Con Law Ii Mcmillian Set 2

Front 1

What is the three factor test of Mathews v. Eldridge (1976)?

Back 1

1 - The private interest that will be affected by the official action;
2 - The risk of erroneous deprivation of such interest and the probable value of additional procedural safeguards; and
3 - The Government’s interest.

Front 2

What is meant by procedural due process?

Back 2

- Procedural due process guarantees a proper process before a person can be deprived of a protected interest in life, liberty, or property.

Front 3

What two questions underlie procedural due process analysis?

Back 3

1. What constitutes a life, liberty, or property interest that cannot be taken away by government w/o due process of law?
2. Once due process is required, what sort of notice and opportunity to be heard constitutes due process?

Front 4

For procedural due process purposes, explain the difference in treatment between welfare benefits and disability benefits.

Back 4

The court in Mathews held that a deprivation of disability benefits is a hardship less substantial than that imposed on a welfare recipient. A deprivation of disability benefits could render a worker “unable to engage in substantial gainful activity” and unable to ameliorate his loss for a period between cutting off benefits and the hearing is a substantial hardshipage However, the Mathews court held the hardship on a welfare recipient is greater under the holding in Goldberg because a deprivation of welfare benefits would deprive the recipient of the “very means to live.”

Front 5

What is meant by the bitter with the sweet" approach?"

Back 5

"bitter with the sweet" What the legislature giveth, the legislature may also taketh away.

When the legislature creates a substantive right, it may also limit that right by defining the process for its removal.

Rehnquist’s reasoning in Arnett

Front 6

Distinguish Board of Regents v. Roth (1972) and Perry v. Sinderman (1972).

Back 6

Although Board of Regents v. Roth is similar to the facts in Perry v. Sindermann in that the employees did not have a contract with their employer, the cases are distinguishable. In Perry, the court found a protected property interest because the school implied that professors have tenure under certain conditions. No such property interest was found in Roth because there must have more than a unilateral expectation- a legitimate claim of entitlement based on state law or other source.

Front 7

Name four fundamental but unwritten constitutional rights established by the Supreme Court.

Back 7

Marriage
Sexual Relations
Abortion
Child rearing

Front 8

What are three major components to the right to travel?

Back 8

1. The right to enter and leave a sister State;
2. The right to be treated as a welcome visitor rather than an unfriendly alien; and
3. The right of a new citizen to be treated the same as other citizens of the State.

Front 9

Explain John Marshall's view as to whether the provisions of the Bill of Rights applied to state governments.

Back 9

John Marshall did not believe that the provisions of the Bill of Rights applied to the state governments. The great revolution that gave rise to the constitution lead to great fear of a large, powerful federal government, and thus great restrictions were placed on federal power, not on local governments. Had the citizens of the individual states felt the need for additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and would have been applied themselves. (i.e., they would have put them in their own constitutions)

Front 10

What three major limits did the 14th Amendment put on state power?

Back 10

1. No state may “abridge the privileges or immunities of citizens of the United States, nor
2. deprive any person of life, liberty, or property, without due process of law; nor
3. deny to any person within its jurisdiction the equal protection of the laws.

Front 11

How did the Court in the Slaughterhouse Cases (1873) assess the scope of the Privileges and Immunities Clause of the 14th Amendment?

Back 11

The court focused on the fact that the 14th amendment specifically began by distinguishing between citizenship of the united states and citizenship of an individual state, and then went on to state that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” – thus implying that a state could abridge privileges or immunities of citizens of a state. (pg.455)

It only applies to the privileges and immunities of the citizens of the U.S., and NOT to the privileges and immunities of a citizen of the State. (450-451)

Therefore, cannot be a source of incorporation of bill of rights.

Front 12

What justice in what case wrote the following: But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."?"

Back 12

Justice Holmes dissenting in Lochner v. New York.

Front 13

What is total incorporation?

Back 13

Total incorporation is the view that the Fourteenth Amendment makes the Bill of Rights applicable to the states just as they are applied to the federal government. Justice Black believed that the Fourteenth A's purpose was to extend to all the people of the nation the complete protection of the Bill of Rights.

Front 14

What is selective incorporation?

Back 14

Selective incorporation is the view that only certain aspects of the first eight amendments are applicable to the states, when if denied would be a denail of due process.

Front 15

What substantive due process right did the Court in Lochner v. New York (1905) rely on in striking down a maximum hours law on bakers?

Back 15

The right to contract for hours of employement.

Front 16

What happened in the Dred Scott (1857) case?

Back 16

The Court held that slaves were property and had no constitutional rights as citizens. The decision forced the return of Dred Scott to his “owner.”

Front 17

Which constitutional amendment overruled the Dred Scott (1857) decision?

Back 17

14th

Front 18

What provisions of the first eight amendments have not been incorporated into the 14th Amendment?

Back 18

3rd Amendment rights against quartering of soldiers (except in the 2nd Circuit)
5th Amendment right to an indictment by a grand jury, and
7th Amendment right to a jury trial in civil cases

Front 19

How would the majority in the Slaughterhouse Cases (1873) view the concept of substantive due process?

Back 19

The Slaughterhouse court’s view of the Fourteenth Amendment was that it was only intended to overrule Dred Scott and that the privileges and immunities clause is redundant - it does not create a federal limitation upon the states’ ability to invade the liberties of its residents. Therefore, the court would not strike down a state law that contravenes a right otherwise recognized by the federal government. Similar to Marshall’s opinion in Barron.

Front 20

What is substantive due process?

Back 20

Substantive due process is simply the major doctrinal part of a larger constitutional enterprise of judicial protection of fundamental unwritten rights. Substantive due process protects certain unemunerated and fundamental rights from government interference without compelling justification.

Front 21

What is the present test for assessing the constitutionality of abortion restrictions?

Back 21

Casey: state may not place an undue burden on mothers seeking a pre-viability abortion. After viability, state may proscribe abortion except when necessary for the health of the mother.

Front 22

Describe the trimester framework established in Roe v. Wade (1973).

Back 22

1st trimester, a woman may choose to have an abortion “free of interference by the state”

2nd: to promote health of the mother, State may regulate abortion in ways “reasonably related to maternal health.”

3rd: state may regulate and even entirely proscribe abortion except for the preservation of the life or health of the mother

Front 23

What justice in what case wrote the following: The Court's statement that it is 'tempting' to acknowledge the authoritativeness of tradition in order to 'curb the discretion of federal judges' is of course rhetoric rather than reality; [t]he Court's temptation [is] towards systematically eliminating checks upon its own power; and it succumbs."?"

Back 23

Justice Scalia wrote this in his dissenting opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

Front 24

What case firmly established that there exists a right to privacy in the Constitution?

Back 24

Griswold v. Connecticut, (1965) married couple wanted to use birth control.

Front 25

What case established that spousal consent laws for abortion were unconstitutional?

Back 25

Planned Parenthood v. Danforth (1976).

Front 26

What abortion restriction did the Court strike down in Casey v. Planned Parenthood of Southeastern Pennsylvania (1992)?

Back 26

Spousal notification

Front 27

What abortion restrictions did the Court uphold in Casey v. Planned Parenthood of Southeastern Pennsylvania (1992)?

Back 27

1. Informed consent
2. 24-hour waiting period
3. Parental consent for minors
4. Facility reporting requirements

Front 28

Explain the importance of the point of viability to abortion law.

Back 28

It is when the state’s interest in potential life becomes “compelling.” Before this point, a state may not place an undue burden on a woman seeking abortion. After this point, a state may completely proscribe it.

Front 29

What constitutes an undue burden of the right to abortion?

Back 29

One that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

Front 30

Does Casey v. Planned Parenthood of Southeastern Pennsylvania (1992) overrule Roe v. Wade (1973)? Why or why not?

Back 30

The court says the principles Roe are still intact in that the legitimacy of a State’s interests in protecting the health of the mother and the potential human life must be weighed against the woman’s right to privacy; however, the test for doing so was altered by Casey. Roe analysis was dependent upon the trimester framework—that was altered in Casey to simply a consideration of fetal viability.

Front 31

On what basis did Justice Douglas conclude in Griswold v. Connecticut (19 65) that a right to privacy is found in the Constitution?

Back 31

Justice Douglas found various constitutional guarantees created zones of privacy: (1) the right of association contained in the penumbra of the First Amendment; (2) the Third Amendment right prohibiting the quartering of soldiers without the consent of the owner is a facet of privacy; (3) the Fourth and Fifth Amendments protect against all governmental invasions “of the sanctity of a man’s home and the privacies of life”; and (4) the Ninth Amendment says that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other retained by the people.

Front 32

Explain the different results in Stenberg v. Carhart (2003) and Gonzalez v. Carhart (2007).

Back 32

In Stenberg, the statute was worded so broadly that it banned all dilation and extraction procedures (whether ripping the baby apart or where the babies’ brains are sucked or crushed out) and it did not have an exception for the health of the mother. In Gonzalez, only intact d&e’s were banned, and Congress relied on specific (though contested) medical evidence that intact D&E’s would be unnecessary for the health of the mother. It may also be explained by the fact that Alito replaced O’Connor.

Front 33

What landmark abortion decision contained a joint opinion in which three justices took shared responsibility for writing the opinion?

Back 33

Planned Parenthood v Casey

Front 34

How did Eisenstadt v. Baird (1972) extend Griswold v. Connecticut (1965)?

