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Constitutional Law II Outline

Constitutional Law II

Class Info

Law School: Liberty University School of Law

Course ID: LAW 532

Term: Spring 2019

Instructor: Prof. Tuomala

My Grade Earned: A−

Books Used
  • American Constitutional Law: Powers and Liberties by Calvin Massey

Equal Protection


  1. Identify the class affected
    • Also identify the class of people treated otherwise
  2. Determine whether the classification is suspect
    • Suspect Classification

      A few factors determine whether a classification is suspect. It is likely if it is:

      1. Historically irrationally marginalized or oppressed
      2. A minority
      3. Immutable traits
      4. Without the political power to remedy its issue
  3. Choose the relevant standard of review
    • Minimal scrutiny if not a suspect classification (default standard of review)
    • Strict scrutiny if a suspect classification (e.g., race)
      • Even if it is discrimination in favor of minority races
        • Only diversity in higher education and proportionate remediation of past, unremedied discrimination caused by that government will satisfy this.
    • Intermediate scrutiny if a semi-suspect classification (e.g., gender)
      • Applies to both men and women
      • The government's interest cannot be based on improper stereotypes or archaic or overly broad generalizations. If it is based on biological differences or childbirth, the government will probably win; if not, it will probably lose.
Discriminatory Effect

A discriminatory effect alone does not violate equal protection, but a discriminatory purpose can, and a discriminatory effect is evidence of a discriminatory purpose.

Diversity is a compelling government interest in higher education.

  • Quotas are prohibited however because they are not narrowly tailored.
Private Discrimination

The U.S. Constitution does not prevent private racial discrimination, so neither state nor the federal governments have a duty to outlaw it.

States can outlaw private discrimination under their police powers however, and the federal government can under the commerce clause.

States can enforce private racially restrictive covenants of the sale of property, but they do not have to.

States can generally repeal anti-discrimination laws, but they may not be able to if it is seen as intending to authorize racial discrimination.

Political Process Doctrine

If a higher level of government repeals a lower government's anti-discrimination law, the political process doctrine declares such repeal unconstitutional because it forces the people discriminated against to go to a higher level of government to get protection.

Saving money is a legitimate state interest, but not a compelling state interest.

State laws discriminating against lawful resident aliens in employment are given "close scrutiny" (meaning strict scrutiny), except the political function exception will give a lower standard of review if the discrimination is "to preserve the basic conception of a political community."

If a law implicates both a non-protected class—such as the poor or non-residents—and a fundamental right—such as voting, access to the judicial system, travel (invoked by welfare), or education—it will be given strict scrutiny.

Contract Clause

The Contract Clause covers all kinds of contracts. There does not have to be a debt.

Ogden said the government cannot impair previously made contracts, but it can set the terms of contracts for the future.

  • Marshall dissented in believing in an inherent right to contract which could not be limited by the government, even if it only affected future contracts.
  • In Lochner, this was justified under the Due Process Clause of the Fourteenth Amendment however, not the Contract Clause.

After the New Deal, the Supreme Court changed its mind and said that past contracts could be changed by the government if done to address general social or economic problems, but even this was tested under minimal scrutiny.

In 2018, the Court allowed past contracts to be altered even without addressing a general social or economic problem.

So basically, the Contract Clause has been judicially written out of Constitution.

Takings Clause
Madison's Memorial and Remonstrance

Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.

Establishment Clause

The Establishment Clause of the First Amendment states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

There are three views of the Establishment Clause: separationism, non-preferentialism, and jurisdictionalism.


Separationists claim that the state may fund secular beliefs but not religious beliefs.

Separationism used to be the most popular view.


Non-preferentialists believe that the state may fund religious and secular beliefs equally.

Non-preferentialism has generally prevailed in the Supreme Court.


Jurisdictionalists hold that the state may not fund any beliefs—and that the distinction between secular and religious beliefs is a false one.

Jurisdictionalism is the best.

Cases concerning the establishment clause generally involve either aid to religious schools, religion in the public schools, or religion in the public square.

Aid to Religious Schools

Generally, something like the Lemon test is used for government aid to religious schools.

