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34 Cards in this Set
- Front
- Back
DCC--> Discriminate against out of staters by burdening interstate commerce
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Violates DCC unless NECESSARY to achieve IMPORTANT GOV INTEREST and NO REASONABLE NONDISCRIMINATORY ALTERNATIVE
(almost always invalid) Exception: Market participant / congressional approval |
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Privileges and Immunities Clause / Article 4 --> Discriminate against out of staters w/ regard to ability to learn livelihood
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Violates PI unless its NECESSARY to achieve an IMPORTANT GOV. INTEREST. Must be w/ regard to civil liberties or important economic activities.
Doesn't apply to corporations / aliens (must use DCC) |
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State taxation of interstate commerce
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Cannot tax interstate commerce unless SUBSTANTIAL NEXUS, FAIR APPORTIONMENT, and FAIR RELATIONSHIP. Otherwise undue burden.
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Full Faith and Credit
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Jurisdiction, Merits, Final
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Types of State Action (2)
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Public Function --> Traditionally and exclusively done by gov.
Entanglement --> Affirmatively authorizes, encourages, or facilitates unconstional activity. |
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Rational basis test
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Rationally related to a legitimate government purpose
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Intermediate Scrutiny
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Narrowly tailored
Substantially related to an important government purpose |
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Strict Scrutiny
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Necessary
to achieve compelling governmental interest Least restrictive means |
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Procedural Due Process balancing test
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Importance of interest to individual
ability of additional procedures to increase accuracy of fact finding government's interest |
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Possessory Taking Test
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(1) Economic impact
(2) Extent of interference w/ investment backed expectations (3) Character of the government action |
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Contracts Clause Tests (2)
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Private contracts: Intermediate scrutiny
Government contracts = Strict Scrutiny BIll of Attainder / Ex Post Facto --> Civil liability only needs rational basis |
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Fundamental Rights to Privacy
MAD VT (vermont) COPS protects fundamental privacy interest |
M --> Marry
A --> Abortion D --> Terminally ill person to Die V --> Vote T --> Travel C --> contraceptives O --> Obscene material in private P --> Parenting rights (control upbringing and education of child) S --> Sexual activity / sodomy ALL GET STRICT SCRUTINY (except abortion) |
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Abortion Test
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Cannot prohibit before viability.
OK to regulate as long as no undue burden on ability to obtain abortion. Spousal consent / notification laws are unconstitutional. Parental notice / consent OK as long as alternative procedure before judge. |
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No Fundamental Rights to...
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Education
Practice a trade or profession |
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Equal Protection --> Strict Scrutiny classes
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Race / National Origin
Alienage (unless government / democratic process issue --> gets rational basis) |
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Equal Protection --> Intermediate Scrutiny classes
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Gender (IM + exceedingly persuasive justification)
OK to remedy past discrimination Non-marital children Children of aliens |
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Equal Protection --> Rational basis classes
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Age
Disability Wealth Economic Sexual Oreintation |
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Freedom of Speech Threshold Test:
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Is it content-based or content-neutral?
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Content-based speech test
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Subject matter restrictions [topic] and viewpoint restrictions [ideology]
Get strict scrutiny. |
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Content-neutral speech test for public forums
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Intermediate scrutiny
OK if time/place/manner regulation, Important governmental purpose, adequate alternatives for public forums |
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Content-neutral speech test for nonpublic forums
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Reasonable and viewpoint neutral
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Content-neutral speech test for private forums
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No protection.
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Prior Restraints
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Must meet strict scrutiny
BUT if procedurally proper, must comply with the law until its overturned. |
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License / permit to speech
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Ok ONLY if there are: important reasons / procedural safeguards / no discretion with authority.
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Two challenges to speech laws
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Vagueness --> Rx person cannot tell what speech is prohibited / allowed
Overbreadth --> Regulates substantially more speech than constitution allows. |
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Symbolic speech laws
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Regulate conduct if it has impotant interest UNRELATED to suppression of the message, and impact is NO GREATER THAN NECESSARY to achieve gov's purpose.
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Incitment of Illegal Activity
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Gov can regulate if there is SUBSTANTIAL LIKELIHOOD OF IMMINENT ILLEGAL ACTIVITY, and speech is DIRECTED TO CAUSING IMMINENT ILLEGALITY
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Obscene Speech
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Must appeal to prurient interest, must be patently offensive under community standard.
Taken as a whole, lacks redeeming artistic, political, scientific, etc value. Profane / indecent speech is protected, except over broadcast media and in schools (BONG HITS 4 JESUS) |
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Commercial speech
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Illegal activity, false & deceptive ads are not protected.
Other commercial speech gets intermediate scrutiny. |
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Freedom of Association test
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Strict Scrutiny
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Punishing member of a group, gov must prove: (3)
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(1) Active affiliation w/ group
(2) Knowledge of its illegal activities (3) Specific intent of furthering those illegal activites |
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Laws that prohibit a group from discriminating are ____ unless ___
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They are constitutitional, UNLESS it interferes with INTIMATE association, or expressive activity
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Free Exercise Clause Test -->
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Cannot be used to challenge neutral and general laws of applicability.
Must show government purpose to discriminate and religious speech / religion. Then gets Strict Scrutiny |
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Establishment Clause test
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(1) Secular Purpose
(2) Effect must neither advance or inhibit religion (3) No excessive entanglement with religion. |