Constitutional Law Ii - Mcmillan

Front 1

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

Back 1

In determining the amount of process due, the court should weigh three factors:

1. The interests of the individual in retaining their property, and the injury threatened by the official action
2. The risk of error through the procedures used and probable value, if any, of additional or substitute procedural safeguards;
3. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication
updated 5/4 10:32

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

The “bitter with the sweet” approach refers to the Rehnquist’s reasoning in Arnett v. Kennedy that says the legislature when creating a substantive right may limit it by also defining the procedures for its removal. "[Where] the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet."

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. Justice Black believed that the Fourteenth Amendment’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.

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.

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 - quartering soldiers
5th - grand jury
6th - jury selected of residents
7th - jury trial (civil)
8th - excessive fines

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

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 abortions and State may make a value judgement to favor child-birth over abortion.

Front 36

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

Back 36

The gag rule was not an unconstitutional condition because "the government is not denying a benefit to anyone, but is instead simply insisting the at public funds be spent for the purposes for which they were authorized."

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

Roe v. Wade, Judge Blackmun for the majority (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

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.

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 “deeply rooted in this Nation’s history and traditions." They also factor in the rights "implicit in the concept of ordered liberty."

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 (page 530)

Front 54

Is suicide a constitutional right? Explain.

Back 54

Probably. The question in Cruzan was whether a state law requiring a surrogate to present clear and convincing evidence of the patient’s wish to remove life support was legitimate. Glucksberg concerned assisted suicide. The question whether there is a constitutional right to commit suicide was not presented in either case, but both cases implied a right probably exists.

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

“Washington’s assisted suicide ban does not violate the Fourteenth Amendment, either on its face or ”as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.” (page 536)

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 regulation must be subjected to "critical examination" or "compelling state interest" analysis.

Front 59

Explain the importance of Footnote 4 from Carolene Products.

Back 59

Gives justification for tiered review by identifying three types of classifications that might be suitable for heightened scrutiny:

1) facially conflicting with specific constitutional rights,
2) those that inhibit the democratic process and
3) those that classify on the basis of race, religion, or membership in any other ‘discrete and insular’ minority. Much of the modern idea of heightened scrutiny can be linked to these three types of classifications.

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

The court looks at the reasonableness of the classification created (means) and its relation to the outcomes (ends) sought by the law. Certain classifications require a tighter fit between means and end than others.

Front 62

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

Back 62

Fifth Amendment due process clause of the United States Constitution

Front 63

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

Back 63

Laws based on suspect classifications are subject to strict scrutiny whereas laws based on quasi-suspect classification are subject to intermediate scrutiny. Suspect classifications meet all of the following: 1. immutable traits 2. history of purposeful unequal treatment and 3. perennial lack of access to political power. Quasi-suspect classes meet some but not all 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

Front 66

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

Back 66

Facially discriminatory classifications;
Neutral classification applied in a discriminatory fashion;
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

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

establishes that proof of discriminatory intent is necessary to shift a facially neutral classification into a suspect category

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 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 firearm in the home without a license and the keeping of firearm in the home without having to disarm it.

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 operable rot he 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

“A well regulated Militia, being necessary to the security of a free state …”

Front 81

What is the operative clause of the 2nd Amendment?

Back 81

“…the right of the people to keep and bear Arms shall not be infringed.”

Front 82

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

Back 82

The Court required the classification to be rationally related to a substantial, rather than simply a legitimate, state interest and effectively shifted to Texas the burden of proof on this issue

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 to stand for the idea of non-discrimination on the basis of race, while the dissent views Brown as a promise of integrated primary and secondary schools.

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 factors are measured to determine if a school district has achieved unitary status. These factors are:

Extracurricular Activities
Transportation
Administrative Staff Assignment
Relative Quality of Education
Faculty Assignment
Facilities and Resources
Student Assignment

Front 86

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

Back 86

The decision was 5-4 with O'Connor, Stevens, Souter, Ginsburg, and Breyer in the Majority. The dissent was Scalia, Thomas, Rhenquist, and Kennedy.
Assuming that every party still present voted the same and the new justices stuck to their traditional blocks. Then it would be REVERSED 5-4.
Conservatives with Kennedy over Liberals.