Back 34

Eisenstadt v. Baird extends Griswold v. Connecticut beyond the marital community, giving single individuals the right to contraceptives. (page 493)

Front 35

Explain whether a state ban on the use of public employees and facilities to perform or assist abortions not necessary to save the mother’s life is constitutional.

Back 35

It is constitutional because the Constitution doesn’t obligate a state to pay for medical care of indigent and in this instance the state is not banning abortion. (page 496-497)

Front 36

Is the abortion gag rule an unconstitutional condition? Why or why not?

Back 36

It is constitutional because “the government is not denying a benefit to anyone.” Though the state my not penalize the exercise of a right, it may refrain from subsidizing it.

Front 37

Explain the basis for Justice Black's dissent in Griswold v. Connecticut (1965).

Back 37

He finds no constitutional protection of “privacy” and rejects the penumbra argument.

Front 38

What justice in what case wrote the following: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer”?

Back 38

Judge Blackmun for the majority, Roe v. Wade (page 490)

Front 39

What is partial birth abortion?

Back 39

Partial-birth abortion is an abortion in which the person performing the abortion (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered fetus. (Supplement page 66)

Front 40

Are corporations considered persons" for purposes of the 14th Amendment?"

Back 40

Yes. See Santa Clara v Southern Pacific p. 494. In the Santa Clara case, SCOTUS did not rule, but issued an opinion, and that later became cited and entered precedent status. Over time, corporations got all three provisions under the 14th A.

Front 41

Who is Mildred Loving?

Back 41

Black wife of a white husband in Loving v. VA

Front 42

What was the holding in Cruzan v. Director, Missouri Department of Health (1990)?

Back 42

A state may require a surrogate to prove by “clear and convincing evidence” that a patient wishes to be removed from life support before a doctor may comply.

Front 43

What standard of review applies to laws banning assisted suicide?

Back 43

Rational basis

Front 44

What substantive due process right did the Court assume existed in the deciding Cruzan v. Director, Missouri Department of Health (1990)?

Back 44

The right to refuse life-saving hydration and nutrition

Front 45

What case reversed Bowers v. Hardwick (1986)?

Back 45

Lawrence v. Texas (page 546)

Front 46

Explain how Justice O’Connor reached different outcomes in Bowers v. Hardwick (1986) and Lawrence v. Texas (2003)?

Back 46

Justice O’Conner reached different outcomes in Bowers and Lawrence because she found that there was sufficient evidence that the law in Lawrence applied only to homosexuals, which is an illegitimate objective, whereas the law in Bowers applied equally regardless of sexual orientation. (page 554)

Front 47

What justice in what case wrote the following: “To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere…the right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries”?

Back 47

Justice Kennedy for the majority in Lawrence v. Texas (page 546)

Front 48

What substantive due process right is at issue in Moore v. City of East Cleveland (1977)?

Back 48

Freedom of personal choice in matters of marriage and family life

Front 49

In justice O’Connor’s concurrence in Cruzan v. Director, Missouri Department of Health (19 90), what issue does she emphasize remains undecided?

Back 49

The court did not decide “whether a state must also give effect to the decisions of a surrogate decision maker.” (page 529)

Front 50

According to Washington v. Glucksberg (1997), where should courts look when determining whether a right is fundamental under substantive due process?

Back 50

Courts should look at whether the rights and liberties are fundamental rights “deeply rooted in this Nation’s history and tradition.”

Front 51

Describe the four-part analysis involved in assessing alleged infringements of individual rights.

Back 51

1) Is a fundamental right at issue?
2) Is the right infringed?
3) Is there a sufficient justification for the law?
4) Are the means sufficiently related to the ends?

Front 52

What critical distinction underlies the Court's result in Vacco v. Quill (1997)?

Back 52

The distinction between withdrawing life support and assisting suicide

Front 53

Explain what Justice Scalia believes to be the ultimate salvation" against the enforcement of unreasonable laws."

Back 53

Equal Protection Clause

Front 54

Is suicide a constitutional right? Explain.

Back 54

Suicide is Probably, but not assisted suicide no.

The questions in Cruzan were
(1) that the surrogate had to present evidence in a clear and convincing manner whether the patient wanted to use thier
(2) "Constitutionally protected right to refuse lifesaving hydration and nutrition" because it was akin to medical battery - an invastion on thier right to life and privacy.

But Glucksberg concerned a ban on assisted suicide, and the ban was constitutional.

The question whether there is a constitutional right to commit suicide was not presented specifically in either case, but both cases implied a right probably exists but ther person must commit suicide without help.

Front 55

What liberty interest did the Court recognize in Pierce v. Society of Sisters (1925)?

Back 55

“The liberty of parents and guardians to direct the upbringing and education of children under their control.” p. 524

Front 56

What is the specific holding of Washington v. Glucksberg (1997)?

Back 56

The Court held that the right to assisted suicide is not a fundamental liberty interest protected by the Due Process Clause since its practice has been, and continues to be, offensive to our national traditions and practices. Moreover, employing a rationality test, the Court held that Washington's ban was rationally related to the state's legitimate interest in protecting medical ethics, shielding disabled and terminally ill people from prejudice which might encourage them to end their lives, and, above all, the preservation of human life.

Front 57

What justice in what case wrote the following: State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices."?"

Back 57

Scalia: Lawrence v Texas

Front 58

What test for determining the validity of regulations affecting the right to marry does the Court describe in Zablocki v. Redhail (1978)?

Back 58

If a regulation “directly and substantially” interferes with the decision to marry, the state must show a compelling interest.

Front 59

Explain the importance of Footnote 4 from Carolene Products.

Back 59

Carolene Products "Footnote Four," is "the most famous footnote in constitutional law" because The Court introduces when heightened scrutiny might apply when:
1) legislation targets a discrete and insular minorities who lack normal protections of the political process,
2) legislation facially violates provisions in the Constitution
3) and legislation distorts the political process. The Court used heightened scrutiny for the first time in Korematsu, and still got that case wrong.

Front 60

What standard of review is used for judging the constitutionality of classifications based on mental disability?

Back 60

Rational basis

Front 61

Explain the process of means-end analysis in equal protection law.

Back 61

means-ends scrutiny has three parts. (1)the scrutiny of the gorvernmetn interest (the ends) and (2) scrutiny of the effectiveness of themeans chosen by the government to further their interests (means) and (3) soemtimes there is a scrutiny of lest restrictive methods (least restrictive means). The level of scrutiny used determines allowable temporal distance between means and ends. Higher scrutiny results in shorter distance between ends and means. Vice versa for lower scrutiny.

Front 62

Through what constitutional provision is the federal government obligated to provide equal protection?

Back 62

5th Amendment Due Process Clause

Front 63

What’s the difference between a suspect class and a quasi-suspect class?

Back 63

race versus gender. Suspect class get strict scrutiny. Quasi-suspect class gets intermediate scrutiny. Suspect class is based on: 1. immutable traits 2. history of purposeful unequal treatment and 3. perennial lack of access to political power. Quasi-suspect lack at least one of these prongs.

Front 64

What are the three suspect classifications for equal protection purposes?

Back 64

Race;
Ethnicity or national origin; and
Lawful resident alienage

Front 65

What is reverse incorporation?

Back 65

In reverse incorporation, the Equal Protection Clause of the Fourteenth Amendment has been held to apply to the federal government through the Due Process Clause located in the Fifth Amendment. Decided by Bolling v Sharpe which was decided the same day as Brown and desegregated DC schools under the 5th Amendment.

Front 66

What are the three ways for a statute to be intentionally discriminatory?

Back 66

1. Facially discriminatory classifications;
2. Neutral classification applied in a discriminatory fashion;
3. Neutral classifications motivated by discrimination that produce a discriminatory effect

Front 67

What case overruled Plessy v. Ferguson (1896) in regards to public education?

Back 67

Brown v. Board of Education of Topeka

Front 68

What justice in what case wrote the following: A military order, however unconstitutional, is not apt to last longer than the military emergency. [But] once a judicial opinion [rationalizes] the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial [discrimination]. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need."?"

Back 68

Justice Jackson in Korematsu v. United States

Front 69

What case banned the practice of segregation in public education for schools located in the District of Columbia?

Back 69

Bolling v. Sharpe. Bolling was decided the same day as Brown, but under 5th Amendment Due Process Clause, not the EPC of the 14th, like Brown. The Bolling holding set up the reverse incorporation theory where the Equal Protection Clause of the 14th Ammendment applied through the 5th Amendments Due Process Clause.

Front 70

What are Jim Crow laws?

Back 70

They mandated de jure segregation in all public facilities, with a separate but equal" status for black Americans and members of other non-white racial groups."

Front 71

What was the vote in Brown v. Board of Education of Topeka (1954)?

Back 71

9-0

Front 72

Explain the importance of Washington v. Davis (1976).

Back 72

established that facially neutral laws that have a racially discriminatory effect, but that were not adopted to advance a racially discriminatory purpose, are not invalid under the United States Constitution.

So, in addition to proving a discriminatory effect, a plaintiff must prove discriminatory motive on the state actor's part to receive redress under the constitution.

Verbal tests for DC Cops sued under DPC of 5th A (without the use of 14ths EPC because it was DC).

Front 73

Name three factors that are used to determine whether a particular class of individuals qualifies as a suspect class.

Back 73

1) immutable traits,
2) history of purposeful unequal treatment,
3) perennial lack of access to political power

Front 74

What standard of review does the Court apply to a classification aimed at homosexuals in Romer v. Evans (1996)?

