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Constitutional Law I
University of Kansas School of Law
Stacy, Thomas G.

CONLAW OUTLINE FOR EXAM FALL 2008
In each question identify issues:
1.      Federalism
a.       Congress (federal) Art. 1, § 8 (Do they have legislative authority to regulate? Is it w/in their power?)
b.      State – police power – Art.1 §10 limits – NO coining $, keeping troops during peace, imposing duties on goods, etc.
c.       Supremacy Clause – fed law(if valid) trumps conflicting state law
2.      Separation of Powers
a.       Allocation of authority
3.      Individual Rights
a.       Bill of Rights constrains fed govt
b.      14th Amend constrains state govt
                                                              i.      Equal protection clause of 14th applies to states
                                                            ii.      Incorporation – 5th incorporates 14th’s Equal protection clause
1.      State govt can sensor newspapers
                                                          iii.      Reverse Incorp –
1.      Fed govt discriminates based on race
JUDICIAL REVIEW:
1.      Marbury/Madison – SCOTUS is the ultimate arbiter of the C’s meaning. SCOTUS has authority to decide the C’s meaning in cases properly before it and those decisions prevail in event of disagreement between Fed Exec or Leg branches.
a.       Political Question Doctrine – Exception to general rule of judicial review. “Nonjusticiable political questions” – although C speaks to the matter and its meaning is contested, the resolution of that meaning is left to the political branches of govt, not the Ct. Ct will defer to decision of Congress and Pres in these matters.
2.      Martin/Hunter’s Lessee – SCOTUS has power to review state ct decisions dealing with federal issues. State Sup. Ct. has power to review issues for constitutionality. SCOTUS may have appellate jx even though no original jx.
3.      STANDARDS OF REVIEW:
a.      Conclusive Invalidity – Ct decides that the C prohibits something regardless of countervailing arguments.
                                                              i.      US v. NY Times –Ct recognized prior restraint on political speech was justifiable in exceptional circumstances.
b.      Strict Scrutiny – Treats challenged govt reg as presumptively invalid. Regulation will be held invalid unless it the least restrictive means of advancing a compelling govt interest.
                                                              i.      Use if: Intentional govt disc based on race (equal protection), viewpt disc against speech (free speech), & state reg that on its face treats interstate commerce different from intrastate commerce (federalism: Commerce Clause).
                                                            ii.      Compelling Govt Interest – lawful & compelling end. Objective must be VERY important.
                                                          iii.      Means/end fit: The reg will flunk if there is some other reg means that will as effectively advance the govt’s reg objective but not impair the C value at stake (free speech, flow of interstate commerce, etc.) to the same degree. No deference to govt view. Must be perfect fit between objective and means to advance it.
c.       Intermediate Standard of Review – govt reg must be substantially related to an important govt interest. Aimed at C protected rights which are not as fundamental as those evaluated by Strict Scrutiny.
                                                              i.      Use if: Intentional govt disc based on gender (equal protection), state reg that burdens interstate commerce but does not facially disc against it (federalism: Commerce Clause), & content-neutral time, place & manner restrictions on speech (free speech).
                                                            ii.      Important Govt Interest – objective does not have to be compelling, but must be more than just legit.
                                                          iii.      Means/End fit – reg means must be “substantially related” to its reg objective. Does not have to be the least restrictive alternative. Govt has differing degrees of deference in different contexts. End must be more than just lawful, but can be less than compelling.
d.      Rational Basis Test – govt reg must be rationally related to a legit govt end.
                                                              i.      Use if – intentional disc of nonsuspect class (like optometrists must be licensed, equal protection), govt imposed burdens on nonfundamental rights (driving over 75 mph, substantive due process), limited public forum (limiting oral argument to 10 min per side) & fed legislation reg intrastate commerce (federalism: Commerce Clause).
                                                            ii.      Govt End – Objective only needs to be legit (lawful). Govt gets great deference. Govt doesn’t need to show they had the reg objective in mind when it acted. Sufficient to show that objective could explain th

apply to the states through the 14th.
d.      Reverse Incorporation – Bolling/Sharpe – 5th DP does not contain EP clause, but disc may be so unjustifiable as to violate due process.
2.      Freedom of Speech
a.       McIntyre/Ohio – Ct relied on Founders’ acceptance of speaker anonymity in invalidating an Ohio law that prohibited circulation of anonymous leaflets in connection with political campaigns.
b.      NY Times/Sullivan – Ct held 1st Amendment substantially limits doctrines of defamation and libel law that Founders’ apparently accepted.
c.       Purposes of 1st Amend influencing it’s meaning:
                                                              i.      Free Marketplace of Ideas/Search for Truth – aim of 1st is to facilitate search for truth by creating free marketplace for ideas.
1.      Speech – communication connected with the truth (political speech & science).
2.      Falsity – with falsity, truth is better defined.
3.      Abridgement
                                                            ii.      Political Democrary – speech functions to facilitate the effective operation of political democracy. Representative govt cannot function effectively unless citizens have freedom to applaud & condemn their govt & policies.
1.      Speech – discussion of political candidates, govt policies, public issues is protected. Art, music & science if it has political content.
                                                          iii.      Individual Autonomy – aims to promote self fulfillment through expression and/or to enable ind a greater degree of control over their lives.
1.      Speech – political speech, commercial speech, art, music, science & obscenity, even conduct.
                                                          iv.      Govt Incompetence rationale – govt is prone to error regarding speech.
d.      Sedition Act – you can say what you want but this could create criminal liability. OK bc you can use truth as a defense.