The government cannot pay salaries at religious schools, but it may donate secular materials. (Supposedly because it trusts Christian schools to not use donated computers for religious purposes)

Services like tutoring and disability aid can be given to religious school students at their schools.

Aid like tuition vouchers can be given to the parents of students at religious schools.

Religion in the Public Schools

For religion in the public schools, the Court has used the endorsement test, coercion test, and voluntariness test.

Children can be released from school for religious activities as long as the activity is off-campus.

Prayer is always prohibited under the coercion test or endorsement test unless it is completely voluntary and not coordinated or aided by the school.

Having religious elements such as creationism or the Ten Commandments in the school's curriculum will basically always be struck down as a violation of the first prong of the Lemon test—having a secular purpose.

Religion in the Public Square

Religion in the public square cases usually use either the Lemon test, history and tradition test, or endorsement test.

Legislative prayer is usually allowed under the history and tradition test as long as it is not used to proselytize or degrade others or something.

For nativity scenes (crèches), the Court applies Lemon and the endorsement test.

Private religious speech is allowed in public forums (Like at school after hours and in parks). In fact, the government cannot discriminate against religion in allowing or disallowing someone to use a public forum for his speech.

Acknowledgment of religion is okay as long as it does not reach endorsement.

Lemon Test

The Lemon test is one of the Supreme Court's test to determine whether a law can survive an establishment clause challenge.

For a statute to be valid under the Lemon test:

  1. The statute must have a secular legislative purpose.
    • There is some dispute about whether it must be a primarily secular purpose or just a secular purpose.
  2. Its principal or primary effect must be one that neither advances nor inhibits religion.
  3. The statute must not foster "an excessive government entanglement with religion."
    • Sometimes this is merged with the second prong.

The Lemon test has been the clearest and most popular of the Supreme Court's establishment clause tests, but even it has been abandoned now, though without a clear replacement.

Endorsement Test

In Weisman, O'Connor set out a two prong test to determine whether or not an act is a government endorsement of religion:

  1. Is the city's actual purpose to endorse or disapprove religion?
    • The subjective intent of the speaker
  2. Does the practice in fact convey a message of endorsement or disapproval of religion?
    • The objective meaning

The endorsement test is kind of similar to the Lemon test.

History and Tradition Test

The history and tradition test allows government practices under the establishment clause if it is something that has been done throughout America's history.

Vague ceremonial deism is okay.

Conservatives justify this by saying that if the founders did it, then obviously they did not intend to prohibit it in the Constitution; liberals justify this by saying that such practices are just historical in nature now and that they have lost their religious meanings.

Coercion Test

The coercion test prohibits government practices that coerce religious belief/nonbelief or practice/nonpractice.

Coercion includes psycho-coercion, where only peer pressure causes people to do or not do something.

The non-preferentialists believe that there must be some sort of civil or criminal sanction imposed for something to truly be coercive.

The jurisdicitonalists believe that coercion is effected when someone is taxed to propagate opinions and beliefs that they do not agree with.

Free Exercise Clause

Two approaches have been taken to the Free Exercise Clause when one's religious belief is burdened:

  1. Heightened scrutiny
  2. Laws of general applicability
    • If your religious belief breaks a law that applies to everyone, it will not get you out of jail.
      • Exceptions:
        • Hybrid cases (such as involving parental rights too)
        • Unemployment compensation
        • If the crime is symbolic expression
        • If the law targets religion

RFRA is a federal law that "ensures that interests in religious freedom are protected." It has been held to be unconstitutional as applied to the states, but it can bind federally.

  • It thus applies strict scrutiny to any federal action that substantially burdens one's free exercise of religion.

If a law would violate the Free Exercise Clause, then an accommodation must be made for religion.

Even where the Free Exercise Clause is not violated, the state may accommodate a religious practice, unless granting such a protection to religious people would violate the Establishment Clause (Lemon test). However, it does not have to accommodate.

The state has some play-in-the-joints where neither the Free Exercise Clause nor the Establishment Clause are violated, and it can thus choose to accommodate religion or to not.

If a tax accommodation is made to religious organizations, it must also be made to secular organizations.

State Action Doctrine

If a private organization performs municipal functions (like a company town), it is treated as a state action and thus cannot discriminate on the basis of religion.

