KAPLAN BAR REVIEW

Jessielle Ann Fabian

CONSTITUTIONAL LAW apply lemon test > purpose is to

celebrate a holiday)
I. INTRODUCTION b) Placing a temporary cross by the
A. Government Structure Ku Klux Klan clan in a state-owned
1. Vertical alignment (Dual sovereignty) park immediately in front of the
a. Federal government: Limited powers. Only those State Capitol; no endorsement of
that are given to it by the Constitution. religion because park had long
b. State government: Unlimited police powers, or been used by a variety of groups to
plenary powers. conduct expressive activities.
2. Horizontal alignment (Separation of powers) (religious speech is that of a
a. Legislative branch private group and not by the
b. Executive branch government)
c. Judicial branch
iv. Tax deductions for religious institutions
B. Overview of First Amendment Freedoms (1) Held valid:
“Congress shall make no law respecting an a) Property tax exemption for
establishment of religion, or prohibiting the free exercise religious institutions (equivalent to
thereof; or abridging the freedom of speech, or of the exempting other charitable
press...” organizations)

II. FIRST AMENDMENT FREEDOMS (2) Held invalid:

A. FREEDOM OF RELIGION a) Tax exemption from sales and use
1. Establishment Clause (STRICT SCRUTINY) taxes available only for the sale of
a. LEMON TEST (Lemon v. Kurtzman): If gov’t action religious magazines and books.
contains no religious preference on its face, but (facially invalid: not neutral > no
happens to benefit some religious group, gov’t need lemon test)
must show…
i. Secular purpose; v. Government aid to religious schools
ii. Neither advance nor inhibit religion; (1) Held valid:
and a) Programs that provide aid to all
iii. No excessive government elementary and secondary students
entanglement with religion (including parochial school
students) (eg. Bus services, non-
b. Types of fact patterns: religious textbooks, school lunch
i. Religious activities conducted at public programs, library materials given to
schools all types of schools, religious and
(1) Held valid: non-religious) (neutral on its face
a) Permitting a religious club from > apply lemon test)
meeting in a public school (purpose b) Tax deduction given to all parents
is social/educational, all activities based on actual expenditures for
are supported, government does children attending any public,
not monitor clubs) private, or religious school. (neutral
on its face > lemon test apply)
(2) Held invalid:
a) Prayer and bible reading in public  NB: if INDIRECT BENEFIT to
schools; (facially invalid: not religion >> court less likely to find
neutral > no need lemon test) an violation because likely pass the
b) An Alabama law authorizing a Lemon test.
period of silence for meditation or
voluntary prayer; and (neutral on (2) Held invalid:
its face > apply lemon test) a) Most government programs
c) Posting Ten Commandments on providing direct aid to parochial
the walls in public school elementary and high schools (eg.
classrooms. (facially invalid: not state provides funds for the salary
neutral > no need lemon test) of teachers in religious high
schools) (excessive gov’t
ii. Public school curriculum entanglement because gov’t has to
(1) Held invalid: closely monitor the teachers if they
a) Anti-evolution laws prohibiting the teach religious ideologies)
teaching of Darwinian principles in
public schools (purpose is to vi. Providing public services through religious
advance the religious view of a institutions
supernatural being human kind) (1) Held valid:
a) Gov’t sex education program gives
iii. Other government endorsement of religion funding to both secular orgs as
(1) Held valid: well as churches to carry it out
a) Displays that celebrate the holiday (because it is merely coincidental
season without favoring one that the policy of the state on sex
religion. (neutral on its face > is the same with the church)

Page 1 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

constitute government speech, even if

donated by private organizations.)

