CONSTITUTIONAL LAW

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CONSTITUTIONAL LAW

• T. Leigh Anenson, J.D., LL.M.

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FEDERAL PREEMPTION

• 1) LITERAL CONFLICT BETWEEN STATE AND FEDERAL
  LAWS SO THAT IT IS IMPOSSIBLE TO FOLLOW BOTH
• 2) FEDERAL LAW SPECIFICALLY DECLARES THAT IT
  WILL PREEMPT STATE REGULATION
• 3) FEDERAL REGULATION IS PERVASIVE
• 4) STATE REGULATION IS AN OBSTACLE TO FULFILLING
  FEDERAL LAW

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CONGRESS POWER INTERSTATE COMMERCE CLAUSE

• THREE WAYS TO REGULATE
• 1) CHANNELS OF INTERSTATE COMMERCE
• 2) INSTUMENTALITIES OF INTERSTATE COMMERCE
• 3) INTRASTATE ACTIVITIES THAT SUBSTANTIALLY
  AFFECT INTERSTATE COMMERCE

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DORMANT COMMERCE CLAUSE TWO WAYS STATES CAN
VIOLATE

• 1) UNDUE BURDEN
• 2) DISCRIMINATORY

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RIGHTS ENDS-MEANS TESTS
CONSTITUTIONAL RIGHTS TESTS ENDS MEANS
STRICT SCRUTINY COMPELLING NECESSARY
INTERMEDIATE SCRUTINY IMPORTANT SUBSTANTIALLY RELATED
RATIONAL BASIS LEGITIMATE REASONABLE
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CATEGORIES OF SPEECH

• FULLY PROTECTED political speech, other
• (strict scrutiny) non-commercial speech
• UNPROTECTED obscene speech, fighting (rational
  basis) words, child pornography
• LIMITED PROTECTION commercial, offensive
• (intermediate scrutiny)
• substantial government interest
• direct advancement of the interest
• no more extensive than necessary

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CLASSIFICATION Commercial or Not?

• 1) speaker commercial
• 2) intended audience actual or potential
  customers
• 3) content of the message representations
  of fact of a commercial
  nature

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EQUAL PROTECTION CLAUSECATEGORIES

• STRICT SCRUTINY race or fundamental
  right (travel, vote)
• INTERMEDIATE SCRUTINY age, sex,
  illegitimacy
• RATIONAL BASIS economic social
  relations

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SUBSTANTIVE DUE PROCESS Non-Economic Rights

• MARRY
• RAISE CHILDREN
• MARITAL PRIVACY
• CONTRACEPTION
• ABORTION

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PROCEDURAL DUE PROCESS THREE FACTORS

• 1) PRIVATE INTEREST
• 2) RISK OF ERROR OF CURRENT PROCESS
• (and value of additional or substitute
  procedures)
• 3) GOVERNMENT INTEREST (including cost) OF
  ADDITIONAL OR SUBSTITUTE PROCEDURES

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TAKINGS CLAUSE EMINENT DOMAIN

• PROPERTY (REAL, PERSONAL, CONTRACT)
• TAKING (EVEN REGULATORY TAKINGS)
• PUBLIC USE
• DEVELOP GOVERNMENT-OWNED FACILITY
• CONSTRUCT IMPROVEMENTS TO WHICH THE PUBLIC WOULD
  HAVE BROAD ACCESS
• FURTHER MEANINGFUL PUBLIC PURPOSE
• JUST COMPENSATION

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ANALYTICAL FRAMEWORK

• 1) DOES THE GOVERNMENT HAVE THE POWER TO ACT
  PURSUANT TO THE CONSTITUTION?
• FEDERAL FIND POWER
• STATE CHECK FOR LIMITATION
• 2) DOES THE GOVERNMENT ACTION VIOLATE ANY OF MY
  CONSTITUTIONAL RIGHTS?