Back 74

“Mere rationality” review

Front 75

What justice in what case wrote the following: [In] view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is colorblind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. [It] is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.""

Back 75

Justice Harlan "The Great Dissenter" in Plessey v. Ferguson

Front 76

What are three ways of determining a law’s purpose in equal protection analysis?

Back 76

1. legislature’s stated purpose,
2. actual purpose,
3. or any conceivable purpose

Front 77

What specific application of the gun control law at issue in District of Columbia v. Heller (2008) served as the basis for the constitutional challenge?

Back 77

The carrying of a firearm in the home without a license and fully assembled.

Front 78

What was the holding in District of Columbia v. Heller (2008)?

Back 78

“[We] hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does the prohibition against rendering any lawful firearm in the home operablefor the purpose of immediate self-defense.” (page 203)

Front 79

How many justices recognized that there was an individual right to bear arms in District of Columbia v. Heller (2008)?

Back 79

5

Front 80

What is the prefatory clause of the 2nd Amendment?

Back 80

The prefatory clause (“A well regulated militia being necessary to the security of a free State”) ---Collective right

Front 81

What is the operative clause of the 2nd Amendment?

Back 81

The operative clause (“the right of the People to keep and bear arms shall not be infringed”). ---Individual right

Front 82

How did Plyler v. Doe (1982) alter the typical rational basis test?

Back 82

The Court required the Texas law barring K-12 immigrant children to its public schools to be rationally related to a "substantial" vs a "legitimate" state interest. Immigration status moved from rational basis to intermediate scrutiny. (So far, it only apples to resident alien status for K-12 children).

Front 83

What case established separate but equal" as constitutional under the Equal Protection Clause

Back 83

Plessey v. Ferguson

Front 84

Explain the differing uses of Brown v. Board of Education of Topeka (1954) by the plurality and dissent in Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

Back 84

The plurality views Brown as standing for the idea of non-discrimination on the basis of race. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Kennedy.

The dissent views Brown as a promise of integrated primary and secondary schools. The dissent would use race to ensure integration.

Front 85

What does unitary status mean?

Back 85

A unitary school system is one in which the school district has eliminated the old racially segregated dual school system. Seven factorsmeasure unitary status:
1. Extracurricular Activities
2. Transportation
3. Administrative Staff Assignment
4. Relative Quality of Education
5. Faculty Assignment
6. Facilities and Resources
7. Student Assignment

Front 86

If Grutter v. Bollinger (2003) were decided today, would the result be the same? Why or why not?

Back 86

It would not be the same because there is a push to phase out Affirmative Action in higher education admissions. Grutter was a 5-4 holding holding "student body diversity is a compelling state interest that can justify the use of race in university admissions, so long as other factors were used and an individual analysis of applicants took place. In 2014, Schuette v Coalition to Defend Affirmative Action, the Court held that states can vote affirmative action in or out. While the ruling was not specifically about whether state universities can voluntarily consider race in their admissions process, the momentum is behind the end being less than 25 years.

Front 87

According to Justice Powell in Regents of the University of California v. Bakke (19 78), what is a permissible goal for institutions of higher education in considering race in their admissions decisions?

Back 87

A university could use race as "part" of the admissions process but QUOTAS specifically for minority applicandidates was unconstitutional.

Front 88

What case established strict scrutiny as the standard of review for equal protection challenges against the federal government?

Back 88

Adarand Constructors, Inc. v. Pena --federal government's practice of awarding construction contracts to minority companies because there were other narrower alternatives was unconstitutional.

Front 89

According to the Court in Parents Involved in the community Schools v. Seattle School District No. 1 (2007), what are two recognized interests that qualify as compelling in assessing the use of racial classifications in the secondary school context?

Back 89

Remedying the effects of past intentional discrimination ( as in Brown)

Racial diversity in higher education (as in Grutter)

Front 90

What is a less restrictive alternative?

Back 90

A race-neutral alternative

Front 91

What are the two differing views of the relationship between equal protection and race?

Back 91

Equal protection gets a rational basis analysis by default, unless race or other suspect classes are present, and then the default becomes strict scrutiny analysis.

Front 92

What drafting mistakes did the drafters of the plan at issue in the City of Richmond v. J.A. Croson Co. (1989) make that undermined the city’s argument that its plan had a specific remedial purpose?

Back 92

The city failed to identify both the need for remedial action and that other non-discriminatory remedies would be insufficient.

Front 93

In City of Richmond v. J.A. Croson Co. (1989), how many justices agree that local governments may take race-conscious steps to remedy past discrimination?

Back 93

6

Front 94

What justice in what case wrote the following: “In order to get beyond racism, we must first take account of race. There is no other way. An in order to treat some persons equally, we must treat them differently”?

Back 94

Blackmun in Regents of the University of California v. Bakke

Front 95

What justice in what case wrote the following: “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”?

Back 95

Roberts in Parents Involved in Community Schools v. Seattle School District No. 1

Front 96

What justice’s opinion in Regents of the University of California v. Bakke (1978) served as a subsequent model for universities in designing their admissions policies?

Back 96

Powell

"POW! WELL race was permissible as one of several admission criteria, but not outright quotas for blacks.

Front 97

According to the Court in Grutter v. Bollinger (2003), when should the use of racial preferences for law school admission no longer be necessary?

Back 97

We expect that 25 years from now, the use of racial preference will no longer be necessary."" 2028

Front 98

What three broad questions frame the debate among the justices in the affirmative action cases?

Back 98

What level of scrutiny?
What are permissible justifications?
What are permissible approaches?

Front 99

Explain the anti-subordination view of race and equal protection.

Back 99

The goal of the 14th Amendment was to correct the effects of past racial discrimination.

Anti-subordination view
perfectly acceptable, even desirable,
to treat people differently due to race
if it will help them overcome
the obstacles faced
because of race.

Front 100

Explain whether racial imbalance in public schools violates the Equal Protection Clause.

Back 100

Racial balancing imposes racial proportionality & violates the equal protection guarantee because the Government must treat citizens as individuals not as components of a class. Plus, the definition of diversity shifts as a districts demographics shift.

Front 101

According to Justice O'Connor in Adarand Constructors, Inc. v. Pena (1995), what three general propositions exist with respect to governmental racial classifications?

Back 101

Skepticism, Consistency and Congruence.

SKEPTICISM because racial or ethnic criteria must be met viewed with skepticism.
CONSISTENCY because all races are reviewable under EPC.
CONGRUENCE because EPC in 14th is same as 5th Amendments.

Front 102

What does it mean to allow the use of race in college admissions decisions as a plus factor?

Back 102

It is a holistic individual review of the applicants file, giving consideration to all the ways an applicant might contribute to diverse educational environment, including race. It can't make race the defining feature of the application.

Front 103

What standard of review is used to determine the validity of gender based classifications under the Equal Protection Clause?

Back 103

Intermediate standard of judicial review

Front 104

How is Sosna v. Iowa (1975) distinguishable from Shapiro v. Thompson (1969)?

Back 104

In SOSNA v IOWA the appellant was delayed, not denied a divorce. The state interest is high enough in divorces because the state must also deal with property rights, child support, and custody - all consequences of divorce that increased the state's interest.

Divorce was unlike the voting, medical care, and welfare benefits cases like SHAPIRO where the courts found that the only interests the States had was budgetary considerations and record keeping.

SHAPIRO also established a fundamental right to travel. CT's purpose of denying welfare to new arrivals was to inhibit needy from traveling there. This was an unconstitutional "chilling effect" on travel.

Front 105

For equal protection purposes, when is a right or interest deemed fundamental?

Back 105

Fundamental rights are specifically identified in the Constitution, the Bill of Rights, or have been found "deeply rooted in this Nation's history and tradition"

like the right to (opposite sex marriage), privacy, procreation, contraception, and travel.

When a fundamental right is denied to some individuals but not others, it is an issue of equal protection and is held to strict scrutiny.

SCOTUS has not yet found a fundamental right to marry for same sex couples, and it still might not, but there are a lot of cases in the lower courts that are framed to get to that issue.

Front 106

Why are gender classifications subjected to lighter scrutiny than racial classifications?

Back 106

The Court says sex is more likely to be relevant to substantial government objectives, unlike race which are not likely at all.

Front 107

Explain the political function" exception to strict scrutiny of state laws making classifications on legal alienage."

Back 107

States can require residency for officers who participate directly in the formation, execution, or review of broad public policy that goes to the heart of representative government.

Front 108

Under United States v. Virginia (1996), what is the test for determining the sufficiency of a remedial decree?

Back 108

The VMI case. A proper remedy for an unconstitutional exclusionshould eliminate the discriminatory effects of the past and stop it from happening again in the future

Front 109

What are the three equal protection-only fundamental rights?

Back 109

1. right to vote,
2. right to the judicial process (limited)
3. the right to travel

Front 110

What justice in what case wrote the following: “However ‘liberally’ this plans serves the State’s sons, it makes no provision whatsoever for her daughters. This is not equal protection”?

Back 110

Ginsburg in U.S. v. Virginia (the VMI case)

Front 111

When does strict scrutiny apply to classifications targeting lawful resident aliens?

Back 111

Strict scrutiny applies to classifications targeting lawful resident aliens always, except in two instances (1) then the alien is trying for an unbelted civic role that directly affects the political process or (2) when the alien is here illegally, there are some instances where strict scrutiny applies and some where it does not.

Front 112

What is the difference between positive rights and negative rights?