2. Free Exercise Clause (STRICT SCRUTINY) 2. Content-based restriction (STRICT SCRUTINY)

a. General Rule: A person’s religious beliefs are a. General Rule: Gov’t may not censor all categories
absolutely protected. Gov’t can’t punish religious of speech.
beliefs >> BUT can regulate religious conduct. i. Held invalid:
(1) Prohibiting signs within 500 feet of a
i. Exception: If law of general application foreign embassy that tended to bring
and it happens to burden religious activity, the foreign government into public
gov’t must not make a special odium or public disrepute (content-
accommodation for religion. (RATIONAL based)
BASIS SCRUTINY) (2) Prohibition against desecrating an
American flag as a form of political
 Purposeful interference (strict scrutiny) expression (content-based)
 Incidental burden (rational basis scrutiny)
b. Exception: Gov’t may regulate UNPROTECTED
b. Sincerity: Gov’t may not determine the truth or SPEECH (RATIONAL SCRUTINY)
falsity of a person’s religious beliefs >> BUT it
may determine a person’s sincerity in his claim i. Speech that advocates violence or
of religious belief. (e.g. Court may determine if the unlawful action
person is sincerely a conscientious objector) (1) Two-part test: (Clear & Present Danger
Test)
c. Held valid: a) It is directed to inciting or
i. Gov’t’s criminalization of possession of producing imminent lawless action
peyote, no exemption was made for (Subjective Prong); and
American-Indians who uses it for their b) It is likely to incite or produce
religious rituals imminent lawless action.
ii. State law outlawing polygamy (Objective Prong)
iii. Prohibition of wearing Jewish yarmulke while
on duty in Air Force violating uniform dress ii. Fighting Words - words likely to incite an
requirements. (NB: new law ALLOWS ordinary citizen to acts of immediate
religious articles to be worn with uniform physical retaliation/ violence.
provided it looks formal)  NB: Fighting words statutes subject to
facial invalidity if the conduct proscribed
B. FREEDOM OF EXPRESSION is vague or overbroad (e.g. “opprobrious
1. Government discrimination (STRICT SCRUTINY) words”).
a. General Rule: Gov’t may not engage in content-  NB: Fighting words statutes cannot be
based discrimination viewpoint based, or regulates fighting
b. Exception: GOVERNMENT SPEECH - words on the basis of race, color, creed,
government also has the right to freedom of religion or gender. >> limits Hate
speech Crimes legislation
i. Held valid:
(1) A state may prohibit the use of public iii. Hostile Audience Speech - speech which
facilities and publicly employed staff in elicits an immediate violent response
performing abortions. against the speaker by an audience.
(2) A city may refuse to erect a monument (1) Hostile audience speech vs. Fighting
containing the Seven Aphorisms of Words
Summum requested by a religious org, a) Fighting words are a direct
even if city had erected several personal insult to a specific person
permanent monuments donated by that causes a reaction of a specific
other private orgs. (because it was the person. (e.g. You are a god damn
who city decided which monuments are fascist-personal insult) (e.g. “fuck
erected, it was government speech, the draft” – no personal insult)
even if donated by private organization) b) Hostile audience speech causes
violence against the speaker by a
ii. Held invalid: large crowd.
(1) If the government provides funding for c) Fighting words rile up one insulted
lawyers to provide legal services to person.
indigents, the government may not then d) Hostile audience speech riles up an
prohibit those lawyers from challenging anonymous group that doesn't like
the welfare laws. (lawyers’ speech is not the speaker's message.
government speech)
(2) A city must not prohibit the KKK to  NB: police must make reasonable efforts
temporarily erect a cross on a public to protect the speaker, to guard against
park when other groups have been a “heckler’s veto” of unpopular
permitted to temporarily erect speech, before punishing or regulating
installations. (Temporary installations by the speaker. (e.g. civil rights group are
private organizations constitute private rallying then an angry mob throws rocks
speech, while permanent installations at them, rallyist cannot be punished

