OK Bar OK Bar Constitutional Law 4 — Questions and Answers
Question 1: Under the Dormant Commerce Clause, a state law that discriminates against interstate commerce on its face will be upheld only if:
- It serves a legitimate local purpose that cannot be achieved through non-discriminatory alternatives (Correct answer)
- It passes rational basis review
- It is narrowly tailored to serve a compelling government interest
- The state legislature made an express finding of necessity
Correct answer: It serves a legitimate local purpose that cannot be achieved through non-discriminatory alternatives
Facially discriminatory state laws are subject to a near-per-se rule of invalidity and will only survive if the state shows a legitimate local purpose with no nondiscriminatory alternatives.
Question 2: The Privileges or Immunities Clause of the Fourteenth Amendment, as interpreted after the Slaughterhouse Cases, protects:
- Rights of national citizenship, such as access to federal offices and interstate travel (Correct answer)
- All fundamental rights recognized at common law
- The same rights protected by the Privileges and Immunities Clause of Article IV
- Any right deemed essential to ordered liberty by the Supreme Court
Correct answer: Rights of national citizenship, such as access to federal offices and interstate travel
After Slaughterhouse Cases (1873), the Fourteenth Amendment's Privileges or Immunities Clause was narrowly interpreted to cover only rights of national citizenship, not the broad set of civil rights.
Question 3: A law conditioning a government benefit on the recipient's agreement not to engage in constitutionally protected speech is best analyzed under which doctrine?
- Unconstitutional conditions doctrine (Correct answer)
- Prior restraint doctrine
- Vagueness doctrine
- Overbreadth doctrine
Correct answer: Unconstitutional conditions doctrine
The unconstitutional conditions doctrine prohibits the government from conditioning a benefit on the waiver of a constitutional right it could not otherwise abridge directly.
Question 4: Which standard applies when a state law regulates commercial speech?
- The Central Hudson four-part test requiring a substantial government interest and reasonable fit (Correct answer)
- Strict scrutiny because speech is a fundamental right
- Rational basis because commercial speech receives no First Amendment protection
- Intermediate scrutiny balancing the government interest against speaker autonomy
Correct answer: The Central Hudson four-part test requiring a substantial government interest and reasonable fit
Central Hudson Gas v. Public Service Commission established a four-part test: the speech must concern lawful activity and not be misleading, the government interest must be substantial, the regulation must directly advance that interest, and must be no more extensive than necessary.
Question 5: Under the Establishment Clause, the Lemon test requires that a government action:
- Have a secular legislative purpose, neither advance nor inhibit religion, and avoid excessive entanglement (Correct answer)
- Be religiously neutral and have a compelling secular justification
- Treat all religions equally without preference for any denomination
- Survive strict scrutiny as applied to religious minorities
Correct answer: Have a secular legislative purpose, neither advance nor inhibit religion, and avoid excessive entanglement
Lemon v. Kurtzman (1971) established the three-pronged Lemon test: secular purpose, primary effect that neither advances nor inhibits religion, and no excessive government entanglement with religion.
Question 6: The Eleventh Amendment bars suits in federal court against a state by:
- Citizens of another state or foreign nation, absent the state's consent or congressional abrogation under Section 5 of the Fourteenth Amendment (Correct answer)
- Any private party, including citizens of that state, for any reason
- Federal agencies seeking to enforce federal regulations against the state
- Foreign governments asserting treaty-based claims
Correct answer: Citizens of another state or foreign nation, absent the state's consent or congressional abrogation under Section 5 of the Fourteenth Amendment
The Eleventh Amendment bars suits by citizens of other states or foreign nations against a state in federal court, but states may consent to suit or Congress may abrogate immunity via valid Section 5 legislation.
Question 7: A city ordinance requires all parades to obtain a permit from the mayor, who has absolute discretion to deny permits. This ordinance is most likely unconstitutional because it:
- Constitutes an impermissible prior restraint that vests unfettered discretion in a government official (Correct answer)
- Violates equal protection by allowing selective enforcement
- Is void for vagueness because the denial standard is undefined
- Conflicts with the Petition Clause of the First Amendment
Correct answer: Constitutes an impermissible prior restraint that vests unfettered discretion in a government official
An unbounded licensing scheme for expressive activity is an unconstitutional prior restraint because it gives officials unlimited discretion to suppress speech based on content or viewpoint.
OK Bar OK Bar Constitutional Law 4
Under the Dormant Commerce Clause, a state law that discriminates against interstate commerce on its face will be upheld only if: