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82 Cards in this Set
- Front
- Back
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The Establishment Clause
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"Congress shall make no law respecting the establishment of religion..."
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Federalism reading of the establishment clause
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establishment clause protects states from federal interference not individuals
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Everson vs. Ewing Township Bd. of Ed.
year and overview |
-1947
-NJ reimburses students for travel to and from school -Law says students are eligible if their school is public or non-profit |
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Everson vs. Ewing Township Bd. of Ed.
opinions |
Majority: -State bill is constitutionally permissible
-Establishment Clause erects a "wall of separation between church and state" Jackson dissents: -law is discriminatory to certain institutions and criteria for aid is not neutral |
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Lemon vs. Kurtzman
year and overview |
-1971
-Pennsylvania and Rhode Island subsidize secular instruction in private schools |
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3 part test developed in Lemon vs. Kurtzman
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If any of these 3 prongs are violated, the government's action is deemed unconstitutional under the Establishment Clause:
1) Secular legislative purpose 2) Primary effect must neither advance nor prohibit religion 3) Avoids excessive gov't entanglement with religion |
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Lemon vs. Kurtzman
outcome and opinion |
-court finds against the law saying that it involved "excessive entanglement"
-3 part test developed |
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Zelman vs. Simmons-Harris
year and oveview and outcome |
-2002
-Cleveland school voucher program gives payment and vouchers to students who go to any private school or any public school in a neighboring district -court approves program |
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Sherbert vs. Verner
year and overview |
-1963
-sherbert fired because she refused to work on saturday -all jobs available required her to work on saturday -she said the state prohibited her exercise of religion, claimed burden on free exercise |
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Sherbert vs. Verner
outcome and opinion |
-court said denying Sherbert's claim was an unconstitutional burden on the free exercise
-court established Sherbert test |
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Sherbert test
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State rule must pass 2 arguments/tests:
1) Law must further a compelling state interest 2) Must use least restrivtice means to secure the interest The test requires the court to consider the sincerity of beliefs and whether the beliefs are in fact religious |
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Employment Division of Oregon vs. Smith year and overview
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-1990
-Smith fired from job for using peyote, claimed burden of free exercise of religion |
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Employment Division of Oregon vs. Smith opinion
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-court finds against Smith
-court says: protection of the "free exercise" of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws |
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Scalia's opinion in Employment Division of Oregon vs. Smith
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Schelia replaces Sherbert test:
Any burden on free exercise must: 1) Further a secular purpose 2) Be generally applicable |
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Freedom of contract clause comes from
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the due process clause of the 14th amendment
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Substantive Due Process Takings Clause: 1790's - 1830's
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Court used contracts clause to protect property rights from the states
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Substantive Due Process Takings Clause: 1870's - 1890's
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Police Powers in the states were considered to e within the reserved powers of the states
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Police Powers
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the power to regulate in the interest of the health, safety, morals and welfare of the public
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Substantive Due Process Takings Clause: 1890's - 1930's
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Court uses 14th amendment to protect the Freedom of Contract
-substantive due process |
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Substantive Due Process Takings Clause: 1930's - 1970's
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-return to police powers
-constitution gives higher protection to property rights than to civil rights -court takes position of deference to legislatures when it comes to economic and property rights |
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Substantive Due Process Takings Clause: 1890's - present
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-new form of property rights
-uses takings clause |
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Substantive Process
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"... no person shall be deprived of life, liberty, or property without due process of law." - 14th amendment
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Takings Clause
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-limits the power of eminent domain by requiring that "just compensation" be paid if private property is taken for public use
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Eminent Domain
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the power of the gov't to take private property for "public use"
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Freedom of Contract
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the freedom of individuals to bargain among themselves the terms of their own contracts, without government interference
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Slaughterhouse Cases
year and overview |
-1873
-14th amendment merely remedies racial discrimination -14th amendment is concerned with individuals, not groups |
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Munn vs. Illinois
year and overview |
-1877
-Cap on charges for grain storage -extent of legislative authority? |
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Munn vs. Illinois
opinions |
-Majority: Upholds law: Public use is anything in which the public has an interest
-Field Dissents: Public must have a stake in the business |
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Lochner vs. NY
year and overview |
-1905
-Maximum hour regulation for baker employees was 60 hrs/wk and 10 hrs/day -case is basically Police Powers vs. Freedom of Contract |
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Lochner vs. NY
opinion |
court says: Freedom of Contract wins, state's regulation on hours is not a legitimate use of the police powers
-CONTROVERSIAL because Freedom of contract is not in the constitution |
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West Coast Hotel vs. Parish
year and overview |
-1937
- -"... regulation which is reasonable in relation to its subject and is adopted in the interest of the community is due process." -regulation may not be arbitrary |
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US vs. Carolene Products
year and overview |
-1938
-court adopts a presumption of constitutionality with respect to socio-economic activity -Results in footnote four |
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Footnote Four
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-From US vs. Carolene Products
-Court gives "narrower scope" to the presumption of constitutionality if legislation: 1) appears on its face to be within a specific prohibition of the constitution 2) restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation 3) manifests prejudice against discrete and insular minority |
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Takings Clause come from the __ amendment
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5th
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What constitutes a "Public Use"?
