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Consti Memory Aid

This document summarizes several important legal doctrines and tests: 1. It outlines the Ashwander rules which establish principles for when the Supreme Court will rule on constitutional issues. 2. It describes the Lemon test and endorsement test which are used to determine if government actions violate the Establishment Clause regarding religion. 3. It explains the O'Brien test for determining if a regulation limiting symbolic speech is sufficiently justified. 4. It defines the clear and present danger test for seditious speech and the overbreadth and vagueness doctrines for invalidating statutes that restrict speech. 5. It provides an overview of the levels of scrutiny used in equal protection cases - strict scrutiny,

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99 views2 pages

Consti Memory Aid

This document summarizes several important legal doctrines and tests: 1. It outlines the Ashwander rules which establish principles for when the Supreme Court will rule on constitutional issues. 2. It describes the Lemon test and endorsement test which are used to determine if government actions violate the Establishment Clause regarding religion. 3. It explains the O'Brien test for determining if a regulation limiting symbolic speech is sufficiently justified. 4. It defines the clear and present danger test for seditious speech and the overbreadth and vagueness doctrines for invalidating statutes that restrict speech. 5. It provides an overview of the levels of scrutiny used in equal protection cases - strict scrutiny,

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© © All Rights Reserved
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Memory Aid

PRUDENTIAL /JURISDICTIONAL REQUIREMENTS


Ashwander Rules:
1.

2.

The Court will not determine the constitutionality of


legislation in non-adversarial proceedings; this pretty
much ended any hopes for "advisory" rulings from
the Court.
The Court will not anticipate a question of
constitutional law.

Whether the words used are used in such circumstances and


are of such a nature as to create a clear and present danger that
theyll bring about the substantive evils that Congress has a
right to prevent.
The term clear points to a causal connection with the danger of
the substantive evil arising from the utterance questioned.
Present refers to the time element. It used to be identified with
imminent and immediate danger. The danger must not only be
probable but very likely inevitable.

3.

The Court will not formulate a rule of constitutional


law which is broader than needed.

4.

The Court will not rule on constitutionality where


there is another ground for deciding the case.

5.

The Court will not determine a statute's


constitutionality unless a party has been injured by it.

1. it is within the constitutional power of the Govt

6.

The Court will not invalidate a statute at the request


of parties who have taken advantage of its benefits.

2. it furthers an important or substantial govtal interest

7.

The Court will always consider whether any


reasonable interpretation of a statute allows it to
avoid the constitutional issues.

THE RELIGION CLAUSES


Endorsement Test
Whether an objective observer, acquainted with the text,
legislative history, and implementation of the statute, would
perceive the governments action as a state endorsement of a
particular religion
Lemon Test
A government-sponsored message violates the Establishment
Clause of the First Amendment if:
(1) it does not have a secular purpose;
(2) its principal or primary effect advances or inhibits religion;
or

SYMBOLIC SPEECH
OBrien Test
A govt regulation is sufficiently justified if:

3. if the governmental interest is unrelated to the


suppression of free expression ; and
4. the incidental restriction on alleged freedoms of speech,
expression and press are no greater than is essential to the
furtherance of that interest
FACIAL INVALIDATION/ SPEECH
Overbreadth Doctrine A government purpose to control or
prevent activities constitutionally subject to regulation may
not be achieved by unnecessarily broad means that sweep into
and thereby invade the area of protected freedoms.
Void for Vagueness Doctrine whether a statute either
forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its
meaning
EQUAL PROTECTION CLAUSE
STRICT SCRUTINY

(3) it creates an excessive entanglement of the government


with religion

The challenged classification serves a compelling


state interest

Note: Lemon test is disjunctive, either an improper purpose or


an improper effect renders the ID Policy invalid under the
Establishment Clause

The classification is necessary to serve to that interest

SEDITIOUS SPEECH
Clear and Present Danger Test

MIDDLE-TIER SCRUTINY
-

The challenged classification serves an important


state interest

The classification is substantially related to serving


that interest

The statute in question passes the REASONABLENESS


TEST OF THE CLASSIFICATION.
(1) Must rest on substantial distinctions
(2) Must be germane to the purposes of the law
(3) Must not be limited to existing conditions only
(4) Must apply equally to all members of the same class
DUE PROCESS
POLICE POWER
-

Compelling reason for its exercise

Reasonable relation to the legitimate end

STRICT SCRUTINY
-

The law must further a compelling government


interest

The law must be narrowly tailored

PRESIDENTIAL COMMUNICATIONS PRIVILEGE:


-

Quintessential and non-delegable

Operational proximity

May only be overcome by compelling need to the


info; when theres no other alternative

PREREQUISITES IN INVOKING THE PRIVILEGE:


-

There should be a formal claim which must be


invoked by the President or through the Executive
Secretary by order of the President

Compelling reason for invoking such

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