Front 87

According to Justice Powell in Regents of the University of California v. Bakke (1978), what is a permissible goal for institutions of higher education in considering race in their admissions decisions?

Back 87

He agreed with other Justices that a university should be permitted to take into account an applicant's membership in a racial minority as part of the admissions process. But he believed that a racial "quota" system, i.e., the explicit reservation of places which could only be filled by minorities, 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

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

The compelling interest of remedying the effects of past intentional discrimination;
The interest in diversity in higher education upheld in Grutter

Front 90

What is a less restrictive alternative?

Back 90

Any plausible example that still acheives the same purpose, but does not infringe on individual's fundamental rights as much.

Front 91

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

Back 91

The rational relationship test and the strict scrutiny test. The division is based on the existence or non-existence of a suspect classification. I think a more correct answer is the subordination v anti-subordination.

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

Not only did Richmond not show that it had a compelling need to redress past discrimination, it also was unable to show that its plan was narrowly tailored to this remedial objective.

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

8

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; Meredith v. Jefferson County Board of Education

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

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."

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 antisubordination view is that the goal of the 14th Amendment was to correct the effects of past racial discrimination, NOT to make us all colorblind

Front 100

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

Back 100

In Parents Involved in Community Schools v. Seattle School District No. 1 (2007), the Court held that, if a school system became racially imbalanced due to social factors other than governmental racism, then the state is not as free to integrate schools as if the state had been at fault for the racial imbalance.

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

Front 102

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

Back 102

In a race-conscious admissions program, using race as a plus factor is a holistic review of the applicant’s file, giving consideration to all the ways an applicant might contribute to diverse educational environment, and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her 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

Shapiro v. Thompson, 394 U.S. 618 (1969), was a United States Supreme Court decision that helped to establish a fundamental "right to travel" in U.S. law. In Sosna v. Iowa the appellant was not irretrievably foreclosed from obtaining some part of what she sought, as Iowa had a one-year residency requirement for instituting divorce proceedings

Front 105

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

Back 105

For purposes of equal protection, a right or interest is "fundamental" if (1) it is an independently protected constitutional liberty, or (2) it has been identified as "fundamental" for equal protection purposes even though it is not independently protected by the Constitution.

Front 106

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

Back 106

The Court thinks that sex, far more often than race, may be relevant to legitimate government objectives.

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

A proper remedy for an unconstitutional exclusion [aims] to "eliminate [so far as possible] the discriminatory effects of the past" and to "bar like discrimination in the future."

Front 109

What are the three equal protection-only fundamental rights?

Back 109

1. right to vote,
2. limited right of access to the judicial process and
3. the right of interstate migration

Front 110

What justice in what case wrote the following: “However ‘liberally’ this plans serves the State’s sons, it makes not provision whatsoever for her daughters. This is not equal protection”?

Back 110

Ginsburg in U.S. v. Virginia

Front 111

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

Back 111

Only to those classifications that are used by the states, and then only with respect to matters that do not implicate a state’s legitimate power ‘to preserve the basic conception of a political community’

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 the equivalent of Intermediate scrutiny. It is used when the classification is related to gender or illegitimacy. The means-ends analysis relates to the government’s being required to show that the important purpose is substantially connected to the end result that it is attempting to reach.

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

Craig v. Boren.
affirmed by United States v. Virgina (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

By adding exceedingly persuasive justification to the important governmental objective and substantially related test used for gender based classification, this multiple tiered test for equal protection review adds an element of uncertainty regarding which test is appropriate due to the impreciseness of the terminologies used.

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.

Front 121

What is the clear and present danger test?

Back 121

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 122

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

Back 122

Stanley said that the state was barred from making private possession of pornography a crime, but Reidel said that the right to possess is not a right to obtain.

Front 123

What is categorical balancing?

Back 123

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

Front 124

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

Back 124

An average person using contemporary standards would find that the work taken as a whole appeals to the prurient interests.

Whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law; and
Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Front 125

Provide an example of a content-based regulation.