Back 112

positive rights are those rights which permit or OBLIGE ACTION, whereas negative rights are those which permit or OBLIGE INACTION

Front 113

In heightened scrutiny, what purpose does the Court use in performing its means-ends analysis?

Back 113

Heightened Scrutiny is Intermediate scrutiny. (gender or illegitimacy) The means-ends analysis relates to the governmentmust show that its IMPORTANT purpose is SUBSTANTIALLY connected to the end result that it is desired.

Front 114

What case established that to be constitutional sex classifications must serve important governmental objectives and must be substantially related to achievement of those objectives?

Back 114

United States v. Virginia (Virginia Military Institute case)

Front 115

What level of review would apply to state laws that prohibit lawful resident aliens from serving as police officers, public school teachers, or probation officers?

Back 115

Minimal Scrutiny. Rational Basis Review. (Look to Amback v. Norwick)

Front 116

Explain Justice Rehnquist's reservations concerning multiple tiered equal protection review.

Back 116

phrases such as ‘exceedingly persuasive justification’ merely add an element of uncertainty respecting the appropriate test to use in an area of law that is hardly a model of precision as is.

Front 117

What is Justice Marshall's vision of the Equal Protection Clause?

Back 117

Justice Thurgood Marshall looked to the Equal Protection Clause as a means of correcting the ills of a separated America by providing both constitutional and unspecified rights to minorities. His belief in the Equal Protection Clause also prompted him to argue for a variable scale that would allow the court to examine the need of a suspect class before deeming the class in question to be non-suspect.

Front 118

What justice in what case wrote the following: The virtue of a democratic system [is] that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society's law trained elite) into our Basic Law."?"

Back 118

Justice Scalia / United Sates v. Virginia (VMI Case)

Front 119

What level of review applies to federal laws making classifications on the basis of legal alienage?

Back 119

Rational Basis because Congress can change immigration laws.

Front 120

Explain whether statutory rape laws that make the male alone criminally liable for sexual intercourse between heterosexual minors are constitutional under the Equal Protection Clause.

Back 120

The laws are constitutionally valid because the government holds a legitimate interest in the welfare of the mothers who would carry children underage and likely out of wedlock. (Moreover, males are not a suspect class which would require a strict scrutiny review.)

Front 121

To successfully challenge racial gerrymandering as a violation of equal protection, what must a plaintiff show?

Back 121

The plaintiff must show that the gerrymandering actually impacted the political process in such a manner so as to prevent the suspect class from being able to exercise the vote.

Front 122

What is the clear and present danger test?

Back 122

Whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Front 123

Explain the tension between Stanley v. Georgia (1969) and United States v. Reidel (1971).

Back 123

Stanley had Constitutional right to possess pornographic materials. Reidel had no Constitutional right to mail pornographic material using the post office. Reidel's right to possess was not the same thing as a right to mail or obtain.

Front 124

What is categorical balancing?

Back 124

Finding general constitutional categories and balancing them against the interests relevant to the constitutional provision in question.

Front 125

What is the test for obscenity established in Miller v. California (1973)?

Back 125

A work is obscene if
1. An average person using contemporary standards would find that the work taken as a whole appeals to the prurient interests.
2. Whether the work depicts or describes in a PATTENTLY OFFENSIVE WAY sexual conduct specifically defined by the applicable state law; and
3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Front 126

Provide an example of a content-based regulation.

Back 126

No "Jesus is not a homophobe Tshirts" in public schools. No political speech in the park. No critical signs of USSR infront of the USSR embassy.

Front 127

Name three categories of speech that receive no protection from government regulation.

Back 127

1) obscenity,
2) child porn,
3) incitement of immediate violence

Front 128

Name four categories of speech that receive limited constitutional protection.

Back 128

1. porn,
2. defamation,
3. commercial speech,
4. indecency

Front 129

Explain whether private possession of child pornography in the home is protected by the First Amendment.

Back 129

No, even though Stanley protects private possession of obscene material, Osborne ruled that Stanley did not protect the possession of child porn (a contraband).

Front 130

What is the test created by Brandenburg v. Ohio (1969)?

Back 130

For speech to be punished,
The advocacy is directed to inciting or producing imminent lawless action; and is likely to incite or produce such action.

Front 131

In what ways does New York v. Ferber (19 82) relax the test of Miller v. California (1973)?

Back 131

When dealing with child porn, the Miller test is adjusted in that
1. The material need not be considered as a whole.;
2. It is not required that the sexual conduct be done in a patiently offensive manner; and
3. The trier of fact need not find the material appeals to the prurient interest of the average person
The Miller Test bears no connection to the state’s interest in prosecuting those who exploit children in that it is irrelevant to the child if the work contained any literary, artistic, political or social value.

Front 132

Explain the concept of low-value speech.

Back 132

Low value speech is speech is limited as to content based regulations by government. The value depends on how closely the speech is to the core purpose of the First Amendment. Pornography, commercial speech, defamation of public figures, are types of low value speech.

Front 133

What four purposes does the casebook set out for protecting free speech?

Back 133

The four purposes are:
1. Self governance
2. The search for truth
3. Societal tolerance and self constraint
4. Autonomy (free expression is an integral part of the development of ideas)

Front 134

What standard of review is applied to a content-based regulation?

Back 134

Strict scrutiny

Front 135

Referring to hard-core pornography, what justice in what case wrote the following: I know it when I see it.""

Back 135

Justice Stewart in Jacobellis v. Ohio (1964) page 834.

Front 136

In the First Amendment context, what does intermediate scrutiny look like?

Back 136

If the restriction serves an important government purpose and leaves open alternative channels of communications it will only be subjected to intermediate scrutiny.

Front 137

What standard of review is applied to a content-neutral regulation?

Back 137

Intermediate

Front 138

What is a viewpoint-based regulation?

Back 138

While a certain area of content is not censored, a sub-sect of that content is not allowed. Example: We’re not banning political speech, just Republican political speech.

Front 139

Provide an example of a content-neutral regulation.

Back 139

TIME, PLACE & MANNER restrictions. Sound amplification equipment may not be used after the hour of 8PM within ¼ of a mile from a residential neighborhood.

Front 140

What is the distinction between a content-based regulation and a content-neutral regulation?

Back 140

Content based regulates what is said while content neutral will regulate the time, place and manner of what is said.

Front 141

What category of unprotected speech allows government to regulate speech likely to incite the hearer to an immediate breach of the peace?

Back 141

Fighting Words

Front 142

What is the distinction between indecent speech and obscene speech?

Back 142

Indecent speech does not rise to the level of ‘obscenity’ and thus, unlike obscenity, is protected speech under the first amendment.

Front 143

What is the Cohen v. California (1971) test?

Back 143

Offense words alone are protected.

The ability of government, to shut down speech to protect others from hearing it depends on the state showing that substantial privacy interests is being invaded in an essentially intolerable manner. Like in a captive audience, or in a hostile crowd being incited with fighting words. Words on a jacket the eyes could be averted.

Front 144

What is a heckler's veto?

Back 144

It’s whena member of the audience shouts or interrupts the speaker, taking control of the floor. Their actions often stop the speaker from continuing, and might result in the speaker stopping completely or being arrested to stop a riot, like in FEINER v NY.

Front 145

What is hate speech?

Back 145

Hate speech is speech that attacks a person or a group on the basis of religion, race, gender, or sexual ortientation. It has a strong tendency to cause violence and disorder, and is close to fighting words.

Front 146

What is Justice Black's view of the First Amendment?

Back 146

“No law” means no law. He is a textualist as it comes to the Constitution.

Front 147

What are three arguments in favor of regulating hate speech?

Back 147

1. Low social value/akin to defamation; 2. Fear of fighting words; and 3. Hate speech may violate equal protection.

Front 148

What was the constitutional problem with the ordinance at issue in Forsyth County v. Nationalist Movement (1992)?

Back 148

Forsyth County, GA did not have of "narrowly drawn, reasonable, and definite standards" governing the amount of the fee for the renting of public spaces for private events.

Rent was based on the damage and police presence estimated, and on the groups messages. The Nationalist are a white supremacy group and they had a record of causing trouble, but they won.

Front 149

What justice in what case wrote the following: [B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant."?"

Back 149

Stevens in F.C.C. v. Pacifica Foundation

George Carlin's monologue " of the 7 dirty words could be regulated over the air.

Front 150

Explain whether a state may treat cross burning as prima facie evidence of intent to intimidate a person or group of persons.

Back 150

A state may NOT treat cross burning as prima facie evidence of intent to intimidate because it strips away the very reason that a state may ban ‘cross burning with an intent to intimidate’ and permits the state to arrest all cross burners based solely on the fact of cross burning, which might be for a constitutionally protected reason other than with the intent to intimidate, such as political speech.

Front 151

Why did the Court rule the Communications Decency Act of 1996 (CDA) unconstitutional?

Back 151

The overbreadth doctrine prohibits government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

By prohibiting child pornography that does not depict an actual child, the statute goes beyond the categories recognized in Ferber and Miller.

Front 152

Was George Carlin's famous Filthy Words monologue delivered on a New York radio station deemed protected speech? Why or why not?

Back 152

The 7 dirty words were partially protected speech. They were deemed indecent, not obscene, so he could get fined, and his future performances were limited by time, place and manner restrictions.

The public had a right no to hear the words when trapped in their car with their children.

Front 153

In 2000, what less restrictive alternative did the Court point to in striking down section 505 of the Telecommunications Act of 1996?