  • Utility companies are not included in this.
  • Shopping centers have been treated as state actors and have been required to not prohibit people's free exercise of religion therein.
  • This includes organizations with an "inextricable entanglement" of government and private actors, like with a parking garage or restaurant or athletic association.

Enforcing restrictive covenants made between private parties is government action and thus prohibited by the state action doctrine.

The political process doctrine falls under the state action doctrine.

Congressional Enforcement Powers

The Thirteenth Amendment outlaws slavery. The Fourteenth Amendment just addresses state action, not private discrimination.

Discrimination in public accommodations is not a badge or incident of slavery, but discrimination in housing sales is.

The Thirteenth Amendment is interpreted by Congress now, not the courts. The Fourteenth is interpreted by the courts.

However, Congress can regulate private acts under the Commerce Clause.

The Fourteenth Amendment is self-executing in some areas, such as the exclusion of evidence; but Congress can also provide remedies, such as providing monetary for violations.

Under the Fourteenth and Fifteenth Amendments, Congress can punish states that have historically discriminated and outlaw their constitutional laws (like literacy tests for voting) as a preventative measure to prevent them from going farther and actually unconstitutionally discriminating.

Congress cannot revoke sovereign immunity under the Commerce Clause, but it can under the Fourteenth Amendment if the state violates the Constitution or has a history of violations and the law satisfies proportionality and congruity.

Freedom of Speech
Freedom of Speech in a Bombshell 2019
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Tumola believes that, while regulating speech in general is outside of the government's jurisdiction, the First Amendment only specifically prohibits abridging political speech that is critical of the government. All other speech just falls under the government's general lack of jurisdiction to regulate it.

Unprotected Speech
Inflammatory Speech
Masses Test

The Masses test, although never adopted adopted by the Supreme Court, held that speech directly advocating criminal activity is unprotected. It does not matter how likely, serious, or imminent the crime would be.

Clear and Present Danger

The clear and present danger test is not followed anymore, but it used to be the test for whether or not speech could constitutionally be prohibited.

The clear and present danger test says that the government may punish speech that is intended to produce, or of which the natural and probable effect is to create, a danger of a likely, imminent, and serious crime.

The Court will defer to Congress what constitutes a clear and present danger.

Brandenburg Test

The Brandenburg test is the current test for what inflammatory speech Congress can prohibit. It requires advocacy directed to inciting or producing imminent lawless action and that is likely to incite or produce such action.

Discuss all three on a test.


A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence ot a particular individual or group of individuals.

The most important element is the intent to put in fear.

Intent to carry out the threatened action is not needed.

The Supreme Court has not ruled whether knowledge or recklessness would be a sufficient mens rea.

Hate Speech

Hate speech is not a separate category of unprotected speech for First Amendment purposes.

Hate speech must fall within another recognized category to lose First Amendment protection.

Group Libel

Group libel is not unprotected speech.

A group libel conviction was upheld in Beauharnias v. Illinois, but for a number of reasons, this is probably not good law anymore.

Fighting Words

Fighting words are statements likely to cause the average addressee to fight. They must be given personally, face-to-face though.

Negligence might be enough mens rea.

Fighting words are unprotected speech.

Statutes can outlaw a subset of fighting words as long as that subset of fighting words is not content-based (based on viewpoint). (It gets strict scrutiny, even if the speech is worthless.)

Being motivated by race can be a basis for enhanced sentencing, just not an element of the crime itself.


Under the Miller test, speech is obscenity and therefore unprotected if it:

  1. Appeals to the prurient interest of the average person in the community,
  2. Is patently offensive to the community as defined by statute, and
  3. Lacks serious literary, artistic, political, or scientific value.

This includes child pornography as long as it involves actual children and not just drawings of children.

  • The purpose of the protection is to protect children from the harm in the creation of the pornography, and this is not implicated if it is drawn or computer-generated.

The Supreme Court theoretically could create new categories of unprotected speech if it was shown the founders intended such speech to be unprotected, but it is very hesitant to do so. (The Chaplinsky test is descriptive, not prescriptive.)