Page 2 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

because police officers did not make the b) Prohibition of attorneys from
necessary steps to protect the rallyist). advertising routine legal services at
stated fees.
iv. Obscene speech c) Ban on newsracks placed on
(1) 3-part test: sidewalks to distribute commercial
a) The average person, applying publications (while allowing
contemporary community newsracks to sell newspapers)
standards, would find that the d) Complete ban of truthful
work, taken as a whole, appeals advertising of harmful, yet lawful,
to the prurient interest; products (e.g., cigarettes, liquor).
b) The work depicts or describes, in a e) Prohibiting beer bottle labels from
patently offensive way, sexual displaying alcohol content
conduct specifically defined by the
applicable state law; and ii. Sexual speech - speech which does not rise
c) The work, taken as a whole, lacks to a level of obscenity
serious literary, artistic, (1) 2-part test: Gov’t regulation must ...
political, or scientific value. a) serve a substantial government
interest.
(2) Held valid: b) leave open reasonable
a) Regulation of Child pornography alternative channels of
(including Virtual child communication.
pornography) (compelling
governmental interest) (2) Held Valid:
a) Ban on public nudity
ii. Defamatory speech b) Ban on nude dancing to prevent
(1) Categories: prostitution and other forms of
a) private person - purely private criminal activity.
concern >> publication (malice c) Zoning law that prohibits adult
presumed) movie theaters within 1,000 feet of
b) private person - public concern >> houses, churches, schools, and
negligence (FALSE & FAULT- parks. Theatres still have 5% of
negligence) the city where they can operate.
c) public official or public figure >>
actual malice (FALSE & FAULT- iii. Symbolic Speech (conduct treated as
actual malice) symbolic speech)
d) private person – public concern (1) O’BRIEN TEST (U.S. v. O’Brien):
(but for false-light invasion of Symbolic speech may be restricted if the
privacy) >> actual malice. regulation…
(FALSE & FAULT-actual malice) a) serves a substantial
government interest
c. Exception: Gov’t may regulate QUASI i. that is unrelated to the
PROTECTED SPEECH (INTERMEDIATE suppression of speech; and
SCRUTINY) b) the burden on speech is no
i. Commercial speech greater than is necessary.
(1) General Rule: A state may prohibit
commercial advertising of matters that (2) Held valid:
are illegal or false, misleading, or a) Prohibition of the destruction of
deceptive. draft cards (card sent to someone
drafted to the army)
(2) Exception: if the subject matter is not
illegal or false (e.g. vice advertising) (3) Held invalid:
gov’t regulation must … a) Prohibition of students wearing
a) directly advance black armbands to protest Vietnam
b) a substantial government war
interest; and b) Prohibition against burning the
c) be narrowly tailored American flag

(3) Held valid: 3. Content-Neutral Regulation (INTERMEDIATE

a) Discipline of lawyers for in-person SCRUTINY)
solicitation of clients. a. General Rule: Gov’t may regulate content-neutral
b) Preventing doctors from claiming speech or conduct but regulation must…
“board certified” unless certified by i. serve a significant government interest
an organization ii. narrowly tailored, and
c) Regulate billboards for purpose of iii. leave alternative channels of
highway safety and aesthetics communication open.

(4) Held invalid: a. TIME, PLACE, MANNER REGULATION-

a) Absolute ban on the advertisement Reasonable regulation of the time, place, or
of drug prices manner of speech is allowed.

Page 3 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

i. Public forums & designated public forums

(e.g., streets, sidewalks, parks)

(1) 4-part test: The regulation must… ii. Held valid (exceptional cases):
a) be content-neutral; (1) National security and classified military
b) serve a significant government information
interest; (2) Seizure of a “single” book or film to
c) narrowly tailored; and preserve as evidence
d) leave alternative channels of (3) Requiring films to be submitted to a
communication open. Board of Censors (standard for denial of
license must be narrowly drawn and
(2) Licenses or permits: licensing officials reasonable; if license is denied the
given no unbridled or unfettered censor must promptly seek an
discretion to determine who may injunction; burden of proving obscenity
receive a permit is on the censor; with prompt judicial
a) If application is denied: determination)
i. statute valid on its face >>
applicant must appeal the b. OVERBREADTH DOCTRINE – regulation must
adverse ruling to the proper not be overly broad so as to unnecessarily cover
administrative or judicial and thereby have a chilling effect upon protected
body. speech.
ii. statute is facially void >>
speaker need not apply for i. Held invalid:
a permit (1) Prohibiting “opprobrious language”
(2) Prohibiting speech that “stirs the public
(3) Held valid: to anger, invites dispute”
a) Requiring permits for gatherings in (3) Requiring charitable orgs to use 75% of
parks (grounds for granting or receipts for “charitable purposes”
denying permit must be content-
neutral) c. VAGUENESS DOCTRINE - Government
b) prohibiting speeches through regulations must be narrow and specific. (when
amplifiers at night or in residential regulations fail to give reasonable notice of what is
zones, or in front of a person’s prohibited, also violates Due Process Clause)
house, or within buffer zones
i. Test: Could a reasonable person know what
(4) Held invalid: speech is outlawed and what speech is
a) Requiring parades to pay for police allowed?
protection. (not content-neutral
because unpopular speakers need ii. Held invalid: void for vagueness
more police protection) (1) statute making it a crime to treat the
flag “contemptuously”
ii. Non-public forums or Limited public places (2) statute prohibiting government
(e.g., military bases, jails, gov’t workplaces) employment for being “subversive”
(RATIONAL BASIS SCRUTINIY) (3) ordinance defining vagrants as “persons
wandering or strolling around” or
(1) 2-part Test: The regulation must … loitering as “to remain in one place with
a) be viewpoint-neutral; and no apparent purposed”.
b) be rationally related to a
legitimate government 3. FREEDOM OF THE PRESS
interest. a. General Rule: The press has no greater
freedom to speak than any ordinary member of
(2) Held valid: the general public and no right to refuse to testify
a) Prohibition of demonstrations on before a grand jury.
jailhouse grounds.
b) Closure of Military bases to political 4. FREEDOM OF ASSOCIATION
speeches and distribution of a. General Rule: Individual cannot be denied public
leaflets. employment based on membership in a political
organization.
4. FACIAL CHALLENGE / ATTACKS
a. PRIOR RESTRAINT - Gov’t cannot suppress or b. Exception:
restrain speech in advance of its publication or i. He is an active member of a subversive
utterance >> BUT can impose subsequent organization;
punishment. ii. He has knowledge of the illegal aims of
the organization;
i. Held invalid: iii. He has specific intent to further those
(1) Enjoining the publication of the aims.
Pentagon Papers.
(2) “large scale” confiscation by the post c. Held valid:
office of mailed materials determined by i. Oath of public employees to “support the
postmaster to be obscene constitution of the United States”

