Constitutional Law Ii - Mcmillan

Front 1

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

Back 1

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

Front 2

What is meant by procedural due process?

Back 2

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

Front 3

What two questions underlie procedural due process analysis?

Back 3

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

Front 4

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

Back 4

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

Front 5

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

Back 5

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 (19 72) 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

2nd Amendment right to bear arms,
3rd Amendment rights against quartering of soldiers
5th Amendment right to an indictment by a grand jury, and
7th Amendment right to a jury trial in civil lawsuits.

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

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

Back 30

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

Front 31

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

Back 31

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

Front 32

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

Back 32

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

Front 33

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

Back 33

Planned Parenthood v Casey

Front 34

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

Back 34

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

Front 35

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

Back 35

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

Front 36

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

Back 36

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

Front 37

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

Back 37

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

Front 38

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

Back 38

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. (page 554)

Front 47

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

Back 47

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

Front 48

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

Back 48

Freedom of personal choice in matters of marriage and family life

Front 49

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

Back 49

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

Front 50

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

Back 50

Courts should look at whether the rights and liberties are “deeply rooted in this Nation’s history and tradition.” (page 534)

Front 51

In Justice O'Connor's concurrence in Cruzan v. Director, Missouri Department of Health (1990), what issue does she emphasize remains undecided?

Back 51

The question not addressed is “whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death.” (page 536)

Front 52

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

Back 52

Wisconsin v. Yoder (education past the 8th grade) is a parental choice about child-rearing that does not impose harm on the child or on society are fundamental liberties that the government may interfere only by overcoming strict scrutiny. All other regulations are subject only to minimal scrutiny of the regulation. This is the Jacobson v. Massachusetts in which the state statute requires immunization. The difference is between Jacobsen and Yoder is that in Yoder there is no harm to the child or society but an unimmunized person can be dangerous to themselves and to others around them. (page 524 Note 4c. Jacobsen is on page 1078.)

Front 53

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

Back 53

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 54

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

Back 54

The distinction between withdrawing life support and assisting suicide

Front 55

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

Back 55

Equal Protection Clause (page 530)

Front 56

Is suicide a constitutional right? Explain.

Back 56

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 57

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

Back 57

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

Front 58

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

Back 58

“Washington’s assisted suicide bad does not violated 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 59

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 59

Scalia: Lawrence v Texas

Front 60

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

Back 60

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

Front 61

What is the unconstitutional conditions doctrine?

Back 61

Government may not require a person to surrender his property in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. p. 589

Front 62

What is the rule of Lucas v. South Carolina Coastal Council (1992)?

Back 62

A regulation results in a taking when it “denies all economically beneficial or productive use of land.”

Front 63

What justice in what case wrote the following: "[T]he 'substantially advances' formula suggests a means-end test: It asks, in essence, whether a regulation of private property is effective in achieving some legitimate public purpose. [While this] has some logic in the context of a due process challenge, for a regulation that fails to serve any legitimate governmental objective may be so arbitrary or irrational that it runs afoul of the Due Process Clause[, it] reveals nothing about the magnitude or character of the burden a particular regulation imposes upon private property rights. Nor does it provide any information about how any regulatory burden is distributed among property owners."

Back 63

O’Connor: Lingle v. Chevron

Front 64

What is conceptual severance?

Back 64

The idea that property affected by a regulation might be conceptually severed into two parcels one of which bears the full impact of the regulations.

Front 65

How does the concept of average reciprocity of advantage work in takings cases?

Back 65

The idea suggests that if a regulation imposes a burden on a landowner, unless the burden imparts an equal reciprocal benefit to him, it is a taking.

Front 66

What are three per se rules that apply to regulatory takings?

Back 66

1) There is no taking if government regulation merely abates a common law nuisance.
2) A taking has occurred when government regulations produce a permanent physical occupation of private property.
3) A taking has occurred when government regulations (other than nuisance abatement) leave the owner with no economically viable use of his property.

Front 67

What is a regulatory taking?

Back 67

When the state restricts use of a property so extensively that it amounts to a de facto taking, even though the government may deny that it is taking the property.

Front 68

What is a conditional regulatory taking?

Back 68

A valid regulatory scheme that by itself is not a taking – for example, an ordinance that requires a property owner to obtain a building permit before beginning new construction (think Nollan/Dolan) (page 588).

Front 69

How is just compensation determined?

Back 69

Loss of value in terms of the Fair Market Value of the property.

Front 70

Through what constitutional provision does the Takings Clause apply to local governments?

