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CONSTITUTIONAL LAW

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SUBSTANTIVE DUE PROCESS: Non-Economic Rights. MARRY. RAISE CHILDREN. MARITAL PRIVACY ... PROPERTY (REAL, PERSONAL, CONTRACT) TAKING (EVEN REGULATORY TAKINGS) ... – PowerPoint PPT presentation

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Title: CONSTITUTIONAL LAW


1
CONSTITUTIONAL LAW
  • T. Leigh Anenson, J.D., LL.M.

2
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

3
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

4
DORMANT COMMERCE CLAUSE TWO WAYS STATES CAN
VIOLATE
  • 1) UNDUE BURDEN
  • 2) DISCRIMINATORY

5
RIGHTS ENDS-MEANS TESTS
CONSTITUTIONAL RIGHTS TESTS ENDS MEANS
STRICT SCRUTINY COMPELLING NECESSARY
INTERMEDIATE SCRUTINY IMPORTANT SUBSTANTIALLY RELATED
RATIONAL BASIS LEGITIMATE REASONABLE
6
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

7
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

8
EQUAL PROTECTION CLAUSECATEGORIES
  • STRICT SCRUTINY race or fundamental
    right (travel, vote)
  • INTERMEDIATE SCRUTINY age, sex,
    illegitimacy
  • RATIONAL BASIS economic social
    relations

9
SUBSTANTIVE DUE PROCESS Non-Economic Rights
  • MARRY
  • RAISE CHILDREN
  • MARITAL PRIVACY
  • CONTRACEPTION
  • ABORTION

10
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

11
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

12
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?
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