Page 4 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

ii. Younger Abstention - where there are

pending state criminal proceedings

d. Held invalid:
i. Requiring teachers to file affidavit listing 5. Standing
every org they belonged in or to swear not to a. Requirement: Plaintiff must show…
lend support to communist party i. Injury in fact – that there is direct and
personal injury
5. BAR ADMISSION ii. Causation and Redressability – that the
a. Held valid: injury was caused by the defendant and the
i. state permitted, to inquire into the relief sought will prevent or redress the
qualifications and fitness of candidates for injury.
admission to the bar.
ii. state can refuse bar membership to an b. Special cases on standing:
applicant who refuses to answer questions if i. Taxpayers: generally, no standing >>
his refusal obstructs the bar. Except: where there is a nexus (logical link)
between the taxpayer and the claim sought.
III. THE FEDERAL COURTS
A. JURISDICTION OF THE SUPREME COURT ii. Third parties: generally, no standing >>
1. Original Jurisdiction: Except:
a. cases affecting ambassadors, other public a. Where special relationship exists
ministers and consuls between claimant and third party
b. cases in which U.S. is a party b. Where party is unable to bring suit on
his/her own behalf
2. Appellate Jurisdiction:
a. Cases arising under the Constitution, Federal iii. Associations: allowed in behalf of its
Laws and Treaties; members, if …
b. cases of admiralty and maritime jurisdiction; a. the members have standing to sue in
c. controversies between two or more states; their own right,
d. cases between a state and citizens of b. the interest asserted is germane to
another state; and the association's purpose and
e. cases between citizens of different states c. the claim asserted nor the relief
(diversity jurisdiction) requested would not require
participation by the individual
3. 2 methods to invoke appellate jurisdiction: members in the lawsuit
a. Direct appeal – Decisions of 3-judge Federal
District Courts 6. Political Questions
a. Rationale: Doctrine of Separation of Powers and
b. Certiorari – Grounds: (discretionary) Limitation on the court’s SM Jurisdiction
i. conflicts between different Federal CA
ii. conflicts between the SCof two states, or a b. Example: impeachment process; amendment
state SC and a Federal CA ratification process; President’s power to
iii. involving important, yet unresolved, issues unilaterally terminate a treaty; foreign affairs,
particularly diplomatic and military strategizing;
B. LIMITATION ON FEDERAL COURTS disputes about the Guaranty Clause of Art. IV.
1. Actual case or controversy – no advisory opinions
a. Except: State courts allowed to render advisory c. Except: reapportionment and gerrymandering >>
opinions not political questions may be heard by the federal
courts
2. Mootness - A case is moot unless an actual
controversy exists at all stages of review 7. Adequate and Independent State Ground (U.S.
a. Except: SC only)
i. Party has interest in resolving a collateral a. If supported by state grounds >> NO judicial
matter review
ii. the injury is capable of repetition, yet b. If supported by federal grounds >> with judicial
evading review review