Back 153

targeted blocking

Front 154

In Virginia v. Black (2003), why was the conviction of Barry Black vacated while the convictions of Richard Elliot and Jonathan O'Mara were upheld?

Back 154

Black’s jury received the (improper) instruction that cross-burning was prima facie evidence of an intent to intimidate.

Cross burning without an intent to intimidate is protected speech.

Front 155

What justice in what case wrote the following: Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment."?"

Back 155

Justice Black dissenting in Beauharnais v. Illinois

Front 156

What is a captive audience?

Back 156

This occurs when a certain type of speech is so pervasive that the audience cannot reasonably escape exposure (ex: certain communications that enter the home unbidden, messages on public transportation).

Front 157

What are some arguments against the regulation of hate speech?

Back 157

Hate speech is content based restrictions, very close to fighting words, and prone to overbreadth problems.

Front 158

Explain whether Beauharnais v. Illinois (1952) remains good law.

Back 158

Beauharnais was never explicitly overruled by the court.

But, now, some defamation is protected,

Beauharnais'a criminal libel conviction for distributing flyers "save the white race from the negros… would now fail the Brandenburg test, and

fighting words is narrower now.

Front 159

What is a public forum?

Back 159

Places historically open and for the use of the public. p. 955

Front 160

What is the secondary effects doctrine?

Back 160

Banning of the speech is a collateral effect of banning a certain conduct. These regulations tend to be content neutral.

Front 161

What is the Tinker test?

Back 161

Official censorship of student expression is unconstitutional unless the speech materially disrupts classwork or involves substantial disorder or invasion of the rights of others

Front 162

What standard of review is applied to time, place, and manner restrictions that affect speech?

Back 162

Intermediate. Page 928

Front 163

What justice in what case wrote the following: [This] case has nothing to do with `disagreeable ideas.' It involves disagreeable conduct [that] diminishes the value of an important national asset. The Court is therefore quite wrong in blandly asserting that [Johnson] "was prosecuted for his expression of dissatisfaction with the politics of this country, expression situated at the core of our First Amendment values." [Johnson] was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint [his] message of dissatisfaction on the façade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression.""

Back 163

Justice Stevens. Texas v. Johnson

Front 164

For purposes of the First Amendment, what are the three categories of public property?

Back 164

1. unlimited public forum
2. limited public forum
3. nonpublic forum

Front 165

Explain whether nude dancing in a nude dancing establishment constitutes expressive conduct under the First Amendment.

Back 165

In City of Erie v. Pap’s A.M., 6 justices agreed nude dancing constituted expressive conduct, though the plurality opinion agreed that it could be curtailed.

Front 166

How is the central issue involved in Hazelwood School District v. Kuhlmeier (19 88) different than the key issue confronting the Court in Tinker v. Des Moines School District (1969)?

Back 166

Tinker addressed whether a school could silence student speech (wearing armbands), but Hazelwood concerned a school’s authority over a school sponsored activity (school newspaper) and whether the 1st Amend. requires a school to affirmatively promote particular student speech.

Front 167

What is symbolic conduct?

Back 167

Conduct that is “inherently expressive.” (Conduct undertaken to communicate an idea).

Front 168

What is the distinction between a limited public forum and a nonpublic forum?

Back 168

limited public forum: open to those that the government wishes to permit

Non public forum: not a public forum at all and may be closed to all speech so long as the closure is reasonable. (page 959)

Front 169

What was the result in the Bong Hits 4 Jesus" case?"

Back 169

The suspension of the student and confiscation of his sign was upheld. A school may restrict student speech even without proof that the speech was materially disruptive.

Front 170

Explain why the O'Brien test was not used to assess the constitutionality of a statute forbidding desecration of an American flag in Texas v. Johnson (1989).

Back 170

The O’Brien test allowed regulation of conduct-speech so long as the reg was content-neutral. The OBrien court upheld the restriction against the destruction of draft cards because it was not the idea communicated that was targeted but the conduct itself. Draft cards were singular, one of a kind, hard to replace items. In Texas v. Johnson, the state’s interest was related to the suppression of free expression, not the conduct of burning of the flags since the American flag is fungible.

Front 171

What is the holding of Ward v. Rock Against Racism (1989)?

Back 171

The NYC ordinance was narrowly tailored to meet the objective and regulated the time, place and manner of speech, not the content of the speech, thus satisfied intermediate scrutiny. The City employed sound tech would control the amplification system for ALL concerts in Central Park.

Front 172

What test is employed to determine whether a governmental regulation of conduct violates the First Amendment?

Back 172

Content-based regulation = strict scrutiny
Content-neutral regulation = intermediate scrutiny O'Brien Test

The O'Brien Test =
"If the regulation is (content-neutral) unrelated to the suppression of free expression, the regulation is valid if:

1) it is within the state’s constitutional power

2) it furthers an important or substantial government interest

3) if the incidental restriction on speech is no greater than essential to the furtherance of that interest. (intermediate scrutiny).

Front 173

What must a local government show in order to enforce a content-based exclusion in a quintessential public forum?

Back 173

The state must show that its regulation is necessary to serve a COMPELLING state interest and that it is NARROWLY DRAWN to achieve that end.

Front 174

What test does City of Renton v. Playtime Theatres, Inc. (1986) establish for assessing the constitutionality of an ordinance limiting adult motion picture theaters to a particular section of the city?

Back 174

An ordinance restricting the location of adult theaters MUST BE DESIGNED TO SERVE A SUBSTANTIAL GOVERNMENTAL INTEREST and ALLOW REASONABLE ALTERNATIVE VENUES."

Front 175

Explain whether the Flag Protection Act of 1989 is constitutional.

Back 175

It is not. According to U.S. v Eichman, it violates the 1st Amendment because it was intended to suppress expression out of concern for its likely impact.

Front 176

What level of review is applied to government regulation based on the content of speech?

Back 176

Strict

Front 177

What is a total medium ban?

Back 177

When the court upholds a ban on an entire means of expression as with "noise trucks" in Kovacs v. Cooper (1949) because there were ample alternative channels of communication.

Front 178

What justice in what case wrote the following: [Political] parties often foster speech crucial to a healthy democracy and fulfill the need for like-minded individuals to ban together and promote a political philosophy. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities."?"

Back 178

Justice Rehnquist in McConnell v. Federal Election Commission.

Front 179

What is the overbreadth doctrine?

Back 179

A statute regulating unprotected speech also has a chilling effect on protected speech is overly broad (hence, overbreadth) if, in proscribing unprotected speech, it also proscribes protected speech. Allows facial challenges to statutes even when the individual has not yet been harmed by the statute, based on the chilling effect of the statute.

Front 180

What is a prior restraint?

Back 180

Licensing and injunctions that prohibit speech before it occurs, based on the speech’s content.

Front 181

What is the freedom of association?

Back 181

The Freedom of Association is the right to join or leave a group, for that group to be able to pusue a common goal. It is an individual and collective right found in the First Amendment.

Front 182

What is soft money?

Back 182

Soft money is spent for federal election purposes outside of federal contribution limits, source restrictions, and disclosure requirements. Prior to McCain-Feingold Act (BCRA), soft money was a loop-hole where non-federal party committees raised money outside the hard money limits & used that money to pay for federal committees activities. Soft money was not disclosed in amount or source. After BCRA, National parties were banned from receiving or using soft money. The most controversial form of soft money has been the monies donated to 527s which operate outside the rules of disclosure, and engage in attack ads designed to influence federal elections. They are legal so long as they are not directed or in collusion with the actual candidate.

Front 183

What are the salient features of an overbroad statute?

Back 183

An overbroad statute punishes constitutionally protected speech or conduct while prohibiting unprotected speech. An overbroad statute can be challenged facially, by a person not yet harmed by it, because of the chilling effect the statute has on protected speech or conduct.

Front 184

What provision of McCain-Feingold was struck down in Davis v. Federal election Commission (2008)?

Back 184

Asymmetrical Contribution limits

Front 185

What is the significance of Buckley v. Valeo (1976)?

Back 185

Money became speech. Some reasonable limits on contributions were upheld. This was the beginning of the end for the poor people's voice.

Front 186

What's the difference between overbreadth and vagueness?

Back 186

A vague or confusing law is one that the average person could not figure out what is being prohibited or what the penalties are for breaking that law. Overbroad statutes apply too much conduct or speech while the vague law is one in which an individual cannot guess the boundaries.

Front 187

Licensing of speech and injunctions preventing speech are analyzed as what under the First Amendment?

Back 187

Content based restrictions. They are presumptively void except when national security especially during wartime is at stake, and gag-orders in pending legal cases.

Front 188

What is the First Amendment problem with vague laws?

Back 188

They chill speech and permit viewpoint-based enforcement.

Front 189

What provisions of the Bipartisan Campaign Reform Act of 2002 were at issue in McConnell v. Federal Election Commission (2003)?

Back 189

Bans on
soft money by the national party,

corporate use general treasury funds,

electioneering activities,

political contribution by minors,

solicitation for tax-exempt organizations.

Front 190

Explain how Federal Election Commission v, Wisconsin Right to Life (2007) represents a departure from McConnell v. Federal Election Commission (2003).

Back 190

Both cases challenged McCain-Feingold.

McConnell was a facial challenge, where key bans were held constitutional. (ban on soft money by national party, corporate use of general treasury funds, etc).

WRTL was an "as applied" challenge, holding issue ads may not be banned from the months preceding an election.