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-Use by the government
-ex. roads, schools, parks, etc... -Public use by a private entity -ex. Railroads -Private use by a private entity -ex. land redistribution, economic development |
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What constitutes a "taking"?
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-seizure of property
-regulatory takings |
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Types of regulatory takings
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-Physical Invasions
-Destruction of Value |
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Hawaii Housing Authority vs, Midkiff
year, overview and opinion |
-1984
-gov't takes land for redistribution -Majority (O'Connor): -public use = public benefit -court does not judge the wisdom of "socioeconomic" legislation |
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Kelo vs. New London
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-2005
-New London takes homes for economic development -Majority: -serves a public use: economic development -states can impose stricter guidelines -O'CONNOR DISSENTS |
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O'Connor's dissent in Kelo and its contrast with her opinion in Hawai Housing Authority
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O'Connor dissents in Kelo
-distinguishes the case from Hawaii vs, Midkiff -only allowable where "precondemnation of the targeted property inflated an affirmative harm on society." -basically says that taking in New London is not ok because no harm was being done by property before taking, but in Hawaii harm was being done before the taking |
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Nollan vs. California Coastal Commission
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-1987
-California Coastal Commission demanded a lateral public easement across the Nollans' beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house -Court finds in favor of Nollan |
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Lucas vs. South Carolina Coastal Council
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-1992
-Lucas buys two waterfront lots -South Carolina moves setback line behind houses causing property value to drop b/c Lucas can no longer build houses on the property -Court finds in favor of Lucas: Lucas's lots had been rendered valueless by the state law. "When the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good...he has suffered a taking. |
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Two types of regulation categorically qualify as a taking
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1) Regulation that "denies owner all economically viable use of his land
2) Regulation that results in a physical invasion of property |
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Reasoning behind Lucas decision
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The public may not impose the cost of public interest on an individual
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Degree of protection hinges on type of speech
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Protected:
-Political speech -Religious speech Partially Protected: -Commercial Speech -Artistic, scientific, and social value Not Protected: -Libel -Advocacy and incitement of treason -Fighting Words -Obscenity |
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Schenck vs. US
year and overview |
-1919
-Schenck is the general secretary of socialist party and opposes draft -passes out fliers opposing draft -fliers encourage draftees to "assert your rights" and avoid the draft |
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Schenck vs. US
opinion |
Unanimous Court:
-speech is not protected if it creates a clear and present danger -affirms conviction of Schenck |
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Brandenburg vs. Ohio
year and overview |
-1969
-Televised Clan speech: "There might have to be some revengence taken." |
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Brandenburg vs. Ohio
opinion |
-Court finds in favor of Brandenburg
-Court says: to be regulated, political speech must be directed to imminent and lawless action and be likely to produce such action -Douglas: Speech must be "brigaded with action" for it to be punished |
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US vs. O'Brien
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-1968
-court: a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. -results in O'Brien Test |
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O'Brien Test
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Law regulation speech is ok if:
-regulation is within the constitutional power of gov't -regulation furthers an important gov't interest -that gov't interest is unrelated to the suppression of expression -restriction is no greater than essential |
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Forum
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A place or opportunity for expression
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Adderley vs. Florida
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-1966
-Adderley and group walk onto private jail driveway and are told to leave by the sheriff, sheriff arrests those who stay -Court says: -Sheriff Justified -State may prohibit speech altogether -Restrictions must be non-discriminatory |
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Public Forum
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-Public property open for public use
-time, place and manner restrictions are permitted -content discrimination is prohibited |
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Limited Public Forum
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-Non-Public forum opened for limited purposes
-time, place, manner, and content restrictions ok in limited forums, but not viewpoint restrictions |
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Non-Public Forum
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includes public property closed to the public
-ex. prisons, airports, etc. |
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Rosenberger vs. UVA
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-1995
-Wide Awake is a student newspaper with christian viewpoint -school recognizes it as a legit group -school refuses to give money because it would be subsidizing a religious publication Court says: university must provide funding b/c school did not recognize them as a religious organization |
