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69 Cards in this Set
- Front
- Back
- 3rd side (hint)
Pervasive Entwinement |
Where there are pervasive connections between govt and private party, there is state action. |
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5th amendment due process clause |
Government cannot deprive person of life, liberty or property without due process of law. |
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14th amendment due process clause |
A state may not deprive a person of life liberty or property without due process of law.
14th amendment incorporates the bill of rights into the states. Example: violates 1st amendment as applied to the states through the due process clause of the 14th amendment. |
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Substantive due process steps |
1. Is it a fundamental right? 2. Determine test: ss, is, rb |
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Fundamental Rights - BFPs & TVs |
Bodily integrity, Family matters, Procreation, Travel, Voting |
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Procedural due process |
Govt can't deprive you individually of liberty or property without notice and a hearing |
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Requirements for a due process hearing |
Notice plus a meaningful opportunity to be heard |
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Bill of attainder |
The law can't punish an individual by name |
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Ex post facto clause |
The law can't make a crime out of a completed action that was legal when done or increase penalty for acting before the law |
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Contract clause |
State law can't impair existing contract obligation absent important public need |
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Takings Clause |
The government cannot take private property for public use without just compensation |
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14th amwndment Equal protection clause |
No state shall deny any person equal protection of the laws |
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Strict Scrutiny |
The distinction must be necessary for a compelling state interest
Suspect class, fundamental rights, MD: gender |
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Intermediate Scrutiny |
Distinction must be substantially related to an important interest Gender, illegitimacy |
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Rational Basis Review |
The distinction must be rationally related to a legitimate interest |
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When will affirmative action pass strict scrutiny |
A remedy for proven past discrimination or in higher education to achieve diversity |
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Privileges and immunities clause art 4 |
System may not deprive a cities of another state of the basic rights of citizenship. Owning property and making contracts, engaging in private employment |
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Lemon Test |
MD test for establishment clause. P- secular Legislative purpose E- primary effect not to advance or inhibit religion E- not cause excessive entanglement with religion |
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Establishment clause |
Congress shall make no law respecting the establishment of religion religion |
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Free exercise clause |
The government may not require into truth of belief but may ask about sincerity of belief. A generally applicable criminal law is constitutional even if it inhibits religious practice. BUT the law cannot single out religion. |
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Unprotected speech categories |
FIDO Fighting words, incitement to violence, defamation, obscenity |
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Low level protected speech |
Commercial speech, indecency |
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Fully protected speech |
Political, artistic, everything not un or low protected speech |
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Fighting words |
Unprotected speech.
Face to face words likely to incite immediate violence against speaker. OR "true threats" |
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Incitement to violence |
Unprotected speech Speech create clear and present danger of immediate lawless action against others. (More than advocacy) |
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Defamation (FIDO) |
Unprotected Speech Intentionally or negligently publishing a statement of fact concerning the plaintiff which is false and defamatory and proximately causes harm to the plaintiff's reputation
Public figures require actual malice. |
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Miller Obscenity |
Unprotected Speech-POV P- average person applying a contemporary community standard find work as a whole appeals to prurient interest. O- the work depicts sexual conduct in a patently offensive way V- the work as a whole that serious literary artistic political or scientific value |
POV |
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Regulation of Indecency |
Low level protected speech Can't stop adults from seeing indecency but can protect kids through zoning and broadcasting limits. |
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Central Hudson Test for Commercial Speech |
Low level protected speech. Can ban if illegal or misleading. Otherwise, can only regulate if: Substantial government interest, law directly advances interest, reasonable fit between ends and means. -can ban deceptive or intrusive attorney ads -cannot ban truthful ads for liquor prices |
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Content Based Regulation |
Regulation based on message or subject. Must review for viewpoint neutral or viewpoint based. |
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Content neutral regulation |
Regulation of fully protected speech where all speech is banned, regardless of content. |
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Traditional public forum |
Governmental property traditionally used for speech like parks or streets or land that is opened for expressive activity purpose |
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Limited public forum |
Governmental property created for general speech but limited to particular groups or particular topics |
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Non public forum |
Governmental property not a public forum like a military base, government office, public schools, public teachers mailbox. |
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Prior restraints |
Where the government silences speech before it occurs presume it's unconstitutional. More than mere threats, when they're actually preventing speech without a good reason. |
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Overbreadth |
Law is unconstitutional where it is substantially overbroad. This occurs when the law prohibits not only unprotected speech but too much protected speech as well |