Back 70

Fourteenth Amendment (page 558)

Front 71

Where in the Constitution is the Takings Clause found?

Back 71

5th Amendment

Front 72

What's the test for determining what constitutes a "public use"?

Back 72

Public use is satisfied only when the government acts to deliver a public good or a quasi-public good by condemnation. In applying this standard, it is essential to determine that the resulting use is unlikely to be one that would be provided to the public by private action (page 562, paragraph 3, letter “C”).

Front 73

What standard of review is applied to reviews of a government's exercise of its eminent domain power?

Back 73

Intermediate (page 559).

Front 74

How does Lingle v. Chevron (2005) alter takings jurisprudence?

Back 74

It established that regulatory takings challenges are to be governed by the standards set forth in Penn Central, rejecting the standard in Agins v. City or Tiburon (pages 100 – 101 in the supplement).

Front 75

What is a constructive permanent physical taking?

Back 75

When the government’s action is found to be a taking, even when the land is not literally being used. Example: US v. Causby, where the Court found a taking due to continuous government aircraft flights over Causby’s land (page 576).

Front 76

Describe the balancing approach of Penn Central Transportation Co. v. New York City.

Back 76

To determine if a regulatory taking has occurred, a court is to weigh the economic impact of the regulation on the claimant, particularly the extent to which the regulation has interfered with investment-backed expectations, and the character of the governmental action.

Front 77

Explain the significance of Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002).

Back 77

Moratoria are not takings and are thus not compensatable. “…a temporary restriction that merely causes a diminution on value is not [a taking]”. (page 584)

Front 78

What is the relationship between nuisance law and takings law?

Back 78

Nuisance regulations can have the effect of a regulatory taking, but they are not subject to compensation. There is no taking, no matter what the economic impact of the regulation, if government regulation of property merely abates a common law nuisance (page 577).

Front 79

What is the essential nexus test?

Back 79

This test comes from Nollan v. California Coastal Commission. It is the first part of the two part test that an exaction must meet. The test is that there must be an “essential nexus” between the exaction and a legitimate state interest that it serves.

Front 80

What is eminent domain?

Back 80

The inherent power of a governmental entity to take privately owned property, espage land, and convert it to public use, subject to reasonable compensation for the taking. (Black’s Law Dictionary).

Front 81

Where in the Constitution is the Contracts Clause found?

Back 81

Article 1, §10

Front 82

How did the Supreme Court resolve the Yazoo land fraud situation?

Back 82

The Court held that Georgia could not rescind its conveyance of its “Yazoo” lands (present-day Alabama and Mississippi), even though the original sale contracts had been procured by massive bribery of a thoroughly corrupt Georgia legislature (page 595).

Front 83

What is the only constitutional case in which John Marshall dissented?

Back 83

Ogden v. Saunders, in 1827

Front 84

What was the specific concern of the Framers in putting the Contracts Clause in the Constitution?

Back 84

“…the clause was intended to prevent the states from enacting laws relieving debtors of their contractual obligations and thereby depriving creditors of their contractual rights, as several states, particularly Rhode Island, and done in the decade prior to the adoption of the Constitution.” (page 595)

Front 85

Does the majority in Home Building & Loan Association v. Blaisdell (1934) reflect an
interpretivist or non-interpretivist approach to constitutional interpretation?

Back 85

Non-interpretivist (page 597)

Front 86

What justice in what case wrote the following: "[A] provision of the Constitution [does] not
mean one thing at one time and an entirely different thing at another time."?

Back 86

Sutherland in Home Building & Loan Ass’n v. Blaisdell (page 599)

Front 87

What is the concept of "incidental impairment"?

Back 87

When a state’s law creates an effect on contracts that is not intended; the effect is a by-product of the law (page 607).

Front 88

What test is used in assessing challenges to laws impairing the obligations of contracts?

Back 88

“Substantial impairments (those reasonably foreseeable and not financially overwhelming) are valid if the state has a legitimate and significant public purpose for the impairment, the impairment is reasonable, and it is of a character appropriate to the public purpose…Severe impairments (those unforeseeable and financially overwhelming) are valid only if the state can prove that the impairment is temporary, reasonable in scope, and directly related to a compelling or emergency objective.” (page 608).

Front 89

How are public and private contracts analyzed differently under the Contracts Clause?

Back 89

A public contract is subject to heightened scrutiny because a state is a party to such contract and thus infected with self interest (page 604).

Front 90

Explain Justice Kennedy's concurrence in Kelo v. City of New London (2005).