3. Ripeness – there must be a genuine, immediate threat 8. State Sovereign Immunity (11th Amendment)
of harm (apply to Federal and State courts)
a. General Rule: Pre-enforcement challenges on laws a. General Rule: Federal court cannot try a case
not allowed involving as State without the state’s CONSENT
b. Except: Where person faces risking penalties for i. Cases between a state and its own citizens
violating the law yet to be enforced ii. Cases between a state and the citizens of
another state
4. Abstention iii. Cases between state and foreign country
a. Types: Federal court will abstain to review and
leave the case with the State court … b. Covers: suits against the government itself (state
i. Pullman Abstention – where the case is or federal) and its arms or agencies
based on an unsettled issue of law
c. Exceptions:

Page 5 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

i. Suits against state officials - If not paid out of b. Speech and Debate Clause - for any speech or
the state’s treasury (e.g. If sued in personal debate in either house
capacity)
ii. Suits against state subdivisions (e.g. cities,  CONGRESSIONAL DELEGATION OF POWER - Congress
towns, counties may be sued) may delegate the task of implementing its laws to
iii. Suit brought by state or federal government government agencies if …
iv. State consent (e.g. consent to tort claims) i. Congress passes enabling legislation (state or
federal)
IV. SEPARATION OF POWERS ii. Specifies the purpose, functions, and powers
A. LEGISLATIVE POWER iii. Describes the procedure of the agency
1. Commerce Power – Congress can regulate: (a)
channels of interstate commerce, (b) instrumentalities B. EXECUTIVE POWER
of interstate commerce, and (c) activities that 1. Chief ExecutivePowers
substantially affect interstate commerce. a. Appointment power
a. Affectation Doctrine – can regulate activities i. With approval of Senate:
affecting directly or indirectly interstate commerce. (a) ambassadors, other public ministers and
b. Aggregation Doctrine – can regulate if overall consuls,
or aggregate impact on commerce is substantial. (b) Judges of the Supreme Court, and
(Limitation: only applies to economic activities) (c) all other officers of the United States,
whose appointments are not provided in
c. Fact patterns: the Constitution
i. Regulation of local matter affecting
commerce (e.g. regulation of amount of ii. Federal Executive Officers: Congress cannot
wheat farmer can grow) appoint federal executive officials . But
ii. Racial segregation and discrimination (e.g. Congress can delegate the appointment of
regulation of discrimination in restaurants) “inferior” officers to either (a) the President
iii. Criminal statutes that affect interstate or (b) the judiciary or (c) heads of
commerce (e.g. law against loan sharking) departments.

NB: 10th Amendment (“powers not delegated to the FG b. Removal power

are reserved to the SG”) >> serves as a very weak i. General Rule: President may remove any
limitation to federal commerce power. BUT it does executive appointee without cause
prevent Congress from “commandeering the state’s
legislative” to enact laws. ii. Exception: Removal must be for cause if:
(a) executive officers have fixed terms
2. Taxing Power - Tax must be uniform (geographic) (b) officers performing judicial or quasi-
and proportional. NO export tax within U.S. states judicial functions.
a. Doctrine of objective constitutionality: Tax is  NB: Federal judges may only be
upheld if its “dominant intent” is revenue raising. removed by formal impeachment
Thus, even though the tax may have a substantial proceedings
regulatory effect, if the tax in fact raises revenue
(“objective” test) it will be valid. c. Obligation to report
d. Veto Power – President can prevent a bill from
3. Spending Power- limited by the “General Welfare becoming a law by …
Clause” i. Presidential veto - acting on it within 10
days (otherwise, the bill will become law) or
4. War and Defense Powers - (1) power to declare ii. Pocket Veto - not acting on it at the end of
war; (2) power to raise and support Armies; (3) power congressional term (thereby the bill is
to provide and maintain a Navy; and (4) power to effectively vetoed)
organize, arm, discipline and call forth the militia. iii. NO line item veto