Front 191

How might the overbreadth doctrine constitute an exception to normal standing rules?

Back 191

Plaintiffs don’t have to have an injury to challenge the statute. Their speech can just be chilled.

Front 192

Justice Thomas and Justice Stevens both believe Buckley v. Valeo (1976) should be overruled. What are their different reasons?

Back 192

Thomas said Buckley did not go far enough to protect money as political speech.

Stevens believes Buckley went too far in limiting campaign money because money is not political speech.

Front 193

Explain the two provisions of Vermont election law struck down by the Court in Randall v. Sorrell (2006).

Back 193

Candidate EXPENDITURE LIMITS & low CONTRIBUTION LIMITS from individuals and parties at all levels.

Front 194

Why have the overbreadth doctrine?

Back 194

The overbreath doctrine allows for facial challenges to a law regulating speech that chills the protected speech, so the plaintiff doesn't have to have an actual injury to make the challenge.

Front 195

Who signed McCain-Feingold into law despite having serious reservations about its constitutionality?

Back 195

George W. Bush

Front 196

Explain the importance of Broadrick v. Oklahoma (1973).

Back 196

Its important because laws regulating conduct and speech must be SUBSTANTIALLY overbroad to be invalid. THE STATE'S statute prohibited state employees from engaging in partisan political conduct while on the job. The statute was not SUBSTANTIALLY OVERBROAD, and held constitutional. If it had extended to their private lives, it probably would have been substantially overbroad.

Front 197

Explain the differential treatment accorded contribution and expenditure limits in Buckley v. Valeo (1976).

Back 197

Contribution ceilings safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political speech.

Expenditure limits place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.

Spending money (expenditures) on one's message equalled protected speech, thanks to Buckley v Valeo.

Front 198

What two clauses of the First Amendment protect religious freedom?

Back 198

The Establishment Clause and the Free Exercise Clause

Front 199

What is the Lemon test?

Back 199

Applies to state laws about religion. 1. The law must have a secular purpose
2. primary effect is to neither inhibit or advance religion and
3. must not “foster excessive government entanglement with religion”

Front 200

What is meant by the wall of separation"?"

Back 200

establishment clause was designed to preserve a private space for individuals to make voluntary choices about religious belief, free of government interference

Front 201

What are the two differing views about the intended purpose of the Establishment Clause?

Back 201

The wall of separation and the nonpreferential view.

Front 202

What are the three primary categories of Establishment Clause litigation?

Back 202

1. Gov. aid to private sectarian school;
2. State prayer at public events
3. State symbols with religious symbols.

Front 203

What's the rule set out by the Court in Employment Division v. Smith (1990)?

Back 203

If a generally applicable and neutral law would otherwise be valid, the fact that it has an incidental effect on religious practice will not in itself offend the constitution.

Front 204

For First Amendment purposes, what constitutes religious belief?

Back 204

belief in a relation to a supreme being involving duties superior to those arising from any human relation (test: given belief is sincere and meaningful and occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption

Front 205

What was the constitutional infirmity of the laws at issue in Church of the Lukumi Babalu Aye v. City of Hialeah (FL)?

Back 205

They single out Santeria for discriminatory treatment and target the Santeria sacrifice (proscribing more religious conduct than is necessary)

Front 206

Explain the tension between the Free Exercise Clause and the Establishment Clause.

Back 206

The requirement for the government to accommodate religion and religious expression while keeping a wall of separation to avoid showing that the government favors one religion over another.

Front 207

What does sectarian mean?

Back 207

Having to do with religious beliefs.

Front 208

Under the Lemon test, is it constitutionally valid for a federal program to provide federal funds to a variety of public and private organizations, including religious organizations, to counsel adolescents concerning sexual relations and pregnancy?

Back 208

Yes

Front 209

In religion cases, what is meant by a generally applicable law?

Back 209

A law that applies to everyone but may affect the religious practices of some in the population.

Front 210

What level of scrutiny is used to assess laws that are passed to regulate religious conduct or belief?

Back 210

Strict scrutiny (Compelling state interest is needed) When there is not a substantial burden on religious conduct, its minimal scrutiny.

Front 211

What justice in what case wrote the following: It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."?"

Back 211

Scalia in Smith v. Employment Division

Front 212

How does Agostini v. Felton (1997) reformulate the Lemon test?

Back 212

Agostini folds the “excessive entanglement” prong into the “effect” prong

Agonstini v Felton Test:
1. the material was secular and neutral in nature and
2. no "excessive entanglement" between government and religion was apparent.

Lemon Test: Applies to state laws about religion. 1. The law must have a secular purpose
2. primary effect is to neither inhibit or advance religion and
3. must not “foster excessive government entanglement with religion”

Front 213

Explain the nonpreferential view of the Establishment Clause.

Back 213

the aim of the religion clauses was to bar the national government from preferring any religion over all others

Front 214

How did the political branches respond to the Supreme Court's decision in Employment Division v. Smith (1990)?

Back 214

Congress enacted the Religious Freedom Restoration Act (RIFA) which SCOTUS overturned.

Then Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Oregon created an affirmative defense for peyote use in religion.

Front 215

What does “Play in the joints” mean in connection with the religion clauses?

Back 215

When the state action is permitted by the Establishment Clause, but not required by the Free Exercise Clause.

Front 216

What justice in what case wrote the following: The Establishment Clause [prohibits] a State from subsidizing religious education, whether it does so directly or indirectly. In my view, this principle of neutrality forbids [any] tax benefit, including the tax deduction at issue here, which subsidizes tuition payments to sectarian schools [and] the cost of books and other instructional material used for sectarian purposes."?"

Back 216

Marshall in Mueller v. Allen

Front 217

What is the holding of Sherbert v. Verner (1963)?

Back 217

That denial of unemployemnt benefits was an infringement on her constitutional rights to not work on Saturday per her religion, and the burden was not justified by a COMPELLING state interest. (overturned by Smith v Employment Division)

Front 218

Explain the different outcomes between McCreary County v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005).

Back 218

One Ten Commandment display was decided to be unconstitutional (KY) and the other was (TX). The outcome was Breyer who looked at the overall display and decided the TX display was older and was part of a larger, secular display while the purpose of the KY display was done with the purpose of putting up a religious symbol.

Front 219

What landmark case struck down official prayer in public schools?

Back 219

Engle v. Vitale

Front 220

Explain the state of the law concerning government tuition assistance that funds attendance to religious secondary schools.

Back 220

where a government aid program is neutral with respect to religion and provides assistance directly to a broad class of citizens who direct government aid to religious schools as a result of their own genuine private choice, the program is not readily subject to challenge under the establishment clause

Front 221

What justice in what case wrote the following: Celebration of public holidays, which have cultural significance even if they also have religious aspects, is a legitimate secular purpose."?"

Back 221

Justice O’Connor’s concurrence in Lynch v. Donnelly

Front 222

What invocation serves as the opening for each session of the Supreme Court?

Back 222

“God save the United States and this Honorable Court”

Front 223

Explain whether prayers as part of an official public school graduation ceremony violate the Establishment Clause.

Back 223

Yes, because they subject attending school children to psychological coercion

Front 224

Are Sunday closing laws constitutional?

Back 224

Yes, so long as there is a secular purpose of an uniform day of rest.

Front 225

What purported view of the Framers toward the Establishment Clause does Justice Thomas want the Court to re-adopt?

Back 225

The framers did not intend for the Establishment Clause to apply to the states. Thomas believes that States should not be treated the same as the federal government in establishment clause evaluations, states should be given more leeway to touch on religious matters.

Front 226

What was the holding of McCreary County v. ACLU of Kentucky (2005)?

Back 226

10 Commandments not okay in a courtroom. Breyer said the display was too religious.

Front 227

What was the holding of Van Orden v. Perry (2005)?

Back 227

The display of the monument does not violate the Establishment Clause of the First Amendment because they are passive and traditional display.

Front 228

What justice in what case wrote the following: [In] holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court —with nary a mention that it is doing so — lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological [coercion]."?"

Back 228

Scalia in Lee v. Weismsan

Front 229

What is the anticoercion principle?

Back 229

The state is not to use methods that would coerce students to participate in religious events.

Front 230

What is the neutrality principle?

Back 230

The formal criteria for selecting students and schools to participate in the program cannot be based on religion, nor can a program skew the choice toward religious schools by, say, providing more money for students who select religious schools

Front 231

Why did the Court in Lynch v. Donnelly (1984) rule as constitutional a town's display of the Infant Jesus, Mary and Joseph, angels, shepherds, and kings?

Back 231

Because the town was using the display as a secular symbol of Christmas, and not as a means of promoting religion. There wre enough reindeer present, to make it non-secular.

Front 232

Explain whether a school system may allow public high school students to vote to have a student of their choosing “ solemnize” high school football games.

Back 232

No, because the making the vote a school sanctioned item, it was as if the school itself was endorsing a religion.

Front 233

Why was the school choice program at issue in Zelman v. Simmons-Harris (2002) deemed constitutional?

Back 233

It was deemed entirely neutral with respect to religion, and the aid was delivered to private schools by true private choice rather than directly by the government.

Front 234

What justice in what case wrote the following: Frederick Douglass once said that 'education means emancipation. It means light and liberty. It means the uplifting of the soul of man into the glorious light of truth, the light by which men can only be made free.' Today many of our inner-city public schools deny emancipation to urban minority students. Despite this Court's observation nearly 50 years ago in Brown v. Board of Education, that 'it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education,' urban children have been forced into a system that continually fails them. These cases present an example of such failures."?"

