Con Law Lecture 2

Question 1

definition of procedural due process?

Answer 1

procedures the government must follow when taking away life, liberty, or property

Question 2

definition of substantive due process

Answer 2

asks: does the government have adequate reason to take away life, liberty or property?

Question 3

definition of equal protection

Answer 3

whether the government’s different treatment of people is adequately justified (turns on type of discrimination and level of scrutiny)

Question 4

what are the 2 steps in a procedural due process analysis?

Answer 4

1. Has there been a deprivation of life, liberty, or property?
2. what procedures are required?
   - balance the important interests of the individual, whether additional procedures would increase the accuracy of the fact finding, the government’s interest)

Question 5

what must be balanced on the second step of a DPC analysis to determine what procedures should apply?

Answer 5

1. importance of the interest to the individual
2. ability of additional procedures to increase the accuracy of the fact finding and
3. the government’s interests

Question 6

if an individual has not been deprived of life, liberty or property, does the government need to afford the individual due process?

Answer 6

no

Question 7

which level of scrutiny applies when there has been a challenge to a law dealing with an economic liberty?

Answer 7

rational basis

law upheld if it is rationally related to a legitimate government purpose

Question 8

what is an economic right?

Answer 8

a right dealing w/ employment, profession, or consumer protection

Question 9

where does the takings clause come from?

Answer 9

the 5th amendment

Question 10

what does the takings clause say?

Answer 10

the government may take private property for public use if it provides just compensation

*the taking is for public use if the gov acts w/ a reasonable belief the taking will benefit the public

Question 11

what does the contracts clause say and who does it apply to?

Answer 11

Says: no state shall impair the obligation of contracts

Applies only to state or local interference w/ existing contracts

Question 12

what type of scrutiny is applied when state or local interference w/ private contracts happens?

Answer 12

special intermediate scrutiny

1. does the legislation substantially impair a party’s rights under an existing contract?
2. if so, is the law a reasonably and narrowly tailored means of promoting an important and legitimate public interest?

Question 13

what type of scrutiny is applied when there is state or local interference with government contracts?

Answer 13

strict scrutiny

*law upheld if it is necessary to achieve a compelling government purpose

Question 14

is privacy a fundamental right protected under substantive due process?

Answer 14

yes

Question 15

what does the right to privacy include?

Answer 15

1. the right to marry
2. the right to procreate
3. the right to custody of one’s children
4. the right to keep the family together
5. the right to control the upbringing of one’s children
6. the right to purchase and use contraceptives
7. the right to an abortion
8. the right to engage in private consensual homosexual activities
9. the right to refuse medical treatment

Question 16

when can states not prohibit abortion?

Answer 16

prior to viability

Question 17

can states regulated abortion after the fetus is viable?

Answer 17

yes, so long as they do not create an undue burden on the ability to obtain abortions

Question 18

does the government have a duty to subsidize abortions or to provide abortions in public hospitals?

Answer 18

no

Question 19

are spousal consent and notification laws relating to abortion constitutional?

Answer 19

no

Question 20

is there a right to physiance assisted death?

Answer 20

no

Question 21

is the right to keep and bear arms absolute?

Answer 21

no, just have the right to keep guns in the home for protection. States can regulate who has guns, where guns are sold, and what type of guns people own

Question 22

has the SC announced a scrutiny standard for the second amendment?

Answer 22

no

Question 23

has the second amendment (right to bear arms) been incorporated so it applies to state and local governments?

Answer 23

yes

Question 24

a law preventing people from moving into a state protects the right to ____ and must meet ____ scrutiny

Answer 24

• the right to travel
• strict scrutiny

(Strict scrutiny = upheld if necessary to achieve a compelling government purpose)

Question 25

is there a fundamental right to international travel?

Answer 25

no

Question 26

laws that deny some citizens the right to vote must meet what type of scrutiny?

Answer 26

strict scrutiny | law upheld if necessary to achieve a compelling government purpose

Question 27

are at large elections constitutional?

Answer 27

yes unless there is proof of discriminatory purpose

Question 28

what type of scrutiny is applies when election district lines are drawn based upon race?

Answer 28

strict scrutiny | law upheld if necessary to achieve a compelling government purpose

Question 29

counting uncounted votes w/o standards in a presidential election violates what?