Back 125

No political speech in the park

Front 126

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

Back 126

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

Front 127

Name four categories of speech that receive limited constitutional protection.

Back 127

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

Front 128

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

Back 128

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 129

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

Back 129

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 130

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

Back 130

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. When dealing with child porn, the Miller test is adjusted in that
1. The trier of fact need not find the material appeals to the prurient interest of the average person;
2. It is not required that the sexual conduct be done in a patiently offensive manner; and
3. The material need not be considered as a whole.

Front 131

Explain the concept of low-value speech.

Back 131

Low value speech is speech that has 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. Obscenity and pornography constitute types of low value speech.

Front 132

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

Back 132

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 133

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

Back 133

Strict scrutiny

Front 134

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

Back 134

Justice Stewart in Jacobellis v. Ohio (19 64) page 834.

Front 135

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

Back 135

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

Front 136

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

Back 136

Intermediate

Front 137

What is a viewpoint-based regulation?

Back 137

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 138

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

Back 138

1. Whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest;
2. Whether the work depicts or describes, in a patently 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 139

Provide an example of a content-neutral regulation.

Back 139

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

Unlike indecency, obscene speech is not protected by the First Amendment. As such, words alone can be legally obscene. The line between indecency and obscenity is not entirely clear, but what is clear is that indecent material is a rung below obscene material. While indecent materials cannot be banned entirely due to First Amendment considerations, obscene materials may be banned entirely.

Front 143

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

Back 143

Offense words alone are protected. The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it [is] dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

Front 144

What is a heckler's veto?

Back 144

The heckler's veto involves situations in which the government attempts to ban protected speech because it might provoke a violent response. In such situations, the mere possibility of a violent reaction to protected speech is simply not a constitutional basis on which to restrict the right to speak."

Front 145

What is hate speech?

Back 145

The denigration of identifiable groups (with a strong tendency to cause violence and disorder?)

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. Form 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

There were no standards to determine how much a group would be charged.

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

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

It placed an unacceptably heavy burden on protected speech because it was not narrowly tailored and thus silenced large amounts of speech that adults have a right to send and receive.

Front 152

Why did the Court rule the Child Pornography Prevention Act of 19 96 (CPPA) unconstitutional?

Back 152

By prohibiting child pornography that does not depict an actual child, the statute goes beyond the categories recognized in Ferber and Miller. The overbreadth doctrine prohibits government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

Front 153

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

Back 153

The monologue was deemed ‘indecent’ and not ‘obscene’ and was therefore protected by the 1st Amendment. However, because the value of the speech was very low, it had only limited protection and was outweighed by other competing interests, such as the right of others to be secure in their homes against the intruding message, and the State’s interest in protecting young ears.

Front 154

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

Back 154

targeted blocking

Front 155

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 155

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

Front 156

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 156

Justice Black dissenting in Beauharnais v. Illinois

Front 157

What is a captive audience?

Back 157

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 158

What are some arguments against the regulation of hate speech?

Back 158

The regulation is nakedly content-based and cannot be bounded sufficiently to avoid overbreadth problems. If it is sufficiently bounded, it adds nothing beyond what is already supplied by categories such as fighting words or the “civility torts”. It is unhelpful or downright harmful to the interests of the minorities it seeks to benefit because the prime method of escaping social subordination is through speech.

Front 159

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

Back 159

Beauharnais has never been explicitly overruled by the court, however subsequent decisions make it questionable for use as precedent for three reasons. We now know that certain types of defamation are protected, the statute would most likely not meet the Brandenburg test, and the definition of fighting words has been narrowed

Front 160

What is a public forum?

Back 160

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

Front 161

What is the secondary effects doctrine?

Back 161

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

Front 162

What is the Tinker test?

Back 162

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 163

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

Back 163

Intermediate. Page 928

Front 164

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 164

Justice Stevens. Texas v. Johnson

Front 165

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

Back 165

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

Front 166

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

Back 166

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 167

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 (19 69)?

Back 167

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 168

What is symbolic conduct?

Back 168

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

Front 169

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

Back 169

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 170

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

Back 170

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 171

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 171

In O’Brien the court upheld the restriction against the destruction of draft cards because it was not the idea communicated that was targeted but the conduct itself. In Texas v. Johnson, the state’s interest was related to the suppression of free expression.

