Memory tricks for constitutional law

Q: What does RAPPS stand for and explain the categories of unprotected speech?

A: RAPPS (Religion, Assembly, Petition, Press, Speech): the five freedoms guaranteed by the First Amendment. Speech: the most litigated. Protected speech includes offensive speech, hate speech, political speech, symbolic speech (flag burning — Texas v. Johnson). Unprotected categories: (1) True threats (serious expressions of intent to commit unlawful violence). (2) Incitement: speech directed to producing imminent lawless action and likely to produce it (Brandenburg v. Ohio — overturned the bad tendency test). (3) Obscenity: material that applies to prurient interest, is patently offensive under community standards, and lacks serious literary, artistic, political, or scientific value (Miller v. California three-part test). (4) Defamation: false statement of fact (with additional requirements for public figures — actual malice). (5) Fraud. (6) Child pornography. Religion: Establishment Clause (Lemon test, endorsement test, coercion test — courts use various frameworks); Free Exercise Clause (Employment Division v. Smith — neutral laws of general applicability upheld; but RFRA requires compelling interest for substantial burdens on religious practice).

Q: What does RSI stand for and explain the three levels of equal protection scrutiny?

A: RSI (Rational basis, Strict scrutiny, Intermediate scrutiny): the three tiers of equal protection and substantive due process review. Rational Basis (default): law upheld if rationally related to any legitimate government interest — court invents justifications, very deferential. Almost always upheld. Applies to: economic regulations, age, disability, sexual orientation (pre-Obergefell some courts applied this). Strict Scrutiny (highest): government must prove the law is necessary to achieve a compelling government interest AND narrowly tailored (least restrictive means). Applies to: suspect classifications (race, national origin, alienage) and fundamental rights (voting, interstate travel, privacy). Almost always struck down. Intermediate Scrutiny (middle): law must be substantially related to an important government interest. Applies to: gender classifications (Craig v. Boren) and legitimacy. The burden of proof shifts — government must justify the classification with exceedingly persuasive justification for gender (US v. Virginia).

Q: What is judicial review (MARBURY) and why is it significant?

A: MARBURY: the mnemonic for Marbury v. Madison (1803) — Chief Justice John Marshall established the power of judicial review, meaning federal courts can strike down laws that violate the Constitution. Facts: Marbury was appointed as justice of peace by outgoing President Adams but incoming Secretary of State Madison refused to deliver the commission. Marshall ruled the Judiciary Act of 1789 (which gave the Supreme Court power to issue writs of mandamus as original jurisdiction) was unconstitutional because it exceeded Article III's original jurisdiction. Significance: the Constitution is supreme law, and courts — not Congress — have the final word on what the Constitution means. This was a brilliant political move: Marshall gave up a small power (mandamus) to establish a massive power (judicial review). Not explicitly in the Constitution but now firmly established. Basis for all subsequent constitutional law.

Q: What does DEP stand for in the 14th Amendment and what is substantive due process?

A: DEP (Due Process, Equal Protection, Privileges or Immunities): the three clauses of the 14th Amendment's Section 1. Due Process has two forms: Procedural due process: before the government deprives you of life, liberty, or property, you must receive notice of the action and a meaningful opportunity to be heard. The extent of the hearing required is proportional to the interest at stake (Mathews v. Eldridge balancing test). Substantive due process: some rights are so fundamental that the government cannot infringe them regardless of the procedures used. Fundamental rights include: privacy (Griswold v. Connecticut — contraception), marriage (Loving v. Virginia — interracial marriage; Obergefell v. Hodges — same-sex marriage), reproductive choice (Roe v. Wade — now overruled by Dobbs v. Jackson, 2022), child-rearing. Non-fundamental rights get only rational basis review. The Dobbs decision returned abortion regulation to states, reigniting debate about which unenumerated rights are protected.

Q: What are the BIG 5 landmark constitutional cases and what did each establish?

A: Marbury v. Madison (1803): established judicial review — courts can strike down laws violating the Constitution. McCulloch v. Maryland (1819): established broad implied powers of Congress (elastic clause) and the Supremacy Clause — federal law trumps state law. Maryland could not tax the national bank. Necessary and proper means convenient and useful, not absolutely essential. Brown v. Board of Education (1954): struck down school segregation as a violation of the Equal Protection Clause — overturned Plessy v. Ferguson's separate but equal doctrine. Unanimous decision by Chief Justice Warren. Miranda v. Arizona (1966): established Miranda rights — before custodial interrogation, police must inform suspects of their right to remain silent, that statements can be used against them, and their right to an attorney. Roe v. Wade (1973, overruled 2022 by Dobbs): established constitutional right to abortion under substantive due process. Dobbs v. Jackson Women's Health (2022) overruled Roe and Casey, returning abortion regulation to states.