5. Investigatory Power- the “Necessary and Proper  Override of veto: 2/3 vote of each house
Clause” permits Congress to conduct investigation of Congress
incident to its legislative power within a legitimate
legislative sphere. e. Pardon Power – limited to federal offenses
f. Executive Privilege - President has absolute
6. Property Power- the “Property Clause” gives privilege to not disclose military, diplomatic or
Congress complete power over federal lands. sensitive national security secrets >> BUT other
7. Power of Eminent Domain communications are only presumptively privileged
8. Admiralty and Maritime Power
9. Bankruptcy Power 2. Commander-in-Chief Powers – President has power
10. Postal Power to deploy military forces without a formal declaration of
11. Copyright and Patent Power war >> BUT NO power to declare war (only by
12. Congressional Immunity – senators and Congress)
representatives shall be immune in all cases >>
Except: treason, felony and breach of the peace 3. Foreign Affairs Power
a. Privileged from arrest - during their attendance at a. Treaty: with 2/3 vote of Senate
the session of their respective houses, and in i. Self-executing treaty – becomes law
going to and returning from the same; and ii. Non-self-executing – NOT law yet

Page 6 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

b. Executive Agreement: without Senate action i. General Rule: State is immune from federal
taxation if tax is applied to: (1) unique state
 IMPEACHMENT OF PRESIDENT, VP AND FEDERAL activities or (2) to essential governmental
CIVIL OFFICERS functions. (if proprietary activity >> taxable)
i. Grounds: (a) treason, (b) bribery, or (c) other high
crimes and (d) misdemeanors. b. Immunity from Federal regulation
ii. Power to impeach: HR
iii. Power to try: Senate (2/3 vote of Senate) c. Immunity from Suits
i. General Rule: State may only be sued if it
V. RELATION OF FEDERAL AND STATE POWERS consents >> Except: if the suit is by FG or
A. NATURE AND SCOPE OF FEDERAL AND STATE one of its agencies or instrumentalities (may
1. Exclusive Federal Powers: Art 1 Sec 10 - entering sue SG without SG’s consent)
treaties, coin money, lay any impost or duties on
imports or exports. C. NATIONAL POWER TO OVERRIDE STATE AUTHORITY
a. NO FEDERAL POLICE POWER. 1. SUPREMACY CLAUSE - the Constitution, treaties and
b. General Welfare Clause and Necessary and Proper laws of the United States are the supreme law of the
Clause are NOT independent sources of power. land.

2. State powers: 10th Amendment - “the powers not 2. Hierarchy of Laws:

delegated to the United States by the Constitution, nor a. Constitution
prohibited by it to the states, are reserved to the states b. Act of Congress : Federal Statutes, Federal
respectively” Common Laws, and Treaties
c. Act of the Executive : Executive Agreement
a. Constitutional Limitation: States prohibited from (foreign) and Executive Order (domestic) or
(1) making treaties with other nations; (2) coining administrative regulations
money; (3) passing abill of attainder; (4) d. State Law
enacting an ex post facto law; (5) impairing e. Local Law
the obligation of contracts ; (6) laying any duty
on imports or exports, except where it is 3. Pre-emption:
necessary for executing its inspection laws; (7) a. Express preemption – Congress may expressly
engaging in war; or (8) maintaining a peace-time preempt state law
army. b. Implied preemption – may be found …
i. where it is impossible to comply with both
b. Authority reserved to the States state and federal law,
i. DORMANT COMMERCE CLAUSE/  “SUPERSESSION DOCTRINE”- a
NEGATIVE IMPLICATIONS DOCTRINE - federal law will supersede any state law
Where Congress has not enacted legislation, in direct conflict
the states are free to regulate/tax local
transactions affecting interstate commerce ii. state law impedes the achievement of a
provided, State regulation must be… purpose of federal law, or
 NB: States are free to enact more
1. non-discriminatory and stringent standards than those
2. not impose undue burden on mandated by federal law
interstate commerce, using a
BALANCING TEST. iii. federal law has regulated a subject so
thoroughly that it appears Congress intended
ii. MARKET PARTICIPANT EXCEPTION - to occupy the entire field to the exclusion of
Where a state acts as a market participant, it state law
is not prohibited from discrimination.  “PREEMPTION DOCTRINE” – any
state law in an area where Congress
B. INTERGOVERNMENTAL IMMUNITIES intends to occupy the field is
1. Immunity of Federal Government unconstitutional.
a. Immunity from State taxation
i. Except: may impose a non-discriminatory To Uphold a Federal statute
tax on persons who contract with the FG, so 1. Supremacy clause
long as the incidence of tax does not fall on 2. Any enumerated power of Congress (art 1, sec. 8)
FG. (e.g. tax on independent contractors, 3. Federal property power
state sales tax, state property tax, state
income tax) To Uphold a State Statute
1. Dormant commerce clause
b. Immunity from State regulation a. Non-discriminatory
i. Except: to the extent that FG has ceded b. No undue burden on interstate commerce – use a
jurisdiction to the state balancing test
2. Police power – health, safety, welfare, morals,
c. Immunity from Suits by private individuals aesthetics
i. Except: if FG consents.