Back 90

Kennedy stated that a court should use a rational basis for review of cases such as Kelo. He also stated that cases such as this should have a presumption that the government’s actions were reasonable and intended to serve a public purpose, yet still should be scrutinized to make sure that private parties were not being favored (page 92, supplement).

Front 91

In Kelo v. City of New London (2005), how does Justice O'Connor distinguish the Court's
previous public use rulings from the taking at issue in Kelo?

Back 91

“[In Berman and Midkiff], the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society – in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. In Kelo, in contrast, New London does not claim that the…homes [in question] are the source of any social harm.” – quoted from the text on page 94, supplement

Front 92

How did state governments respond to the Kelo v. City of New London (2005) decision?

Back 92

By April 2007 at least 36 stated had adopted additional limits on the eminent domain power as it relates to economic development.

Front 93

What justice in what case wrote the following: "So-called 'urban renewal' programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending, the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities."?

Back 93

Thomas in Kelo v. City of New London (page 98 in the supplement)

Front 94

Explain whether County of Wayne v. Hathcock (Mich. 2004) remains good law following
Kelo v. City of New London (2005).

Back 94

Yes, although Kelo establishes the federal minimum definition of public good in analyzing eminent domain cases, Michigan is free to have heightened standards.

Front 95

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 95

The ban on handgun possession in the home as did the prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. (page 203, supplement)

Front 96

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

Back 96

“[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 97

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

Back 97

5

Front 98

What proposition does United States v. Miller (19 39) stand for?

Back 98

“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” (page 201, in the supplement)

Front 99

What is the prefatory clause of the 2nd Amendment?

Back 99

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

Front 100

What is the operative clause of the 2nd Amendment?

Back 100

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

Front 101

Explain the importance of Footnote 4 from Carolene Products.

Back 101

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 102

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

Back 102

Rational basis

Front 103

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

Back 103

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 104

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

Back 104

Fifth Amendment due process clause of the United States Constitution

Front 105

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

Back 105

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 106

What are the three suspect classifications for equal protection purposes?

Back 106

Race;
Ethnicity or national origin; and
Lawful resident alienage

Front 107

What is reverse incorporation?

Back 107

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 108

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

Back 108

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

Front 109

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

Back 109

Brown v. Board of Education of Topeka

Front 110

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 110

Justice Jackson in Korematsu v. United States

Front 111

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

Back 111

Bolling v. Sharpe

Front 112

What are Jim Crow laws?

Back 112

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 113

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

Back 113

9-0

Front 114

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

Back 114

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 115

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

Back 115

Plessey v. Ferguson

Front 116

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

Back 116

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

Front 117

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

Back 117

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

Front 118

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

Back 118

“Mere rationality” review

Front 119

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 119

Justice Harlan in Plessey v. Ferguson

Front 120

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

Back 120

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

Front 121

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 121

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 122

What does unitary status mean?

Back 122

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 123

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

Back 123

The result would be the same. The decision was 6-3 that the university’s point system was too mechanistic in admissions, and even with the addition of Roberts and Alito it wouldn’t swing the vote the other way.

Front 124

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

Back 124

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 125

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

Back 125

Adarand Constructors, Inc. v. Pena

Front 126

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 126

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

Front 127

What is a less restrictive alternative?

Back 127

The court held that the content based restriction on speech-specifically section 505 of the CDA – violated the First Amendment because the government could have furthered its interests in less restrictive ways.

Front 128

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

Back 128

The rational relationship test and the strict scrutiny test. The division is based on the existence or non-existence of a suspect classification.

Front 129

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 129

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 130

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 130

6

Front 131

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 131

Blackmun in Regents of the University of California v. Bakke

Front 132

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 132

Roberts in Parents Involved in Community Schools v. Seattle School District No. 1; Meredith v. Jefferson County Board of Education

Front 133

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 133

Powell

Front 134

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 134

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

Front 135

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

Back 135

Metro Broadcasting’s rule, which subjected benign racial preferences used by the federal government to intermediate scrutiny, was overruled in Adarand with the rule that all racial classifications by any level of government must be subjected to strict scrutiny.

Front 136

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

Back 136

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

Front 137

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

Back 137

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 138

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

Back 138

As a district’s demographics shift, so too will it definition of diversity. Racial balancing, which imposes racial proportionality, violates the equal protection guarantee that the Government must treat citizens as individuals not as components of a class.

