the relationship between the federal government and state governments, the rights of individuals, and other fundamental aspects of the application of government authority in the United States..

The following list of topics is provided as an overview and introduction to United States constitutional law.

Federalism and Federal Powers

Federal Courts -- an appellate decision on a mixed Federal/State matter may be held off if a state can independently decide the issue. If a state decides a state issue under both the federal and state constitutions, the Supreme Court may exercise review of the federal issues presented

Federal Courts jurisdiction -- Congress has exclusive control over the jurisdiction of the lower courts.

Supreme Court -- only Federal Court to be created by Constitution. Appellate jurisdiction of the Supreme Court is statutory, not Constitutional.

Preemption -- Federal Intent or Federal Regulation to fill the “entire sphere” of subject preempts state regulation.

Supremacy Clause -- in fields of concurrent powers, valid acts of Congress prevail over state or local actions in direct conflict

Federal Powers -- states have no power to regulate the activities of the Federal Government unless Congress consents to the regulation. Likewise, the Federal Government cannot commandeer state governments to enforce Federal laws.

District of Columbia -- Congress has exclusive power to exercise legislation concerning it

Executive agreements -- override state law, but since they are not ratified by the Senate, do not override Federal law

Foreign Affairs -- is a non-justiciable area over which the Federal Courts will not exercise jurisdiction under the doctrine of “political questions.”

War Authority -- individuals may be required to register and submit to examinations to facilitate conscription

Property Clause -- Congress has the power to make all needful rules respecting the territory or other (movable and relocatable) property of the US

Speech and Debate Clause -- (Art. I, sec. 6) absolute libel privilege

Delegation -- Congress may delegate powers to the executive branch if adequate standards are established to govern it. Congress might appoint officials to exercise the type of power it might delegate to one of its own committees, but it MAY NOT appoint members of an agency or commission with administrative powers.

Necessary and Proper -- this clause, however popular, has no inherent power; it must be linked with another clause/power to be valid

General Welfare -- While it states “tax and spend for the general welfare,“ this clause does not give Congress unfettered power to spend or impound money as it pleases. Some payments are seen as property rights and cannot be terminated at will (disability et al)

Taxing Power -- Article I, sec. 8. If Congress has no power to regulate the activity taxed, then its legitimacy depends on the tax as a revenue raising measure only

Standing -- Requires the plaintiff have an injury that will be remedied by a decision in his favor. It cannot be based on the “public welfare” at large, this must be a rectifiable injury to an “individual.” However, members of an environmental group, if they actually use a contested woodland, etc, do have standing.

Association Standing -- 1) injury in fact to members, 2) injury related to the association’s purpose, 3) neither the nature of the claim nor the relief requested requires participation of the individual members of the suit

Ripeness -- A case brought “too early.“ The Federal Courts will not hear a case unless there is an immediate threat of harm or a person has been harmed. (e.g. A suit to enjoin a law that will not take effect for 2 years is not ripe for adjudication.). The opposite of “moot,” which is a case brought too late.

Restrictions on Federal Powers

Bill of Attainder -- any form of legislative punishment of a named group or individual without judicial trial. Can be legislative punishment for party membership (Landrum-Griffin Act)

Ex Post Facto -- 1) increasing penalties for crime from the penalty in effect when the crime committed. 2) retroactive changes in evidence/procedure that operate to the disadvantage of the accused by making conviction easier

Fifth Amendment Takings -- 1) physical takings. Government regulations that grant permanent physical occupation of land is a taking (e.g. cable wires) or 2) leaving no economically reasonably viable use. Leaving land worthless. It is a question of degree, for instance, farmers complaining under the takings clause might be able to grow alternate crops, etc.

Tenth Amendment -- Federal interference with state functions unconst. However, the Fed. Govt can regulate working conditions of state and local employees. The 10th Amendment does NOT authorise plenary power to states regarding allocation of public funds, but the Tenth Amendment is the basis for the state’s power to levy ad valorem taxes

Eleventh Amendment -- a state cannot be sued in Federal Court by its own citizens, or by citizens of another state, unless it consents

Thirteenth Amendment -- applies to private conduct. Has been construed to prohibit both public and private racial discrimination in housing

Restrictions on State Powers

Privileges & Immunities -- Article IV applies to privileges of state citizens, usually important commercial activities or civil libs/fundamental rights. One state cannot discriminate between its own citizens and citizens of other states in regard to these, except where “substantial justification” arise or no less restrictive means are available. Fourteenth Amendment P&I applies to rights of national citizenship and is rare.

Residency Requirements -- look at the right being affected. Residency for indigent treatment at hospitals was found to be too great a deprivation, and also a burden on the “right to travel.”

Impairment of Contracts (state a party) -- a state may not retroactively alter a contract to which it was a party or pass legislation that reduces the contractual burden on itself. Such attempts will be met with strict scrutiny.