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Jefferson's Letter to Danbury Baptist Association
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First mentions separation of Church and State
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In the Slaughterhouse Cases the court declined to use the
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privlidges & immunities clause
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Article I section 9
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gives prohibitions on federal regulations
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John Marshall in _____ vs. _____ said that the bill of rights does not apply to the states
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Barron vs. Baltimore
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Gitlow vs. New York
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-1925
-state outlawed teaching and advocacy of anarchy -court said: 1st amendment does apply to the states (incorporating the 1st amendment) court ruled in favor of NY |
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Powell vs. Alabama
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-1932
-6th Amendment - any accused person has the right to council - considered to be permissive not compulsory -court said the right is compulsory in a capital case, but otherwise remains a permissive right |
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Fundamental Rights approach
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the due process clause protects fundamental rights
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Hugo Black
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Justice said we ought oto use total incorporation
-incorporate all bill of rights and only that |
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Selective Incorporation
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legal doctrine by which portions of the Bill of Rights are applied to the states through the Due Process Clause of the Fourteenth Amendment
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Gideon vs. Wainright
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-1963
-Gideon stole from a vending machine -requested attorney but state said they were not obliged to provide council -supreme court said that the right to council is always compulsory because without it the judicial process is not fair |
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Warrants must show
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persons and places to be searched and things to be seized
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5th Amendment
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No person shall be compelled to be a witness against himself
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Weeks vs. US
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-1914
-Weeks claimed US got evidence through illegal search -court establishes exclusionary rule in federal cases and overturns weeks conviction |
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Exclusionary rule
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evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution
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Wolf vs. Colorado
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-1949
-until 1949 4th amendment had not been incorporated -court says: exclusionary rule is not a fundamental right |
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The 4th Amendment was incorporated in _____ vs. _____
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Wolf vs. Colorado
-in it the court declines to apply exclusionary rule to the states |
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Mapp vs. Ohio
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-1961
-Police broke into Mapp's house without a search warrant -searched for a bomb suspect they thought ran into her house -4th amendment is a "form of words" without the exclusionary rule |
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rules prior to Miranda
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"Totality of Circumstances" rule
-look at all facts in case to determine if a "coerced confession" took place -council as security against coercion |
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Miranda vs. Arizona
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-1966
-conviction of Miranda based on confession -Miranda said he didn't know his rights -court said: accused must be informed of right to remain silent and council -Dissenters: the 5th amendment bars only undue coercion, advocate return to "totality of circumstances" |
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Nix vs. Williams
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-1984
-police never asked where girl was, only made an emotional appeal -man confessed to girls location -court said his rights were violated, but if the evidence had been inevitably discovered absent confession, it is still admissible |
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Inevitable discovery
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-prosecution should not be in a worse position than if no error had occurred
-rests on the same ground as the "independent source" rule |
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New York vs. Quarles
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-1984
-man captured with empty holster after running through grocery store, office demanded location of gun -Majority: formulates the "public safety" exception |
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Olmstead vs. US
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-1928
-whether the use of wiretapped private telephone conversations, obtained by federal agents without judicial approval and subsequently used as evidence, constituted a violation of the defendant’s rights -Court held that neither the Fourth Amendment nor the Fifth Amendment rights of the defendant were violated -decision was reversed by Katz vs. United States in 1967 |
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Katz vs. US
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-1967
-extended the Fourth Amendment protection from unreasonable search and seizure to protect individuals in a telephone booth from wiretaps by authorities without a warrant. |
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Areopagitica
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-defense of free speech written by John Milton
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