Answer 29

equal protection

Question 30

is there a fundamental right to education?

Answer 30

no

Question 31

when do you use equal protection analysis?

Answer 31

when the government draws distinctions b/t people

Question 32

what are the 3 steps in an EPC analysis?

Answer 32

1. what is the classification? 2. what level of scrutiny should be applied? 3. Does this law meet the level of scrutiny?

Question 33

does the 14th amendment concerning equal protection apply to the fed gov?

Answer 33

no, state and local governments only (equal protection applies to the fed gov through the DPC of the 5th amendment)

Question 34

In equal protection, what level of scrutiny is used when the government discriminates based on race or national origin?

Answer 34

strict scrutiny | law upheld if necessary to achieve a compelling government interest

Question 35

what are the 2 ways a racial classification is proven?

Answer 35

1. classification exists on the face of the law | 2. the law is facially neutral but demonstrates a discriminatory impact and discriminatory intent

Question 36

what level of scrutiny is applies to a government's racial classification that benefits a race?

Answer 36

strict scrutiny | law upheld if necessary to achieve a compelling government purpose

Question 37

can public school systems use race as a factor in assigning students to schools?

Answer 37

no unless strict scrutiny is met

Question 38

what level of scrutiny is used for an EPC challenge to a law using gender classification?

Answer 38

special intermediate scrutiny The law will be upheld if it is exceedingly persuasive justification

Question 39

what type of scrutiny is applied when the government discriminates based on alienage classifications?

Answer 39

strict scrutiny

Question 40

in what instances is it permissible for the government to discriminate based on alienage classifications?

Answer 40

1. voting 2. jury service 3. police officers 4. teacher 5. probation officer

Question 41

what level of scrutiny applies when the Congress specifically is discriminating against aliens?

Answer 41

rational basis (b/c congress has plenary power to regulate immigration)

Question 42

what level of scrutiny should be used for discrimination against undocumented alien children?

Answer 42

intermediate | law upheld if it is substantially related to an important government purpose

Question 43

what level of scrutiny is applied to discrimination against non-marital children

Answer 43

intermediate | law upheld if it is substantially related to an important government purpose

Question 44

what type of scrutiny is applied to review age discrimination?

Answer 44

rational basis | the law is upheld if it is rationally related to a legitimate government purpose

Question 45

what type of scrutiny is applied to review disability discrimination?

Answer 45

rational basis | the law is upheld if it is rationally related to a legitimate government purpose

Question 46

what type of scrutiny is applied to wealth discrimination?

Answer 46

rational basis | the law will be upheld if it is rationally related to a legitimate government purpose

Question 47

what type of scrutiny applies to economic regulations?

Answer 47

rational basis | the law will be upheld if it is rationally related to a legitimate government purpose

Question 48

what type of scrutiny applies to sexual orientation discrimination?

Answer 48

rational basis | the law will be upheld if it is rationally related to a legitimate government purpose

Question 49

content based restrictions on speech must meet which level of scrutiny?

Answer 49

strict | the law will be upheld if it is necessary to achieve a compelling government purpose

Question 50

content neutral laws that burden speech must meet which level of scrutiny?

Answer 50

intermediate | the law will be upheld if it is substantially related to an important government purpose

Question 51

court orders suppressing speech must meet what level of scrutiny?

Answer 51

strict | the law will be upheld if it is necessary to achieve a compelling government purpose

Question 52

when is a law considered unconstitutionally vague?

Answer 52

if a reasonable person cannot tell what speech is prohibited and what is allowed

Question 53

when is a law considered unconstitutionally overbroad?

Answer 53

when it regulates substantially more speech than the constitution allows to be regulated

Question 54

what type of words are automatically considered unconstitutionally vague and over broad?

Answer 54

fighting words

Question 55

when can the government regulate conduct that communicates?

Answer 55

1. when it has an important interest unrelated to suppression of the message and 2. if the impact on communication is no greater than necessary to achieve the government's purpose

Question 56

is burning a cross protected speech?

Answer 56

yes unless it is done w/ intent to threaten

Question 57

are contribution limits in election campaigns constitutional?

Answer 57

yes

Question 58

are expenditure limits in election campaigns constitutional?

