Individual Rights- State Action: Raise the issue when it’s alleged that someone other than the

government or a government
official has deprived the plaintiff of constitutional rights. 1st amendment: Prior constraint- restricts speech b4 it occurs. Govt
must show some special societal harm and procedural safegaurds- 1. standards must be narrowly drawn, reasonable, and
definite. Injunction must promptly be sought; prompt and final determination of the validity of the restraint Vagueness-
reasonable person is not given reasonable notice of what is prohibited. Overbreath- regulates both protected and unprotected
speech/ Content regulation or content neutral- Content regulations- generally unconstitutional unless necessary to achieve a
compelling government interest. Exceptions: 1. a) incitement of illegal activity; b) speech directed to cause activity; 2. Obscenity
a) appeals to prurient interest; b) Patently offensive; c) Lacks literary, artistic, political or scientific value, using national
standard; 3. Commercial speech- a) illegal, false, and deceptive ads not protected; b) all other commercial speech regulation
subject to intermediate scrutiny; 4) defamation Content neutral regulations- time, place, manner restrictions.1) Public forum
and designated public forums a) streets, sidewalk, parks etc or place open for 1st amendment activities. b) Regulations must
be content neutral, narrowly tailored to serve an important government interest, and leave alternative places for communication.
Content-based regulations will face strict scrutiny. 2) Limited and non-public forums- regulations must be reasonable and
viewpoint neutral; 3) symbolic speech- government can regulate to serve important state interest unrelated to suppression of
message and burden no greater than necessary Religion: 1. Free Exercise Clause- 1.1 Govt may not punish, deny benefits or
impose burden on the basis of religious beliefs. a) court can examine sincerity but not truthfulness; b) if benefits created, cannot
exclude religious org solely becoz of religious reason; 1.2 Govt. cannot grant exemptions to generally applicable conduct
regulation that incidentally burdens religious practicses. 2. Estlablishment Clause: 2.1 Is the action neutral with regard to
religion? If yes, no establishement claus issue; 2.2 If not, look at history / traditions with respect to practice and understanding
of country’s founders support action. If so, likewise survives the inquiry. a. Is there a sect preference on the case of regulation?
if yes, strict scrutiny, b. longstanding monuments presumed constitutional. EP: 1. Classification or fundamental interest. 1.1
Fundamental interests, e.g 1st amendment, travel, voting- requires strict scrutiny. 1.2 Classification: suspect- race,
alienage, or national origin requires strict scrutiny. a. facially discriminatory, b. facially neutral but discriminatory impace
and intent. QS- gender and illegitimacy require intermediate scrutiny. Other classifications– wealth, age, disabiltiy, and
alienage classification related to self-government and the democratic process or congressional regulation, subject only to
rational basis test Scrutiny: SS- Compelling purpose + law necessary to achieve; IS: Important purpose + law substantially
related; RB; not rationally related + legitimate purpose. SDP- 1. Law applies to everyone; 2. Tests to apply: a. rational basis-
applies to all non-fundamental rights- typically economic and social regulations; b. strict liability- applies to all fundamental
rights. a. interstate travel, vote, privacy- contraception, marriage, procreation, child rearing: choice of private ed. and familial
relations. No rights to abortion, states can legislate. PDP-1. Opportunity to object govt action against an individual to a fair and
neutra decisionmaker; 2. deprivation of life, liberty or property (entitlement to a cont. receipt of a govt benefit; 3.must involve at
least an intentional or at least reckless govt action; 4. What process is due- balance a. importance of the individual interest; b.
ability of additional procedures to increase the accuracy of fact finding; c. govt interest.

Econ liberty: 1. Generally RB test; 2. Takings clause: govt must pat compensation when it takes private property for public use,
2.1 govt taking- possesory 2.2 regulatory taking a. deprivation of all econ value; b. decreas in econ value- usually not taking
when balance econ impact against distinct, investment-backed expectations. 3. taking for public use- govt acts out of
reasonable belief its action will benefit the public; 4. just compensation- must pay market value of what was taken, measured by
loss to owner. Federal Legislative Power Congress’s authority to act: a. express or implied authority in Constitution; b.
necessary and proper clause- any action not prohibited by the constitution to enable execution of power.
Source of power: enumerated powers: 1. commerce clause; a) channels of interstate commerce; b) instrumentalieis of
interstate commerce and persons or things in interstate commerce; c) Economic activities that have a substantial effect on
interstate commerce (non-econmic activity- its substantial effect cannot be based on cumulative impact). 2. Taxing and
spending: congress may tax and spend for the general welfare and may enact any tax to raise revenue for the general welfare.
3. Property- Congress may dispose and make rules regarding territories and property of the US; 4. Citizenship- congress power
is plenary; 5. War Limitation of power by 10th amendment- all powers not granted to the US, nor prohibited to the states, are
reserved to the states or to the people
a. congress cannot compel state regulatory or legislative action but can induce state government action by putting
strings on grants unless unduly coercive;
b. Congress may prohibit harmful commercial activity by state govts.
Federalism: 1. Preemption- the Supremacy Clause provides that the Constitution, and laws and treaty a. express preemption-
expressly says federal law is exclusive in that area; b. implied preemption- mutually exclusive, federal law preempts; c. state
law impedes, federal preempts; d. congress evidences a clear intent to preempt the field, federal preempts Dormant
Commerce Clause: Negative implication of the commerce clause. a) state law discriminates against out–of-state competition
is invalid unless: 1. the law furthers an important, noneconomic state interest and there are no reasonable nondiscriminatory
alternative; 2. state as market participant; 3.govt action involving traditional govt function. b) burden interstate commerce 1.
invalid unless the state’s interest in the regulation outweighs the burden; 2. does not burden, then OK. P&I clause Article IV:
state law that deny out-of-state persons privileges and immunities accorded to in-state persons violates the provision.
a. if the state law discriminates against out-of-state with regard to civil liberties or important economic activities, the govt
can show nonresidents are at least part of the problem the govt is attempting to solve and there are no less restrictive
means;
b. law does not discriminate, OK
P or I 14th amendment- prohibits from denying their own citizens rights of n’tl citizenship- used recently to prohibit
discrimination against new residents fro violating the rights to travel.
Moot: A real controversy must exist at all stages of review. If the matter has already been resolve, case will be dismissed as
moot unless controversy is capable of repetition yet evading review. Note that a class representative in a class action may
continue even though her particular claim has become moot as longas others are valid.
Standing: 1) Individual- 1.1 personal injury in fact; 1.2 causation between conduct and the injury, and 1.3 redressability. 2)
Associational or organsational standing requires a. individual members have standing; b. interests germane to organsiation’s
propose; 3) individual members’ participation in the lawsuit not required.