Front 139

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

Back 139

Skepticism, Consistency and Congruence

Front 140

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

Back 140

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 141

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

Back 141

Intermediate standard of judicial review

Front 142

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

Back 142

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 143

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

Back 143

Fundamental rights have special significance under the 14th Amendment to the Constitution. Via the due process and equal protection clauses of that amendment, the Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose.

Front 144

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

Back 144

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

Front 145

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

Back 145

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 146

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

Back 146

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 147

What are the three equal protection-only fundamental rights?

Back 147

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

Front 148

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 148

Ginsburg in U.S. v. Virginia

Front 149

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

Back 149

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 150

What is the difference between positive rights and negative rights?

Back 150

positive rights are those rights which permit or oblige action, whereas negative rights are those which permit or oblige inaction

Front 151

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

Back 151

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 152

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 152

United States v. Virgina (Virginia Military Institute case) refer to Craig v. Boren.

Front 153

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 153

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

Front 154

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

Back 154

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

Front 155

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

Back 155

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

Front 156

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

Back 156

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 157

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 157

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

Front 158

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

Back 158

Rational Basis because Congress can change immigration laws.

Front 159

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 159

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

Front 160

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

Back 160

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

Front 161

What is the clear and present danger test?

Back 161

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 162

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

Back 162

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 163

What is categorical balancing?

Back 163

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

Front 164

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

Back 164

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 165

Provide an example of a content-based regulation.

Back 165

No political speech in the park

Front 166

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

Back 166

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

Front 167

(7) Name four categories of speech that receive limited constitutional protection.

Back 167

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

Front 168

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

Back 168

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 169

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

Back 169

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 170

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

Back 170

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 171

Explain the concept of low-value speech.

Back 171

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 172

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

Back 172

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 173

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

Back 173

Strict scrutiny

Front 174

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

Back 174

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

Front 175

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

Back 175

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

Front 176

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

Back 176

Intermediate

Front 177

What is a viewpoint-based regulation?

Back 177

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 178

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

Back 178

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 179

Provide an example of a content-neutral regulation.

Back 179

Sound amplification equipment may not be used after the hour of 8PM within ¼ of a mile from a residential neighborhood.

Front 180

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

Back 180

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

Front 181

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

Back 181

Fighting Words

Front 182

What is the distinction between indecent speech and obscene speech?

Back 182

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

Front 183

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

Back 183

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 184

What is a heckler's veto?

Back 184

It’s when the audience takes control and their actions stops the speech from going forward, like in Feiner.

Front 185

What is hate speech?

Back 185

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

Front 186

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

Back 186

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

Front 187

What are three arguments in favor of regulating hate speech?

Back 187

, 1. Low social value/akin to defamation; 2. For of fighting words; and 3. Hate speech may violate equal protection. The constitution is color-blind in regards to race and the only way to get over race is to talk about race.

Front 188

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

Back 188

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

Front 189

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 189

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

Front 190

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

Back 190

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 191

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

Back 191

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 192

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

Back 192

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 193

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

Back 193

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

Front 194

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

Back 194

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 195

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

Back 195

targeted blocking

Front 196

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 196

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

Front 197

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 197

Justice Black dissenting in Beauharnais v. Illinois

Front 198

What is a captive audience?

Back 198

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 199

What are some arguments against the regulation of hate speech?

Back 199

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 200

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

Back 200

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 201

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

Back 201

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

Front 202

What is a public forum?

Back 202

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

Front 203

What is the secondary effects doctrine?

Back 203

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

Front 204

What is the Tinker test?

Back 204

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 205

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

Back 205

Intermediate. Page 928

Front 206

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 206

Justice Stevens. Texas v. Johnson

Front 207

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

Back 207

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

Front 208

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

Back 208

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 209

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 209

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 210

What is symbolic conduct?

Back 210

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

Front 211

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

Back 211

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 212

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

Back 212

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 213

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 213

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 214

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

Back 214

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 215

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

Back 215

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 216

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

Back 216

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 217

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 217

The test to determine the validity of an ordinance restricting the location of adult theaters is whether it is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. p. 945

Front 218

Explain whether the Flag Protection Act of 1989 is constitutional.

Back 218

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 219

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

Back 219

Strict

Front 220

What is a total medium ban?

Back 220

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 221

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 221

Justice Rehnquist in McConnell v. Federal Election Commission.

Front 222

What is the overbreadth doctrine?

Back 222

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 223

What is a prior restraint?

Back 223

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 224

What is the freedom of association?

Back 224

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

Front 225

What is soft money?

Back 225

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 226

What are the salient features of an overbroad statute?