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Vagueness |
Law must give a person of common intelligence notice of what is prohibited |
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Regulation of expressive conduct |
The government can't ban expressive conduct simply because they disagree with the message |
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2nd amendment |
The government cannot totally ban private possession of firearms but reasonable regulation is probably OK |
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Government employees |
Government cannot punish a government worker for speech on a matter of public concern unless it disrupts the office. The government can punish a government worker for a job related speech |
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Public forum+content based test |
Unconstitutional unless it passes strict scrutiny |
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Non public forum + content-based test |
Constitutional if reasonable considering the purpose of the property |
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LPF + CB + VN |
Constitutional if it is reasonable considering the purpose of the property |
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Public forum + content-neutral |
Constitutional as a time place and manner restriction if it is narrowly tailored to serve an important government interest in these an alternative means to communicate. Not constitutional if the fee is based on the cost of crowd control |
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Non public forum + content-neutral |
Constitutional if it is reasonable considering the purpose of the property. presumed constitutional |
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Limited public forum + content-neutral |
Constitutional if it is reasonable considering the purpose of the property |
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State police power |
States do not need a source of power to act |
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Supremacy Clause |
Where there is a conflict between the federal and state governments the federal government trumps |
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Proof of standing for federal court |
Actual, redressable injury that is personal, concrete and particularized and fairly traceable to the government |
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Ripeness |
A party may only bring suit when an injury has occurred or is likely to occur and there is a substantial likelihood of prosecution by the government if you violated the law you're challenging. |
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Mootness |
The claim must be alive throughout the case, including appeal. Exception: where the injury is capable of repetition yet evading review. |
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Political Question |
And issues that is not for the courts but for the President or Congress such as impeachment expelling a House member amending the Constitution terminating a treaty |
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Congressional Powers |
Congress must find their source of power before they may act. |
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Commerce Clause |
Congress has the power to regulate trade that is interstate or international and the Indian tribes Interstate= anything between states and local activities with a substantial effect on interstate commerce. Congress cannot make a state pass a state law or make state employees enforce a federal law. |
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Taxing Power |
Taxes are constitutional if they're designed to raise revenue but not if they're designed solely to regulate |
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Spending power |
Congress can spend money for the general welfare but cannot regulate for the general welfare. |
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Imposing conditions for federal funds |
Uder the Spending power, Congress can impose conditions on states in exchange for federal funds if reasonably related to federal interests and pressure not corrosion |
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Enforcing the thirteenth fourteenth and fifteenth amendments |
Congress may only enforce these amendments not create new rights |
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Congressional immunity |
Speech and debate: the legislature is not liable for legislative acts or speeches on the floor of the House or Senate applies to the Legislature and their aides. The legislator is still liable for speeches off the floor such as press conferences |
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11th amendment |
Limits the ability of Congress to pass laws that let private individuals sue a state for money (except for violation of EP) |
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Dormant Commerce Clause |
The dormant Commerce Clause grants Congress the sole authority to regulate interstate commerce and limits the state's ability to do so through geographic discrimination or placing substantial burdens
Note: Congress can authorize state discrimination
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DCC- Geographic Discrimination |
When regulating interstate commerce, a state may not discriminate based on geography (against out of state commerce) unless there is a compelling/important governmental interest and no non-discriminatory alternative is available to achieve this interest |
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Market participant doctrine |
Where the state buys and sells its own own property it can discriminate like other private buyers or sellers and the dormant Commerce Clause does not apply. However, states cannot hoard their natural resources. |
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1st amendment free association clause |
Limits the government's ability to regulate association with persons of one's choosing absent the involvement of some illegality. Special SS applies |
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Damages in constitutional violation |
Seek declaratory judgments that the statute is unconstitutional and injunctive relief to enjoin future enforcement. |
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DCC - Substantial burden |
When regulating interstate commerce a state statute may not substantially burden interstate commerce unless it is an important government interest |
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Commercial Speech |
Speech that does nothing more than propose a commercial transaction. False or misleading commercial speech is not constitutionally protected |
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SS for Freedom of association |
The limit on association must be necessary to serve a compelling state interest unrelated to the suppression of ideas and must leave an alternative means to communicate. |
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Check, List |
Check: state action, standing, clues, remedy
List: Equal protection, due process, speech, religion, commerce clause, vagueness, over-breadth, other |
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