Back 234

Justice Thomas’ concurrence in Zelman v. Simmons-Harris

Front 235

Explain the significance of Justice Breyer’s concurrence in Van Orden v. Perry.

Back 235

He is a known liberal that in this case sided with the conservative block in deciding that the use of the 10 commandments in courthouses and governmental displays was permissible.

Front 236

What two issues does the Court confront in Good News Club v. Milford Central School (2001)?

Back 236

1. Whether the school violated the free speech rights of the GNC when it excluded the club from meeting after hours, and

2. whether that violation is justified by the school’s concern that permitting the club’s activities would violate the Establishment Clause.

Front 237

Explain the significance of the distinction between government programs that provide aid directly to religious schools and programs that provide aid to religious schools through the private choices of aid recipients.

Back 237

A program that allows, but does not mandate, aid to religious schools through private choice avoids Establishment Clause problems that would arise if the government funded to institutions directly.

Front 238

Name each justice who presently serves on the Supreme Court.

Back 238

Kennedy, Scalia, Alito, Roberts, Ginsberg, Thomas, Souter, Stevens, Breyer.

Front 239

What is strict scrutiny?

Back 239

The standard applied to suspect classifications (such as race) in equal-protection analysis and to fundamental rights (such as voting rights) in due-process analysis. Under strict scrutiny the state must establish that it has a compelling interest that justifies the necessities of the law in question. Black’s Law Dictionary.

Front 240

What is intermediate scrutiny?

Back 240

A standard lying between the extremes of rational-basis review and strict scrutiny. Under the standard, if a statute contains a quasi-suspect classification (such as gender), the classification must be related to the achievement of an important governmental objective. Emphasis added. Black’s Law Dictionary.

Front 241

What is minimal scrutiny?

Back 241

Also rational-basis test. A principle whereby a court will uphold a law as valid under the Equal Protection Clause or Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate governmental objective.

Front 242

Who is the only person to serve as President and as a justice on the Supreme Court?

Back 242

William Howard Taft

Front 243

Which justice presently on the Court is the most likely to be the swing vote in constitutional cases?

Back 243

Kennedy

Front 244

Describe the difference between a facial challenge to a statute and an as-applied challenge.

Back 244

A facial challenge claims that a statute is unconstitutional on its face – that is it always operates unconstitutionally. The result is the entire statute is voided. As-applied challenges a law that is constitutional on its face, but unconstitutional as it is applied to the facts of a particular case or party. The result would be only the unconstitutional part of the statute is voided.

Front 245

What is stare decisis?

Back 245

Latin for “let the decision stand”. It is the judicial practice of basing the decisions in cases on similar cases already decided.

Front 246

What are a state's police powers?

Back 246

The power of government to make laws that are necessary and proper to preserve public security, order, health, morality and justice.

Front 247

What must the government show to have a law upheld under the strict scrutiny standard of review?

Back 247

Under strict scrutiny the state must establish that it has a compelling interest that justifies the necessities of the law in question. Black’s Law Dictionary.

Front 248

What must the government show to have a law upheld under the intermediate scrutiny standard of review?

Back 248

Under the standard, if a statute contains a quasi-suspect classification (such as gender), the classification must be related to the achievement of an important governmental objective. Emphasis added. Black’s Law Dictionary.

Front 249

What must the government show to have a law upheld under the rational basis standard of review?

Back 249

A court will uphold a law as valid under the Equal Protection Clause or Due Process Clause if it bears a reasonable relationship to the attainment of some legitimate governmental objective.

Front 250

Explain Justice Scalia's view on judicial use of legislative history.

Back 250

He’s a contextualist. You look at the text of the law, not motives or history.

Front 251

What does it mean for a justice to concur in the judgment only?

Back 251

The justice agrees with the judgment of the court, but not how the majority reached that judgment.

Front 252

What is a plurality opinion?

Back 252

An opinion where there is not enough justices to reach a majority, but receiving more votes than any other opinion.

Front 253

Who currently serves as Chief Justice of the Supreme Court?

Back 253

John Roberts

Front 254

Who are the four most solidly liberal justices presently on the Supreme Court?

Back 254

Ginsburg, Breyer, Sotomayor & Kagan
(Kennedy swings both ways)

Front 255

Who are the four most solidly conservative justices presently on the Supreme Court?

Back 255

Thomas, Scalia, Alito, and Roberts.
(Kennedy swings both ways)

Front 256

Explain the basis for the result in the Georgia case of Parham v. J.R. (1979).

Back 256

Court upheld GA’s practice of not requiring formal adversary hearings before parents commit their children to public mental institutions. The informal admissions procedure is valid because parents have a traditional interest and responsibility in the upbringing of their children and recognize the family as a unit with parental authority over minor children. A State has a right to permit family decision making for their children.

Front 257

Explain the result of Fisher v. University of Texas at Austin (2013).

Back 257

Kennedy argued that per the Grutter v. Bollinger ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."

Front 258

Explain the mistake made by the District Court and the Court of Appeals in Fisher v. University of Texas at Austin (2013).

Back 258

They did not apply the correct review – strict scrutiny which was necessary because race is a suspect class under strict scrutiny.

Front 259

What is Justice Marshall's vision of the Equal Protection Clause?

Back 259

Justice Thurgood Marshall looked to the Equal Protection Clause as a means of correcting the ills of a separated America by providing both constitutional and unspecified rights to minorities. His belief in the Equal Protection Clause also prompted him to argue for a variable scale that would allow the court to examine the need of a suspect class before deeming the class in question to be non-suspect.

Front 260

Explain whether United States v. Windsor (2013) recognizes a constitutional right for couples of the same sex to marry.

Back 260

No, Windsor did not recognize a constitutional right for same sex couples to marry. Section 3 of the Defense of Marriage Act, defined marriageat as a union between one man and one woman as husband and wife at the federal level. Windsor held that this was unconstitutional under the 5th DPC's equal Protection, given NY's recognition of same sex unions when Thea Spire died and her estate was not taxed to Edith Windsor under NY law, but it was taxed over $300K under DOMA. Windsor did establish that the federal government must recognize same-sex marriages that are legal in a place of celebration. The judgment of the Second Circuit is affirmed.

Front 261

Explain whether Congress’ attempt to criminalize the commercial creation, sale, or use of crush videos depicting animal torture is constitutional.

Back 261

No. The court concluded that the law was facially invalid because it applied to any killing of an animal no matter the reason which meant hunting videos would be included. The attempt wasn’t limited to only crush videos.

Front 262

Explain why the law in United States v. Stevens (2010) was facially invalid.

Back 262

The law tracked the Miller Test, but the law was substantially overbroad in prohibiting animal crush videos. So animal crush videos are allowed under the 1st A.

Front 263

Explain the majority’s opinion in Brown v. Entertainment Merchants Association (2011) on the issue of whether a state can ban the sale or rental of “violent video games” to minors.

Back 263

A state cannot ban the sale or rental of “violent video games” to minors because it imposes a restriction on the content of protected speech which is invalid which can only be justified if a compelling govt interest can be served. It is rare that a regulation restricting speech because of its content will ever be permissible.

Front 264

Explain why Justice Alito and Chief Justice Roberts disagree with the majority opinion in Brown v. Entertainment Merchants Association (2011).

Back 264

They both disagree with the approach taken. They feel that the emerging characteristics of video games should be considered because the violence is astounding. “Troubled teens could experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence." Violent games are different than reading violent books.

Front 265

Explain the basis for Justice Thomas’ dissent in Brown v. Entertainment Merchants Association (2011).

Back 265

Freedom of speech does not include a right to speak to minors without going through the minor’s parents or guardians. Founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children.

Front 266

Explain the basis for Justice Breyer’s dissent in Brown v. Entertainment Merchants Association (2011).

Back 266

He believes the law is constitutional to ban selling violent video games to minors because the industry itself tells us it wants to keep out of the hands of those under 17 gruesomely violent video games. The statute is compelling because it consists of both authority in their own household to direct the rearing of their children and the state’s independent interest in the well-being of its youth.

Front 267

Explain whether the government may compel the membership list of a political organization.

Back 267

In NAACP v. Alabama, the court ruled in order to determine whether the members were required to reveal the names and addresses of it s members, Alabama’s demand was a “substantial restraint” upon the exercise by NAACP’s members of their right to freedom of association. Alabama had to prove they had a compelling interest to require disclosure. In this case, their interest was not compelling and it could be accomplished in a far less restrictive fashion than FORCED DISCLOSURE. the first amend is violated by forced disclosure of info that substantially interferes with associational or expression rights, without sufficient justification for disclosure.

Front 268

What justice in what case wrote the following: “The censorship we now confront is vast in its reach…. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of ‘destroying the liberty’ of some factions is ‘worse than the disease.’ Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false…. When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”?

Back 268

Justice Kennedy , Opinion of the Court, in Citizens United.

Front 269

Describe the First Amendment stance on compelled speech.

Back 269

The right NOT to express ideas is at its strongest when the govt seeks to compel the expression of a belief or point of view. Govt compulsion to speak may be justified IF the govt can prove that the compulsion is the “least restrictive means” to accomplish a compelling govt interest that is unrelated to the forced expression of ideas.

Front 270

Explain the basis for the Court’s decision in Roberts v. United States Jaycees (1984).