Answer 58

no

Question 59

is anonymous speech protected?

Answer 59

yes

Question 60

can speech by the government be challenged as violating the 1st amendment?

Answer 60

no

Question 61

is obscenity and sexually oriented speech protected by the 1st amendment?

Answer 61

no

Question 62

what is the 3 part test to whether speech is obscene?

Answer 62

1. the material must appeal to the prurient interest 2. the material must be patently offensive under the law prohibiting obscenity (i.e. law must describe what's offensive) 3. taken as a whole, the material must lack serious redeeming artistic, literary, political, or scientific value

Question 63

may the government seize the assets of businesses convicted of violating obscenity laws?

Answer 63

yes

Question 64

when is profane and indecent speech not protected by the 1st amendment?

Answer 64

when it is used in broadcast media (free TV and radio) and in schools

Question 65

is advertising for illegal activity and false deceptive ads protected by the 1st amendment?

Answer 65

no

Question 66

can true commercial speech that inherently risks deception be prohibited? (i.e. not protected by the 1st amendment)

Answer 66

yes

Question 67

can the government prohibit accountants from in person solicitation?

Answer 67

no (but they can prohibit attorneys from in person solicitation)

Question 68

how can a P recover under defamation?

Answer 68

if the P is a public official or running for public office, the P can recover for defamation by proving falsity of the statement and actual malice

Question 69

if the P is a private figure and the matter is of public concern, that state may allow the P to recover for defamation by proving what?

Answer 69

falsity and negligence by the D. P may recover presumed or punitive damages only by showing actual malice

Question 70

If P is a public figure, what must P show to recover for defamation?

Answer 70

falsity of the statement and actual malice

Question 71

what is actual malice in terms of defamation?

Answer 71

D knew the statement was false or acted w/ reckless disregard of the truth

Question 72

If the P is a private figure and the matter is not of public concern, must P show actual malice in order to recover presumed or punitive damages on a defamation claim?

Answer 72

no

Question 73

is speech by government employees on the job in the performance of their duties protected by the 1st amendment?

Answer 73

no

Question 74

what is a public forum?

Answer 74

a government property that the government is constitutionally required to make available for speech

Question 75

what is a designated public forum?

Answer 75

government properties that the government could close to speech, but choose to open

Question 76

what is a limited public forum?

Answer 76

government properties that are limited to certain groups of dedicated to the discussion of only some subjects

Question 77

what is the level of scrutiny that must be satisfied for regulations on speech in public forums?

Answer 77

regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met

Question 78

what is the rule regarding regulation of speech in a designated public forum?

Answer 78

regulations must be subject matter and viewpoint neutral, or if not, strict scrutiny must be met

Question 79

what is a non public forum

Answer 79

government properties that the government constitutionally can and does close to speech

Question 80

what is the rule regarding regulation of speech in a non public forum?

Answer 80

the government can regulated speech in a non public forum so long as the regulation is reasonable and viewpoint neutral

Question 81

is the a 1st amendment right of access to private property for speech purposes?

Answer 81

no

Question 82

is the freedom of association a fundamental right?

Answer 82

yes

Question 83

what level of scrutiny is applies to laws that prohibit or punish group memebership

Answer 83

strict scrutiny

Question 84

what 3 things must happen for the government to punish membership in a group?

Answer 84

1. actively affiliated w/ the group 2. knowing of its illegal activities and 3. with the specific intent of furthering those illegal activities

Question 85

can the free exercise clause be used to challenge a neutral law of general applicability?

Answer 85

no

Question 86

can the government deny benefits to individuals who quit their jobs for religious reasons?

Answer 86

no

Question 87

what is the establishment clause?

Answer 87

the government may make no law regarding the establishment of religion

Question 88

what is the 3 part test for when a law is unconstitutional under the free exercise clause?

Answer 88

1. there must be a secular purpose for the law 2. the effect must be neither to advance nor inhibit religion 3. there must not be excessive entanglement w/ religion

Question 89

when can the government discriminate against religious speech or among religions?

Answer 89

when strict scrutiny is met | law is upheld if it is necessary to achieve a compelling government purpose

Question 90

can the government give assistance to parochial school?

Answer 90

yes, so long as the money is not used for religious instruction