Commercial Speech

The Central Hudson elements for regulating commercial speech require that:

  1. The speech is lawful and not misleading (False speech is evaluated separately)
  2. The government regulation advances a substantial government interest
  3. The government objective is advanced directly by the regulation
  4. The regulation is not overly broad

Government employees' speech is not protected if it is within the scope of their employments or about personal matters at work.

You can be forced to pay for speech you disagree with if it is incident to a regulatory scheme or government speech.

Speech in criminal associations, like for conspiracies, is not protected.

Semi-protected Speech

For indecent speech, the interests of children and non-consenting adults is balanced against the speakers.

Defamation is semi-protected, but it is not tested on.

Commercial speech is semi-protected if the regulation is overly broad.

If speech is restricted based on its content in a nonpublic forum, the court will apply a reasonableness test. If it is a designated limited public forum, intermediate scrutiny or a reasonableness test is applied.

If a government employee speaks as a citizen or about a matter of public concern outside the scope of his work, a balancing test is applied.

Freedom of Association

Association can sometimes be protected, depending on how much the association is about speech and how important its speech is.

Student speech can be restricted if it interrupts school or if its content promotes certain viewpoints.

Campaign Contribution

Campaign contributions count as speech and are semi-protected.

If there is a coordination of expenditures with candidates for express advocacy, it is treated a contribution.

The purpose of limiting campaign contributions is to prevent corruption.

Protected Speech

Any speech that is not unprotected speech or semi-protected speech is protected speech and thus regulations of such speech are subject to strict scrutiny.

Examples include:

The message intended to be conveyed by the speech must be apparent on its face. It cannot just be said afterwards.

Content-Neutral Regulation

If a regulation on speech is neutral as to its content, it is allowed as long as it falls within one of three categories:

  1. Regulating the time, place, and manner of speech
    • Although it must comport with the forum analysis
  2. Expressive Conduct

    The government can regulate expressive conduct for its non-communicative impact. According to O'Brien, to do this, the regulation must:

    1. Be within the government's enumerated powers
    2. Further a substantial government interest
    3. Not be a pretext for regulating conduct
    4. Be a less restrictive means

    The expressive conduct doctrine only applies to non-serious criminal conduct.

    This conflicts with the free exercise doctrine.

  3. Secondary Effects

    If the government pretends to target the secondary effects of speech, but is really discriminating based on the content of speech, it will receive intermediate scrutiny.

    This usually comes up with regulations of adult businesses.

West Virginia State Board of Education v. Barnette

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.


There are four types of forums:

Public Forum

Public forums are basically streets, parks, and sidewalks. Plus property by long tradition devoted to assembly and debate.

Public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Unlimited Public Forum

Designated unlimited public forums are defined by government fiat.

Designated unlimited public forums receive intermediate scrutiny for content-neutral regulation and strict scrutiny for content-based regulation and viewpoint-based regulation.

Designated Limited Public Forum

Designated limited public forums are nonpublic forums designated for use by the public as a place for speech but limited to certain groups or subjects. Usually they are schools after hours.

Designated limited public forums receive intermediate scrutiny for content-neutral regulation, likely intermediate scrutiny for content-based regulation, and strict scrutiny for viewpoint-based regulation.

Nonpublic Forum

All public property that is not traditionally or designedly open for speech is a nonpublic forum.

Regulation on nonpublic forums is usually tested as to the reasonableness in light of the purposes for which the property is lawfully dedicated with great deference to the regulation. However, if it is view-point based, dicta indicates that strict scrutiny would be used.

Government Speech

Governments, through their employees, must engage in speech to execute their powers, however public employees also have First Amendment speech rights.

To resolve cases involving speech of government employees, courts look at three distinctions:

  1. Speaking as public employee or citizen
  2. Speaking about matters of public or private concern
  3. Speaking about matters within or outside the scope of employment

Depending on where the speech falls, the speech will either be afforded no protection or the government, employee, and public interests will be balanced to see if it should be protected.

The government is not allowed to penalize speech it disagrees with, but it is allowed to subsidize speech that it does agree with. (Though this contravenes Justice Jackson's statement in Barnette.)

  • But it cannot fund speech just for the diversity of different private viewpoints.
  • If it subsidizes everyone but a few people though, this will likely be found to be a penalty.

The government can also therefore discriminate, even based on viewpoint, in deciding who to hire to speak.