Front 172

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

Back 172

The NYC ordinance regulated the time, place and manner of speech, not the content of the speech and satisfied a review on intermediate scrutiny that the ordinance was narrowly tailored to meet the objective.

Front 173

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

Back 173

If the regulation is unrelated to the suppression of free expression (content-neutral), the O’Brien test: 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).
If the regulation is content-based, it is subjected to strict scrutiny.

Front 174

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

Back 174

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. page 956

Front 175

What test does City of Renton v. Playtime Theatres, Inc. (19 86) establish for assessing the constitutionality of an ordinance limiting adult motion picture theaters to a particular section of the city?

Back 175

The state has to show that its regulation is designed to serve a substantial govt interest and allows for reasonable alternative avenues of communication.

Front 176

Explain whether the Flag Protection Act of 1989 is constitutional.

Back 176

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 177

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

Back 177

Strict

Front 178

What is a total medium ban?

Back 178

When the court upholds a ban on an entire means of expression as with noise trucks in Kovacs v. Cooper (1949). There needs to be ample alternative channels of communications for the court to uphold the ban.

Front 179

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 179

Justice Rehnquist in McConnell v. Federal Election Commission.

Front 180

What is the overbreadth doctrine?

Back 180

Allows facial challenges to statutes even when the individual has not been harmed by the statute. It allows challenges based on the chilling effect of the statute.

Front 181

What is a prior restraint?

Back 181

An administrative or judicial order that prohibits speech before it occurs, and it does so on the basis of the speech’s content. It is done by licensing and injunction.

Front 182

What is the freedom of association?

Back 182

First Amendment right that allows choices of association to directly express ideas or for the purpose of expressing ideas.

Front 183

What is soft money?

Back 183

Soft money is money or anything of value that is given or spent for federal election purposes outside of federal contribution limits, source restrictions, and disclosure requirements. Prior to the adoption of BCRA, soft money was the term used to refer to the non-federal monies raised by party committees and used to pay a share of the costs of federal-election-related activities. National parties were banned from receiving or using soft money under BCRA. After BCRA, the most controversial form of soft money has been the monies donated to section 527 tax exempt political organizations not registered as federal political committees which engage in independent activity to influence federal elections.

Front 184

What are the salient features of an overbroad statute?

Back 184

It allows challenges to all possible applications of speech regulation rather than just application to the litigant.

Front 185

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

Back 185

Asymmetrical Contribution limits

Front 186

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

Back 186

Court equated money with speech, but upheld reasonable limits on contributions.

Front 187

What's the difference between overbreadth and vagueness?

Back 187

Just because something is vague does not mean its overbroad. Overbroad statutes apply too much conduct or speech while the vague law is one in which an individual cannot guess the boundaries.

Front 188

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

Back 188

Prior Restraint, thus they are presumptively void. If it is content based is more likely to be restrained.

Front 189

What is the First Amendment problem with vague laws?

Back 189

They chill speech and permit viewpoint-based enforcement.

Front 190

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

Back 190

1. Ban on soft money by the national party
2. Prohibitions against corporations and labor unions to use general treasury funds to effect the outcome of federal elections
3. Bans on electioneering activities
4. Political contribution by minors
5. Solicitation for tax-exempt organizations.

Front 191

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

Back 191

WRTL successfully challenged BRCA on an “as applied” basis rather than attacking it facially.

Front 192

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

Back 192

You don’t have to have an injury to challenge the statute.

Front 193

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

Back 193

Thomas said Buckley provides insufficient protection to political speech and an inability to apply Buckley in a coherent and principled fashion. Stevens believes that Buckley should be overruled in that there should be limits on expenditures.

Front 194

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

Back 194

The low contribution limits and expenditure limits all by basis of the race contributed to.

Front 195

Why have the overbreadth doctrine?

Back 195

It protects constitutionally unprotected speech by also regulating protected speech.

