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