Constitutional Law Templates
The writing templates of this subject are presented in the following outline. The outline prioritizes practicality, offering context to clarify the relationships between templates and provide a clear framework.
Judicial Powers
In the interest of the separation of powers, the judiciary is limited to resolving justiciable disputes.
Is a case justiciable?
A case is justiciable if (1) the plaintiff has standing and the issue (2) is ripe, (3) not moot, and (4) not a political question.
Further, if the defendant of the case is a state, the matter must not violate the state’s sovereign immunity protected by the Eleventh Amendment.
Even if the case is justiciable, the court may choose to abstain from hearing a case.
6. Abstention
Legislative Powers
Congress’s may enact legislation under one or more of the following powers. When the legislative act is challenged, the issue often is whether the act exceeds the authority granted by the cited power.
Executive Powers
The act may be categorized as either (1) domestic or (2) foreign.
1. Domestic Powers
Is the President’s domestic act constitutional under:
- Pardon Power
- Veto Power
- Appointment Power
- Removal Power
- Emolument Clause
Is the domestic action within the:
- Scope of the Executive Powers
Does the domestic action violate the President’s:
- Duty to Faithfully Execute Laws
2. Foreign Powers
Is the President’s foreign action constitutional under the:
- Commander-in-Chief Power
- Treaties Power
- Executive Agreements Power
- International Affairs Power
States' Powers
Is the state action constitutional under the:
- Dormant Commerce Clause
- Privileges and Immunities Clause
- Limited Taxation and Commerce Power
Is the state action preempted by the:
- Supremacy Clause
Individual Rights
Problems concerning individual rights typically involve a government taking action that allegedly infringes upon an individual’s constitutionally protected rights. These actions may range from enforcing laws, regulations, or policies to specific acts by government officials or agents.
1. Does the government conduct constitute state action?
The analysis begins by identifying whether the governmental conduct constitutes state action. Only actions attributable to the government or its agents trigger constitutional protections.
2. Does the government conduct violate a protected right?
Once state action is established, determine whether the government action infringes on one or more constitutionally protected rights.
a. Freedom of Speech
In general, most forms of speech are protected under the First Amendment’s guarantee of freedom of speech. However, there are specific categories of speech that are not protected.
i. Protected Speech
The government may regulate protected speech if the regulation satisfies the required level of scrutiny, which depends on the type of restriction the regulation seeks to impose. The types of restrictions are as follows:
1. If the regulation restricts speech generally and irrespective of the forum, the analysis is:
2. Speech encompasses symbolic conduct (expressive speech), but if the regulation restricts symbolic conduct generally and irrespective of the forum, the analysis is:
3. If the regulation restricts time, place, or manner of speech (including symbolic conduct), the analysis is:
4. If the regulation prevents speech from occurring, the analysis is:
Even if a regulation falls within one of the above categories, it might still be held void for vagueness or overbreadth:
ii. Unprotected Speech
The government may regulate unprotected speech without being subject to the levels of scrutiny applied to protected speech. The categories of unprotected speech are as follows.
- Obscenity
- Defamation
- Fraud
- Incitement to Imminent Lawless Action
- Fighting Words
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