Front 196

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

Back 196

George W. Bush

Front 197

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

Back 197

Content based, but viewpoint neutral regulation was upheld in that the conduct was not constitutionally protected and the Court felt that the employees did not explain how it covered protected political speech. If the statute regulates both conduct and speech, the overbreadth of the law must be plain. It must be substantially overbroad to be invalid. Court never defines what is substantially overbroad.

Front 198

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

Back 198

Contributions are conduct and are not the only way to communicate with a candidate for office. Expenditures are the amplification of the speech and by limiting expenditures, you limit how the message may be delivered.

Front 199

What two clauses of the First Amendment protect religious freedom?

Back 199

The Establishment Clause and the Free Exercise Clause

Front 200

What is the Lemon test?

Back 200

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 201

What is meant by the "wall of separation"?

Back 201

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

Front 202

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

Back 202

The Wall of Separation and the Nonpreferential view.

Front 203

What are the three primary categories of Establishment Clause litigation?

Back 203

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

Front 204

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

Back 204

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 205

For First Amendment purposes, what constitutes religious belief?

Back 205

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 206

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

Back 206

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

Front 207

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

Back 207

The Establishment Clause specifies when government may not accommodate religion and the Free Exercise Clause specifies when government must accommodate religion.

Front 208

What does sectarian mean?

Back 208

Being of a religious group: relating to or involving relations between religious groups or denominations

Front 209

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 209

Yes

Front 210

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

Back 210

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

Front 211

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

Back 211

Strict scrutiny

Front 212

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 212

Scalia in Smith v. Employment Division

Front 213

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

Back 213

Folds the “excessive entanglement” prong into the “effect” prong

Front 214

Explain the nonpreferential view of the Establishment Clause.

Back 214

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

Front 215

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

Back 215

Congress enacted the RFRA - Religious Freedom and Restoration Act based on the 14th amend due process and free exercise clause. (it was struck down) and Congress enacted RLUIPA - Religious Land Use and Institutionalized Person Act under the spending and commerce clause.

Front 216

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

Back 216

The establishment clause specifies when governments may not accommodate religion, whereas the free exercise of clause specifies when governments must accommodate religion. An act that falls between the two is thought to be "playing in the joints."

Front 217

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 217

Marshall in Mueller v. Allen

Front 218

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

Back 218

The Court held that the Free Exercise Clause of the First Amendment required that government demonstrate a compelling government interest before denying unemployment compensation to someone who was fired because their job conflicted with their religion.

Front 219

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

Back 219

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 220

What landmark case struck down official prayer in public schools?

Back 220

Engle v. Vitale

Front 221

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

Back 221

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 222

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 222

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

Front 223

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

Back 223

“God save the United States and this Honorable Court”

Front 224

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

Back 224

Yes, because graduations have risen to the level of being socially mandatory, so subjecting attendees to the prayer is coercive.

Front 225

Are Sunday closing laws constitutional?

Back 225

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

Front 226

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

Back 226

The establishment clause was created to protect the states and their citizens from federal government imposition of an established religion therefore, states should maintain neutrality regarding religion but should have more freedom to experiment with involvement in religion than the federal government.

Front 227

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

Back 227

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

Front 228

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

Back 228

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

Front 229

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 229

Scalia in Lee v. Weismsan

Front 230

What is the anticoercion principle?

Back 230

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

Front 231

What is the neutrality principle?

Back 231

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 232

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 232

The Court ruled that the crèche has a legitimate secular purpose within a larger holiday display to celebrate the season and the origins of Christmas which has long been a part of Western culture.

Front 233

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 233

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

Front 234

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

Back 234

The court ruled that the Ohio program met the five-part test in that 1) the valid secular purpose of the program was "providing educational assistance to poor children in a demonstrably failing public school system", 2) the vouchers were given to the parents, 3) the "broad class" was all students enrolled in currently failing programs, 4) parents who received vouchers were not required to enroll in a religious-based school, and 5) there were other public schools in adjoining districts, as well as non-sectarian private schools in the Cleveland area, available that would accept vouchers.

Front 235

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 235

Justice Thomas’ concurrence in Zelman v. Simmons-Harris

Front 236

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

Back 236

First, he crossed ideological lines to join the conservative block for this particular opinion.
Second, in a similar ten commandment case decided that very day he switched back to his liberal block.