2. Immunity of State Government

a. Immunity from Federal taxation

Page 7 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

VI. PROTECTION OF INDIVIDUAL RIGHTS c. Property interest: includes interest in real and
A. STATE ACTION REQUIREMENT personal property, continued receipt of public
1. General Rule: State action is required to infringe benefit, continued government employment, and
constitutional rights >> except: Slavery (13th continued public education
Amendment) – apply to private acts
2. Types:
2. Exceptions: state action can be found in actions of a. Procedural Due Process - The procedural
private individuals… safeguards of notice and a hearing are available
a. Public Function Exception – where a private whenever there is a serious deprivation of any life,
individual or entity is carrying on activities liberty, or property interest
traditionally and exclusively performed by the  NB: irrebuttable presumptions violate PDD
government.
b. Entanglement Exception – where the b. Substantive Due Process - applies to
government is significantly involved in a private regulations affecting the fundamental rights of
individual’s or entity’s conduct. persons.

B. SCRUTINY  FUNDAMENTAL RIGHTS:

1. Strict Scrutiny – burden on government to show the a. Right to vote
regulation is Necessary (no less restrictive means) to i. Discrimination in voting
a Compelling government interest ii. Reapportionment
>> Applies to: iii. Switching party affiliation
a. Suspect classes: EP Race, Alienage, National iv. Ballot restrictions based on “special
Origin interests” (land ownership)
b. Fundamental Rights: SDP Right to vote, Right
to travel, Right to privacy NON-FUNDAMENTAL VOTING
c. First Amendment Freedoms: Freedom of RIGHTS (Rational Basis)
Religion, Freedom of Expression – content (a.) Payment of a filing fee
based regulation (b.) Minimum and maximum age
restrictions
2. Intermediate Scrutiny – burden on government to (c.) Residency (e.g. 30 days)
show the regulation is Substantially related to an
Important government interest b. Right to travel
>> Applies to: c. Right to privacy (CAMPER)
a. Quasi-suspect classes: EP Gender, Illegitimacy i. Contraception
b. First Amendment freedoms: Freedom of ii. Abortion
Expression - quasi protected speech, content- iii. Marriage
neutral regulation iv. Procreation
v. Private Education
3. Rational Basis Scrutiny – burden on plaintiff to show vi. Family Relations
that the regulation is NOT Rationally related to a
Legitimate government interest  “TAKINGS” CLAUSE (“Eminent
>> Applies to: Domain”) - The 5th Amendment provides
a. All other classifications: EP Age, Poverty, that private property shall not be taken for
Wealth, Mental Retardation public use without just compensation.
b. Social and Economic Welfare Measures: SDP
Necessities of life – food, clothing, shelter, i. Taking: actual appropriation,
medical care, Takings clause, Taxation destruction, or permanent physical
c. First Amendment freedoms: Freedom of invasion of one's property (not mere
expression - unprotected speech, non-public regulation or police power)
forum
ii. Just compensation: FMV of the property
VII. DUE PROCESS at the time of taking. Measured by what
A. INCORPORATION OF THE BILL OF RIGHTS TO THE STATES the property owner lost, not by what the
1. General Rule: The due process clause of the 14th government gained.
Amendment incorporates most of the Bill of Rights
safeguards to the states. iii. Public use: upheld as long as rationally
related to some conceivable public
2. Exception: States do not have… purpose (Rational Basis)
a. Right to grand jury trial in criminal cases (Federal
only)  Land use regulation to constitute taking: it
b. Right to jury trial in civil cases (Federal only) must substantially advance a legitimate
government interest (Intermediate
B. DUE PROCESS CLAUSE scrutiny)
1. Scope: “No person shall be deprived of life, liberty, or
property, without due process of law”

a. Persons: include corporations and aliens

b. Liberty interests: includes freedom from
constraint, freedom to contract, freedom to work,
professional reputation