Back 226

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

Front 227

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

Back 227

Asymmetrical Contribution limits

Front 228

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

Back 228

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

Front 229

What's the difference between overbreadth and vagueness?

Back 229

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 230

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

Back 230

They are presumptively void. Content based is more likely to be restrained.

Front 231

What is the First Amendment problem with vague laws?

Back 231

They chill speech and permit viewpoint-based enforcement.

Front 232

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

Back 232

Ban on soft money by the national party, prohibitions against corporations and labor unions to use general treasury funds to effect the outcome of federal elections, bans on electioneering activities, political contribution by minors, solicitation for tax-exempt organizations.

Front 233

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

Back 233

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

Front 234

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

Back 234

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

Front 235

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

Back 235

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 236

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

Back 236

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

Front 237

Why have the overbreadth doctrine?

Back 237

It protects constitutionally unprotected speech by also regulating protected speech.

Front 238

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

Back 238

George W. Bush

Front 239

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

Back 239

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 240

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

Back 240

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 241

What two clauses of the First Amendment protect religious freedom?

Back 241

The Establishment Clause and the Free Exercise Clause

Front 242

What is the Lemon test?

Back 242

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 243

What is meant by the "wall of separation"?

Back 243

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

Front 244

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

Back 244

The wall of separation and the nonpreferential view.

Front 245

What are the three primary categories of Establishment Clause litigation?

Back 245

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

Front 246

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

Back 246

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 247

For First Amendment purposes, what constitutes religious belief?

Back 247

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 248

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

Back 248

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

Front 249

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

Back 249

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

Front 250

What does sectarian mean?

Back 250

Having to do with religious beliefs.

Front 251

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 251

Yes

Front 252

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

Back 252

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

Front 253

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

Back 253

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

Front 254

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 254

Scalia in Smith v. Employment Division

Front 255

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

Back 255

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

Front 256

Explain the nonpreferential view of the Establishment Clause.

Back 256

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

Front 257

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

Back 257

Congress enacted the Religious Freedom Restoration Act relying on the 14th Amendment’s provision that allows Congress to enforce by appropriate legislation the 14th Amendment’s including the incorporation of the due process and free exercise clause. The United States Supreme Court struck down RFRA. Congress then enacts the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Front 258

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

Back 258

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

Front 259

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 259

Marshall in Mueller v. Allen

Front 260

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

Back 260

That denial of benefits was an infringement on her constitutional rights and the burden was not justified by a compelling state interest.

Front 261

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

Back 261

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 262

What landmark case struck down official prayer in public schools?

Back 262

Engle v. Vitale

Front 263

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

Back 263

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 264

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 264

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

Front 265

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

Back 265

“God save the United States and this Honorable Court”

Front 266

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

Back 266

Yes, because they subject attending school children to psychological coercion

Front 267

Are Sunday closing laws constitutional?

Back 267

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

Front 268

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

Back 268

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

Front 269

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

Back 269

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

Front 270

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

Back 270

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

Front 271

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 271

Scalia in Lee v. Weismsan

Front 272

What is the anticoercion principle?

Back 272

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

Front 273

What is the neutrality principle?

Back 273

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 274

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 274

Because the town was using the display as a secular symbol of Christmas, and not as a means of promoting religion.

Front 275

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 275

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

Front 276

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

Back 276

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

Front 277

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 277

Justice Thomas’ concurrence in Zelman v. Simmons-Harris

Front 278

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

Back 278

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

Front 279

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

Back 279

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 280

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 280

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 281

Name each justice who presently serves on the Supreme Court.

Back 281

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

Front 282

What is strict scrutiny?

Back 282

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

Front 283

What is intermediate scrutiny?

Back 283

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

Front 284

What is minimal scrutiny?

Back 284

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

Front 285

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

Back 285

William Howard Taft

Front 286

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

Back 286

Kennedy

Front 287

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

Back 287

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

Front 288

What is stare decisis?

Back 288

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

Front 289

What are a state's police powers?

Back 289

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

Front 290

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

Back 290

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

Front 291

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

Back 291

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

Front 292

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

Back 292

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

Front 293

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

Back 293

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

Front 294

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

Back 294

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

Front 295

What is a plurality opinion?

Back 295

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

Front 296

Who currently serves as Chief Justice of the Supreme Court?

Back 296

John Roberts

Front 297

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

Back 297

Souter, Ginsburg, Breyer, and Stevens.

Front 298

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

Back 298

Thomas, Scalia, Alito, and Roberts.