Front 237

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

Back 237

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 238

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 238

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 239

Name each justice who presently serves on the Supreme Court.

Back 239

Roberts, Scalia, Alito, Thomas, Kennedy, Ginsberg, Sotomayor, Kagan, Breyer

Front 240

What is strict scrutiny?

Back 240

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 show that the law furthers a "compelling governmental interest," and is narrowly tailored to achieve that interest.

Front 241

What is intermediate scrutiny?

Back 241

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 challenged law must further an important government interest by means that are substantially related to that interest.

Front 242

What is minimal scrutiny?

Back 242

Rational Basis Review - This test requires that the governmental action be "rationally related" to a "legitimate" government interest. Under this standard of review, the "legitimate interest" does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand the rational basis review.[

Front 243

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

Back 243

William Howard Taft

Front 244

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

Back 244

Kennedy

Front 245

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

Back 245

A facial challenge claims that a statute is unconstitutional as it is written. 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.

Front 246

What is stare decisis?

Back 246

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

Front 247

What are a state's police powers?

Back 247

The authority conferred upon the states by the Tenth Amendment to the U.S. Constitution and which the states delegate to their political subdivisions to enact measures to preserve and protect the safety, health, Welfare, and morals of the community.

Front 248

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

Back 248

To pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.

Front 249

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

Back 249

To pass intermediate scrutiny, the challenged law must further an important government interest by means that are substantially related to that interest.

Front 250

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

Back 250

This test requires that the governmental action be "rationally related" to a "legitimate" government interest. Under this standard of review, the "legitimate interest" does not have to be the government’s actual interest. Rather, if the court can merely hypothesize a "legitimate" interest served by the challenged action, it will withstand the rational basis review.

Front 251

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

Back 251

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

Front 252

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

Back 252

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

Front 253

What is a plurality opinion?

Back 253

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

Front 254

Who currently serves as Chief Justice of the Supreme Court?

Back 254

John Roberts

Front 255

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

Back 255

Ginsburg, Sotomayor, Kagan, and Breyer

Front 256

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

Back 256

Thomas, Scalia, Alito, and Roberts.

Front 257

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

Back 257

The court looked at the parents traditional interest in the upbringing of their child. They gave great deference to the parents in making the determination of admitting their child.

Front 258

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

Back 258

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 259

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

Back 259

Failed to apply strict scrutiny in its decision affirming the admissions policy.

Front 260

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

Back 260

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 261

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

Back 261

Section 3 of the Defense of Marriage Act, which federally defined marriage as a union between one man and one woman as husband and wife, is unconstitutional under the Fifth Amendment Due Process Clause's guarantee of equal protection. The federal government must recognize same-sex marriages that have been approved by the states. It does not say that all states must allow marriages.

Front 262

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

Back 262

US v. Stevens invalidated a federal law that was intended to reach "crush videos" and similar materials. The Court majority held that the law at issue violated the First Amendment. The Court held invalidated the law on grounds of the overbreadth doctrine.

Front 263

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

Back 263

Statute was overbroad and invalid under the 1st Amendment. Court reasoned that depictions of animal cruelty are not categorically (“depiction of animal cruelty are not well defined and no tradition of excluding such depictions for 1st Amendment) uprotected by the 1st Amendment. Further, because a “substantial number of §48’s application are unconstitutional, the law is overbroad and invalid.

Front 264

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 264

It first held that "video games qualify for First Amendment protection":
Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection.
Justice Scalia then affirmed that, while states may pass laws to block obscene material from minors as previously decided in the 1968 Ginsberg v. New York case, "speech about violence is not obscene," and California's statute was unlawful. Also Industry self regulation was sufficient.

Front 265

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

Back 265

They believed the “threshold requirement’ that guides what material should be covered by the law was too broad, and questioned double standard that existed between violence and sexual content in regards to the threshold. Also, the argued there was no connection between playing violent video games and reading a book.

Front 266

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

Back 266

Parents have complete authority over their minor children and expected parents to direct the development of their children. 1st Amendment does not include a right to speak to minors without going through minor’s parents.