Impairment of Contracts (state not a party) -- generally a state police power argument will override a competing Federal contract clause argument. A state may enact legislation that impairs contracts under certain conditions (like voiding unfair real estate terms, etc)

Commerce Clause -- a state CAN burden interstate commerce if 1) the statute is reasonable and non-discriminatory upon balancing the 2) benefit to state against the burden imposed and that 3) no less restrictive alternatives to regulation are available.

Commerce Clause -- states cannot levy duties on import/exports except what is necessary for executing its inspection laws. An exception lies when imported goods are unpackaged and mingled with other goods

Commerce Clause -- states can have a “license tax” on local activities separate from the interstate commerce of which they are a part, as long as the fee is 1) non- discriminatory and 2) not too burdensome

Eminent Domain -- may be delegated directly or indirectly to a private person or enterprise subject to the requirements that the taking be 1) for a public use, and 2) just compensation given. Condemnee must be given notice and hearing. However, if property taken under “police power” of the state, then NO compensation necessary.

Due Process, Equal Protection, Free Speech, etc

Procedural Due Process -- general acts of the legislature, unlike individualized adjudication, do not give affected parties the right to a hearing

Due Process Clause of 14th Amendment -- protects personal choice in matters of marriage and family life. (it can invalidate state laws restricting grandchildren from living w/ grandparents)

Substantive Due Process -- as applied to states through the 14th Amendment usually deals with “fundamental rights,” such as voting, travel, privacy, 1st Amendment

Rights applicable to states under 14th Amendment -- 1, 4, 5, 6, 8th Amendments (no right to grand jury in criminal proceedings or any jury at all in civil)

“Reasonableness” of Speech Regulations -- Vagueness: when regulation of speech bars a substantial amount of protected speech in its legitimate scope, it is invalid. Overbreadth: if regulation bans a broad range of speech at a particular location or under particular circumstances. (like within 50 feet of a polling place, etc.)

“Speech Permits” -- allowing unfettered discretion to city officials is violative of the First Amendment. Such as those that prohibit ALL religious groups. Such are “void in its face” and therefore the speaker need not apply for it.

Prior Restraint -- the government cannot suppress or restrict speech in advance of its publication or utterance, except in serious emergencies (Nat’l security).

Rights of Press v. Rights of Accused -- “gag orders” on press issued by the criminal courts usually unconstitutional

TPM restrictions in a non-public forum -- most public property actually are non-public forums. Regulation in non-public forums must be 1) viewpoint neutral, 2) rationally related to a legitimate government interest. Advertising on city property (buses, buildings) falls under this standard, and banning picketing in front of homes is acceptable.

TPM restrictions in a public forum and designated public forums -- 1) must be content/viewpoint neutral, 2) narrowly tailored to a significant government interest, 3) leaves open alternative channels of communication

Police halting an assembly -- only when imminent violence and serious disorder must be stopped. Then the police’s first duty is to protect the speaker from the crowd. Arresting speaker first is not valid.

Restrictions on Commercial Advertising: 1) serves a substantial governmental interest, 2) directly advances that interest, 3) narrowly tailored to serve it; no more extensive than necessary. Furthermore, taxes applicable to only the press or based on the content of a publication will not be upheld

Obscenity -- standard is still the average person using contemporary community (local) standards. Some redeeming value not enough, it must have serious literary, artistic, political or scientific value.

Freedom of Speech in Solicitation -- a “balancing test” used. Weigh the rights of free speech against the state’s police power interest in protecting safety, welfare, and privacy. Measure should be reasonable and non-discriminatory and no less drastic alternates are available. (such as the requirement of homeowner’s consent on commerical door to door solicitation)

Physical Disability -- not a suspect class, have no fundamental rights.

Affirmative Action -- race based affirmative action is subject to strict scrutiny

Sex Discrimination -- the plaintiff must show discriminatory purpose not merely discriminatory effect

Right to Privacy -- generally encompasses the entire field of family relations

Equal Protection -- mere licensing by a state/local government is insufficient to constitute state action

Election Law -- Ballot restrictions based on political affiliation (“disaffiliation laws”) are subject to strict scrutiny, but ballot restrictions based on age or prohibitions against holding multiple offices are judged under the rational basis test

Discriminatory Primaries -- a state will be held responsible for a party’s racial discrimination under the 14th Amendment. Also the 15th Amendment prohibits racial discrimination in the primaries, as political party affairs that affect the general election are not simply “private clubs.”

Alienage -- Restrictions based on alienage are subject to strict scrutiny, unless where a state or local government discriminates against aliens for jobs involving “self government” issues (police, teachers, etc), then rational basis used. Congress is provided more leeway to discriminate against aliens than state governments in practice.

Establishment Clause: all three must be met 1) secular purpose, 2) no effect of advancing/inhibiting religion, 3) excessive entaglement with religion. Any federal preference for one religion over another will be reviewed under Strict scrutiny. Tax credits for parochial schools invalid even when it includes ALL private schools.

Religious Figures -- can hold government office. Not a per se violation of the establishment clause

Main Menu

See Also

Main Menu