Page 8 of 9
 KAPLAN BAR REVIEW
Jessielle Ann Fabian

VIII. EQUAL PROTECTION OF THE LAWS Generally wrong answers

A. EQUAL PROTECTION CLAUSE 1. General welfare clause – mere vehicles not a source of
1. Scope: “no state shall ... deny to any person within its power
jurisdiction the equal protection of the laws.” 2. Necessary and proper clause – mere vehicles not a source of
power
2. Substantive Due Process vs. Equal Protection 3. Privilege OR Immunities of the 14th Amendment (right of
Substantive Due Equal Protection citizenry) – weaker than Privilege AND Immunities in Article
Process 4
Assures that a law will be Assures that persons 4. Contracts clause – only applies to states
fair and reasonable, and similarly situated are treated 5. Ex post facto – only applies to criminal cases
not arbitrary equally (e.g. discrimination) 6. Distinction between rights & privileges
Affect the rights of all Affect the right of some 7. 10th Amendment (caveat: NY vs US) – (health, safety and
persons with respect to a persons with respect to welfare clause by state?) no commandeering by federal
specific activity specific activity. government over state governments

IX. PRIVILEGES AND IMMUNITIES CLAUSES 1st Amendment Freedom of Religion

A. PRIVILEGES AND IMMUNITIES UNDER 14th AMENDMENT Free exercise and
1. Scope: “No state shall make or enforce any law which Establishment clause
shall abridge the privileges or immunities of citizens of Freedom of Speech,
the United States.” Freedom of Press,
Right to peaceably assemble,
2. Article 4 Vs. 14th Amendment Right to petition the government for redress
Privilege AND Privilege OR immunities and grievance
immunities clause clause 2nd Amendment Right to bear arms
(Article IV) (14th Amendment) 3rd Amendment Quartering soldiers
Prohibits economic Prohibits denial of privileges 4th Amendment Right against unreasonable searches and
discrimination by one state and immunities of national seizures
against the citizens or citizenship by states from its 5th Amendment Due Process clause,
residents of another state own citizens. Rights in criminal cases:
Right against double jeopardy,
X. RETROACTIVE LEGISLATION Right against self-incrimination),
A. CONTRACT CLAUSE (State only) Takings clause
1. Scope: “No state shall...pass any...law impairing the 6th Amendment Right related to criminal prosecution:
obligation of contracts.” Right to speedy, public, impartial trial
Confrontation clause,
2. Application: applies only when a state attempts to Right to compulsory processes,
retroactively alter the obligations of contracts that Right to counsel
already exist >> NOT apply where state enacts 7th Amendment Rights in civil cases:
legislation that applies only prospectively Right to jury trial
8th Amendment Right against excessive bail,
3. Limitation: Contract may be modified under State’s Right against excessive fines,
Police Power Right against cruel and unusual punishment
9th Amendment Rights retained by the people
B. EX POST FACTO LAWS (State and Federal) 10th Amendment Right reserved to the States
1. General Rule: No ex post facto law shall be passed Residual powers
which retroactively alters criminal law when it … 11th Amendment Judicial power
a. makes criminal an act that was not a crime 12th Amendment Election
when committed, or
13th Amendment Slavery and Involuntary Servitude
b. prescribes greater punishment for a crime
14th Amendment Rights incorporated to the States:
after its commission, or
Privilege and immunities clause,
c. decreases the amount of evidence required
Due Process clause,
for conviction or
Equal Protection clause
d. extends the statute of limitations for crime as
to which previously applicable statute of
limitations has already expired.

C. BILLS OF ATTAINDER (State and Federal)

1. General Rule: A bill of attainder is a legislative act
that inflicts punishment without a judicial trial
upon named individuals or an easily ascertainable
group for past conduct.

Page 9 of 9