Front 267

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

Back 267

Opinion of majority conflicts with previous opinions of Ginsberg and Miller. Breyer further argued that "This case is ultimately less about censorship than it is about education," believing that the Government has a vested interest in allowing parents to make decisions for their child as to "raise future generations committed cooperatively to making our system of government work," and that "California's law imposes no more than a modest restriction on expression

Front 268

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

Back 268

NAACP v. Alabama – No, disclosure of the list will subject members to adverse consequences including economic, physical and other forms of public hostility. In essence, this will limit Petitioner’s member’s ability to advocate their beliefs, and it will dissuade others from joining the organization for fear of retribution. An association may assert the rights of its membership when the rights of the individual members are tightly interrelated to the interest of the association.

Front 269

What Justice in what case wrote the following: "The censorship we now confront is vast in its reach...By suppressing the speech of manifest 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 the interests. Factions will necessarily form in our Republic, but the remedy of "destroying the liberal 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 cont. thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."?

Back 269

Justice Kennedy – Citizens United v. Federal Elections Commission.

Front 270

Describe the First Amendment stance on compelled speech.

Back 270

The freedom of speech prohibits the government from telling people what they must say. See Barnette & Wooley & Rumsfeld.
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein."

Front 271

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

Back 271

Several features of appellee's organization place it outside the category of highly personal relationships entitled to constitutional protection against unjustified interference by the State. Local chapters are neither small nor selective, no criteria being employed for judging applicants for membership. Moreover, many of the activities central to the formation and maintenance of the association of members with one another involve the participation of strangers to that relationship, numerous nonmembers of both genders regularly participating in a substantial portion of the activities. Accordingly, local chapters lack the distinctive characteristics that might afford constitutional protection to their members' decision to exclude women.

Front 272

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

Back 272

In Rumsfeld, the Court was unanimous in ruling that the Solomon Amendment in no way violates the First Amendment rights to free speech and association. It did not compel the law schools to strongly express the government’s speech as in West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), but only made a certain form of non-expressive speech mandatory. This does not amount to infringement upon freedom of speech. The fact that the statute did not seek to force the admission of military recruiters into the law schools as members prevented FAIR’s claim in respect of freedom of association as well. While Boy Scouts, if forced to accept an openly gay scoutmaster they would be compelled to alter their message stated in their oath.

Front 273

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

Back 273

No the State cannot mandate the Boy Scouts of America to accept homosexuals b/c it would infringes on the Scout’s right of expressive association. The Supreme Court ruled that an association is expressive whenever it engages in expressive activity not just when the association is for the purpose of expressing a particular message.

Front 274

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

Back 274

The Court held that the Due Process clause of the Fourteenth Amendment requires a judge to recuse himself not only when actual bias has been demonstrated or when the judge has an economic interest in the outcome of the case, but also when "extreme facts" create a "probability of bias.

Front 275

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 275

In Republican Party of Minnesota v. White, the Court held that "Announce clauses" of judicial ethics codes which prohibit judicial candidates from announcing their views on how disputed legal or political issues be decided are unconstitutional

Front 276

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

Back 276

No, Compelling a salute to the flag infringes upon an individual’s intellect and right to choose their own beliefs. The majority focuses on the right of persons to choose beliefs and act accordingly. The state has not power to mandate allegiance in hopes that it will encourage patriotism.

Front 277

What are asymmetrical contribution limits and are they constitutional?

Back 277

The Opposition Personal Funds Amount is a statistic comparing competing candidates' personal expenditures and taking account of certain other fundraising. When a “self-financing” candidate's personal expenditure causes the OPFA to pass $350,000, a new, asymmetrical regulatory scheme comes into play. The self-financing candidate remains subject to the normal limitations, but his opponent, the “non-self-financing” candidate, may receive individual contributions at treble the normal limit from individuals who have reached the normal limit on aggregate contributions, and may accept coordinated party expenditures without limit.

Front 278

What is a blanket primary?