Back 270

The state statute does not violate the freedom of association rights of the Respondent because they are a large corporation and is not selective of their participants. Jaycees already allows women as associate members so it doesn’t represent an overly burdensome change.

Front 271

Why does Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) come out differently than Boy Scouts of America v. Dale (2000)?

Back 271

The difference in the outcomes is based on the potential for the organization to be seen as adopting the message of the group they are associating with. In Rumsfeld allowing the ROTC on campus was not likely to lead a person to think the university was saying the University thought the military was good. IN contrast, the Boy Scouts had a message of being "morally straight" and other concepts that if forced to allow homosexuals to participate, would lead the average person to think the BSA believed homosexuality was good.

Front 272

Explain whether a state may constitutionally mandate that the Boy Scouts of America accept homosexuals as members.

Back 272

Although NJ had a compelling interest in eliminating discrimination against sexual minorities, the method of accomplishing the objective by forcible inclusion of gay scouts and scoutmasters, was a serious burden on the Scout’s freedom of expressive association. The practice of using adults to inculcate its value system to youngsters was expressive activity sufficient to make the Scouts an expressive association.

Front 273

What did the Court hold in Caperton v. A.T. Massey Coal Co. (2009)?

Back 273

A state judge acts unconstitutionally when he serves on a case involving the financial interests of one of his major election campaign backers. The Due Process Clause makes it necessary that the trial should be fair and impartial

Front 274

Describe whether the First Amendment permits a state to prohibit candidates for judicial election from announcing their views on disputed legal and political issues.

Back 274

Republican Party of Minnesota v. White: Scalia states that the announce clause/announce rule is unconstitutional. Prohibiting candidates for judicial election from announcing their views on disputed legal and political views violates the First Amendment.

Front 275

Explain whether a public school system can require school children to salute the American flag.

Back 275

NO. West Virginia State Board of Educatiom v. Barnette, struck down the state law requiring all public school students to salute and pledge allegiance to the flag of the US. The Court stated that only the most “immediate and urgent grounds” could justify an “involuntary affirmation…of a belief…

Front 276

What are asymmetrical contribution limits and are they constitutional?

Back 276

No. the asymmetry imposed a substantial burden on the exercise of the 1st Amendment right to use personal funds for campaign speech. The Asymmetrical contribution limits did nothing to prevent corruption or the appearance of corruption.

Front 277

What is a blanket primary?

Back 277

“all persons entitled to vote, including those not affiliated with any political party, shall have the right to vote… for any candidate regardless of the candidate’s political affiliation.”

Front 278

Explain whether a state may constitutional require an individual to participate in the dissemination of an ideological message by displaying it on private property in a manner and for the express purpose that it be observed and read by the public.

Back 278

States could not constitutionally require citizens to display a state motto that went against an individual's morality upon their vehicle license plates.

The rationale is there is a risk that the speech will be attributable to the property owner.

Front 279

Discuss the constitutionality of government attempts to limit the amount of money a self-financed candidate may spend in an election contest.

Back 279

Govts may NOT limit the amount of money a political candidate spends from his or her own funds and may NOT limit the amount of money that either individuals or organizations independent of a political candidate may spend on behalf of a candidate. BUT, govts MAY restrict the total expenditures of a political candidate as a condition to receipt of public funds.

Front 280

What justice in what case wrote the following: “In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.”?

Back 280

Justice Stevens in the dissent in Citizens United V. Federal Election Comm’n (2010) where CU wanted to air an anti-Hillary video durign the campaign.

Front 281

What did Austin v. Michigan Chamber of Commerce (1990) hold?

Back 281

This case considers whether Michigan’s restrictions on corporate political expenditures can be constitutionally applied to the Appellee. The court held that the statutory scheme provided a means for the Appellee to express itself politically and thus there was no abrogation of Appellee’s rights in requiring it to follow the statute.

Front 282

Explain the signifigance of justice Kennedy's concurrence in Republican Party of Minnesota v. White (2002).

Back 282

Austin ruled that Michigan's law prohibiting corporations from using general treasury money to make independent expenditures to support or oppose candidates in elections, did not violate the 1A & 14A. Austin is overruled now by Citizen's United. Buckley's "money is speech" and Bellotti state that the govt. may not suppress political speech on the basis of the speaker’s corporate identity.

Front 283

What two fallacious propositions does Justice Scalia identify in dissent in McConnell v. Federal Election Commission (2003)?

Back 283

Money is not speech.
Pooling Money is not speech.
Speech by Corporations can be abridged.

Front 284

Describe the conflicting lines of precedent facing the Court in Citizens United v. Federal Election Commission (2010).

Back 284

A pre-Austin line that forbade restrictions on political speech by corporations; and a post-Austin line that permits restrictions. Austin found a compelling govt interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporations political ideas." Citizens United overturned Austin allowing corporations the ability to spend unlimited amounts of money in campaigns.

Front 285

What was the fatal problem to Proposition 198 in California Democratic Party v. Jones (2000)?

Back 285

It forces Petitioners to adulterate their candidates selection process – the basic function of a political party – by opening it up to persons wholly unaffiliated with the party. Such forced association has the likely outcome – indeed – the INTENDED outcome – of changing the parties’ message. 198 is unconstitutional.

Front 286

What is the rule of four in the context of the Supreme Court’s decision as to whether to grant certiorari in order to hear a particular case?

Back 286

4 of the 9 justices must agree to hear a case.

Front 287

Concisely and cogently explain the decision studied this semester with which you disagree the most, with the caveat that the decision you choose must still be good law.

Back 287

Citizens United (2010). Corporations are not people for purposes of the 1st and 14th A because to give a corporation protected political speach in the form of money-is-speech, invites corruption into the political process. And where is the Court drawing the line if those personal rights, then why not the rest of the 1st, and allow corporations to practice religious beliefs and extend those to their employee's health care plans such as Hobby Lobby which just got argued this summer. Corporations get to now buy influence in elections, not directly through the candidate's campaign as that is still prohibited, but indirectly be creating TV compaign-style ads, movies, planted opinions, and media groups, in ways that no single living person can and they can do so anonomously

Front 288

Explain whether stare decisis should apply with more force in constitutional or statutory cases.

Back 288

Stare decisis should apply with more force to statutory cases than constitutional cases because SCOTUS needs the flexibility to overturn bad law that has stare decisis on outdated public policy, drastically changed conditions, or to promote justice. If SCOTUS was forced to strictly follow stare decisis, we would still have Plessy v Ferguson, and Bowers v Hardwick, etc. In contrast, there are many challenges to statutory provisions and they should be handled similarly to the ones before them until SCOTUS overturnes the law, or Congress repeals it.

Front 289

Explain the difference between viewpoint-based and content-based free speech restrictions.

Back 289

Content-based regulations are based on the subject matter of speech. Viewpoint-based speech restrictions are based upon the position the speaker takes.

Front 290

Explain whether Austin v. Michigan Chamber of Commerce (1990) is still good law.

Back 290

Austin ruled that Michigan's law prohibiting corporations from using general treasury money to make independent expenditures to support or oppose candidates in elections, did not violate the 1A & 14A. Austin is overruled now by Citizen's United. Buckley's "money is speech" and Bellotti state that the govt. may not suppress political speech on the basis of the speaker’s corporate identity.

Front 291

What are the two competing viewpoints about the meaning of the 2nd Amendment?

Back 291

That the right to bear arms viewpoint 1 is collective right to maintain a militia for individuals actively serving in that militia, or viewpoint 2 is a private right of an individual not connected with militias at all. There is actually a third line that thinks the right is an individual right and a collective right where individuals connected with militias can have firearms. Viewpoint 2 is the current Supreme Court view.

Front 292

Explain the importance of McDonald v. City of Chicago (2010).

Back 292

MvDonald extended the Heller decision to the states; 2A is an individual liberty.

Front 293

What unique position does Justice Thomas assert in McDonald v. City of Chicago (2010).

Back 293

JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms , but under the Privilages and Immunities Clause.

Front 294

Explain what level of review the Court applies to assess the constitutionality of gun regulations.

Back 294

strict

Front 295

What does the Court order the District of Columbia to do following District of Columbia v. Heller (2008)?

Back 295

Grant Heller a license to have a handgun in his residence for self protection.

Front 296

What proposition does United States v. Miller (1939) stand for?

Back 296

“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” Both sides of gun control say this case supports their side: efficiency of guns in modern militia v. no challenges to gun control. Miller was cited in Heller.

Front 297

How many justices recognized that there was an individual right to bear arms in District of Columbia v. Heller (2008)?

Back 297

5

Front 298

Explain whether equal protection challenges to non-racial gerrymandering are justiciable.

Back 298

It appears that they are not. In Vieth, a the plurality’s position was that they are non-justiciable as political questions (no judicially discernable and manageable standards for adjunction)

Front 299

Why did the Court refuse to rule the Child Online Protection Act (COPA) unconstitutional in Ashcroft v. ACLU (2002)?

Back 299

The court concluded that the COPA’s use of contemporary community standards did not, by itself, render the statute substantially overbroad, and that the scope of the law was narrowed by the ‘prurient interest to minors’ and ‘lack of serious value to minors’ requirements.

Front 300

Explain the significance of Justice Kennedy’s concurrence in Republican Party of Minnesota v. White (2002).

Back 300

Scalia says the announce rule is unconstitutional. Kennedy concurs and states that content based speech restrictions should be invalidated. The political speech of candidates is at the heart of the 1st amendment. To restrict is beyond the power of govt to impose.