Con Tests

Question 1

Privileges AND Immunities

Answer 1

Discriminating against out-of-state citizens re: fundamental rights.
- Usually employment

Government must have substantial justification and no less restrictive means.

Question 2

Contract Clause

Answer 2

State cannot substantially interfere with a pre-existing contract unless:

1. It has an important and legitimate interest; and
2. It’s narrowly tailored to that end

Question 3

Dormant Commerce Clause

Answer 3

Facial Discrimination:

1. Law is narrowly tailored to a compelling state interest; and
2. There is no reasonable non-discriminatory alternative

Neutral, but Burden:

1. Law is substantially related to an important interest; and
2. The burden is not unreasonable (weigh burden vs. benefit)

If it’s a facially neutral tax:

1. Substantial nexus between taxpayer and state
2. Fairly apportioned tax
3. Fair relationship between tax imposed and service provided

Question 4

Ex Post Facto Law

Answer 4

Government cannot pass legislation that:

1. Retroactively alters
2. Criminal law
3. In a substantially prejudicial manner
4. To punish someone for past activity

Question 5

Bills of Attainder

Answer 5

Can’t pass law that specifically names someone to be punished, and punish them without a trial.

Question 6

Procedural Due Process

Answer 6

Deprivation of life, liberty, property without due process (notice and opportunity to be heard).

The process provided is assessed by examining:

1. Interest person has in retaining the threatened interest
2. Error rate of current process and probable value of additional process
3. Cost and admin burden of the additional process

Question 7

Substantive Due Process: SS

Equal Protection Clause: SS

Answer 7

Narrowly tailored to a compelling state interest. Applies to: Fundamental rights

• Privacy rights (MC SOFA)
• Right to vote, travel between states, refuse medical care

EPC:

• Race/Ethnicity
• Alienage

Question 8

Substantive Due Process: RB

Equal Protection Clause: RB

Answer 8

Law must be rationally related to a legitimate state interest (even hypo).

Question 9

Equal Protection Clause: IS

Answer 9

Law must be substantially related to an important state interest.

EPC

• Gender
• Illegitimacy

Question 10

Free Speech: SS

Answer 10

Applies to viewpoint and content-based (unless symbolic, or less/unprotected speech)

Question 11

Free Speech: Commercial Speech

Answer 11

Central Hudson Test

1. Speech is legal and not misleading
2. Law is narrowly tailored to a substantial interest
3. Law directly advances that interest

Question 12

Free Speech: Symbolic Speech

Answer 12

Regulating conduct.

1. Law is narrowly tailored to an important interest; and
2. It is unrelated to suppression of speech

Question 13

Free Speech: Sexual Speech

Answer 13

1. Law serves a substantial interest and

2. Leaves open reasonable alternative channels of communication

Question 14

Free Speech: Public Forums

Answer 14

Can be traditional or designated:

1. Law is content-neutral and viewpoint neutral
2. Law is narrowly tailored to an important interest; and
3. The law leaves open alternative channels of communication

Question 15

Free Speech: Private Forums

Answer 15

1. Law is viewpoint neutral and

2. Reasonably related to a legit government interest

Question 16

Free Speech: At Public Schools

Answer 16

Law is reasonably related to legitimate educational concerns.

• Applies during school and at school functions even off premises

Ex: Banning “Bong hits 4 Jesus” banner at football game is lawful

Question 17

Free Speech: Employee Speech at Gov’t Workplace

Answer 17

1. Did employee speak as a citizen on matter of public concern?
   - If not, no 1A violation
2. If so, was state justified in treating them differently than member of the public?

Ex: State can require employee take an oath to support the constitution, but not to inspire reverence for the flag.

Question 18

Free Religion: Establishment

Answer 18

Neutral Law: Lemon Test

1. State has a secular legislative purpose
2. Primary effect is not to advance/inhibit religion; &
3. It does not foster excessive gov’t entanglement with religion (i.e., closely survey funds).
   - Ex: only grant salaries for teachers who only teach secular subjects.

Law favors one religion
- Strict scrutiny

Question 19

Free Religion: Exercose

Answer 19

1. Neutral Law
2. General applicability
   (not designed to interfere with religion)

Invalid if:
Purpose is to prevent, burden, or interfere with religion/practice of religion