Back 278

The blanket primary is a system used for selecting political party candidates in a primary election in the USA. In a blanket primary, voters may pick one candidate for each office without regard to party lines; for instance, a voter might select a Democratic candidate for governor and a Republican candidate for senator. In a traditional blanket primary the candidates with the highest number of votes for each office in each party advance to the general election, as the respective party's nominee.

Front 279

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

Back 279

In Wooley v. Maynard, the Court held that New Hampshire could not constitutionally require citizens to display a state motto that went against an individual's morality upon their vehicle license plates.

Front 280

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

Back 280

Davis v. FEC, held that campaign finance limitations not only must equally apply to all candidates, Alito argued from precedent, but they must be narrowly drawn to advance important governmental interests (such as avoiding corruption in the political process). But Section 319(a) not only did not provide a level playing field, it fundamentally restricted the right of a self-financing candidate to spend his or her own money in a preferred way. No important governmental interest was advanced, Alito held, because (as the Court had held in Buckley v. Valeo, 424 U.S. 1 in 1976) a reliance on personal expenditures fundamentally reduces the likelihood of corruption.

Front 281

What justice in what case wrote the following: "In the context of election to public office, the distinction between corporate and human speaking is significant. Although they make enormous contributions to our society, corporation are 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 interview of eligible voters. The financial resources, legal structures, and instrumental orientation corporations raise legitimate concerns about their role in the electoral process."

Back 281

Justice Stevens in Citizens United v. Federal Election Commission

Front 282

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

Back 282

The Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First or the Fourteenth Amendment

Front 283

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

Back 283

Kennedy states that "content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. Since, the law in question is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent. No further inquiry is necessary to reject the State's argument that the statute should be upheld. The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose.

Front 284

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

Back 284

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

Front 285

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

Back 285

Austin prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First or the Fourteenth Amendment.
Buckley v. Valeo interpreted freedom of speech to include spending money.

Front 286

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

Back 286

The Court held that California's blanket primary violates a political party's First Amendment freedom of association

Front 287

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 287

The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket.

Front 288

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 288

The Ten Commandments Cases. There doesn't appear to be any consistency with the answers and then the unexplained ability for Breyer to distinguish Texas from Kentucky.

Front 289

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

Back 289

It should apply more forcefully to Statutory cases, because a wrong interpretation can be rememdied by legislatures changing the law. Cases deciphering the meaning of the Constitution have a more circuitious route and thus have potential for greater harm. If stare decisis was the lone principle then Plessy would still be good law.

Front 290

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

Back 290

Ginsberg, Sotomayor, Kagan, Breyer

Front 291

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

Back 291

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

Front 292

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

Back 292

Citizens United overruled Austin, Five out of nine judges held on United States Supreme Court that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations, or labor unions. This followed a line of decisions starting with Buckley v. Valeo, 424 U.S. 1 (1976) interpreting freedom of speech to include spending money.

Front 293

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

Back 293

Individual Right v. State's Right. Does the 2nd Amendment grant individuals the right to bear arms or does it grant States the right to arm formal military units.

Front 294

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

Back 294

It determined whether the Second Amendment applies to the individual states. The Court held that the right of an individual to "keep and bear arms" protected by the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. The decision cleared up the uncertainty left in the wake of District of Columbia v. Heller as to the scope of gun rights in regard to the states.

Front 295

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

Back 295

Thomas agrees that the 14th allows for the right to bear arms. However, he arrives at that conclusion by saying it is not through DPC, instead the "Privileges and Immunities" clause.

Front 296

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

Back 296

Strict Scrutiny

Front 297

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

Back 297

Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.

Front 298

In justice O’Connor’s concurrence in Glucksberg, what issue does she emphasize remains undecided?

Back 298

Whether a mentally competent person experiencing suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death.

Front 299

Explain the differing results in Jacobsen v. Massachusetts (1905) and Wisconsin
v. Yoder (1972).

Back 299

Jacobsen the court held that states could require immunization of students despite religious objection.
Yoder the court held that states could not require parents to send students to school past 8th grade because of religious objections.
The difference is because

Front 300

Explain whether the rule of Metro Broadcasting v. FCC (1990) remains good law.

Back 300

Metro was overruled by Adarand in that even "benign" racial classifications are still subject to strict scrutiny analysis.