Conlaw Flashcards

Question

Roe rights/test

Answer 1

Broad description of right “privacy” ‘;personal rights’ that are fundamental or implicit in concept of ordered liberty Strict scrutiny

Answer 2

Narrowly describes the right claimed Asks if the right is implicit in concept of ordered liberty and deeply rooted in history no tradition Strict (but court applied rational because it found no right existed)

Answer 3

Rejects narrow framing and 1868 as sole reference point 405 ‘Matters so fundamentally affecting a person … matters’ involving the most intimate and personal choices … central to personal dignity and autonomy 406 Undue burden (unique to abortion)

Answer 4

Narrowly describe the right claimed Ask if the right is deeply rooted in history and tradition AND implicit in the concept of ordered liberty 409 Strict but court applied rational because no right

Answer 5

Rejects narrow framing 416-417 History and tradition a ‘starting point’ not ‘ending point’ 419 Casey autonomy language Not sure - seems like more that]n deferential rational basis - applying some level of heightened scrutiny

Answer 6

‘History and tradition .. do not set … outer boundaries / no formula / new insight 431 Reject glucksberg approach 432 Better informed understanding 433 Self-determination / autonomy 430-431 ? Seems like more than rational - some kind of heightened scrutiny

Answer 7

The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions 444 Rejects effort to use broader right of autonomy to protect 445-446

Answer 8

Street/sidewalk/park General approach

Answer 9

State fair closed to public at other times of year General approach

Answer 10

Univ meeting rooms school board meetings Caveat fn 7

Answer 11

Reasonable and viewpoint neutral

Answer 12

Incorporating enumerated rights McDonald, Timbs

Answer 13

Does the claimed right exist? What are the limits of the right?

Answer 14

Original privileges and immunities clause - art 4 sec 2 Original DPC -5th 9th 14th privileges and immunities 14th due process

Answer 15

Is there a right to keep and bear arms disconnected from militia service? -majority says yes; stevens says no If there is such a right, can DC justify the limits on it here? -majority says no; Breyer says yes

Answer 16

1. Significant interference w group’s message -women already included in jaycees -deference in Boy Scouts 2. Expressive v commercial 3. Balancing - dale focuses less on state interest 4. Compelling state interest -sex = yes; s.o. = no

Answer 17

Non expresssive

Answer 18

Expressive

Answer 19

-should it turn on how ‘creative’ the vendor’s expression is? -should it turn on whether the service provided by the vendor is ‘inherently expressive’? -should it turn on whether the vendor’s provision of service is deemed to be sending their ‘own’ message? If so, enough that vendor subjectively intends to send message? Or would objective observer have to perceive vendor to be sending message? -if an objective test applies, looks to creativity? Inherent expressiveness? Selectivity? Commercial context?

Answer 20

Incitement Other clear and present danger Fighting words True threats Some defamation Obscenity Child porn Speech integral to criminal conduct Fraud RAV caveat

Answer 21

Commercial speech (may be subject to ‘general approach’ in future

Answer 22

Subject matter Regulations Viewpoint regulations Regulations of offenseive speech -Offensive ideas -Offensive modes or manners of speech Some speaker identity regulations

Answer 23

Justice Thomas questions whether the EC applies to states through the 14th

Answer 24

Conduct regulations that incidentally impact speech O’Brien Time, Place, Manner Regs

Answer 25

Prison Military Public employment Public schools Broadcast

Answer 26

Government regulation sufficiently justified if it: Within constitutional power Furthers an important or substantial government interest The government interest is unrelated to suppression of free expression The incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Answer 27

Destroyed draft card. Law against destroying draft cards was found ok because gov needs them to track people etc. Intermediate scrutiny test

Answer 28

Wouldn’t work Saturdays. State wouldn’t give her unemployment benefits. Test: “Any incidental burden on the free exercise of religion must be justified by a compelling state interest and it’s incumbent on state to show there is not alternative form of regulation.” Must carve out an exception unless state can satisfy strict scrutiny

Answer 29

Least restrictive means of achieving some compelling state interest

Answer 30

Peyote in Oregon - distinguished from Sherbert because it’s criminal activity , breaking a law. Oregon law was constitutional “If prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First has not been offended” O’Connor: concur but would use strict scrutiny test.

Answer 31

Designed to overturn Smith and restore Sherbert/Yoder. Requires an exemption whenever the gov “substantially burdens” a person’s religious exercise and cannot show that the imposition of such a burden is “the least restrictive means of furthering” a “compelling state interest” Doesn’t apply to states

Answer 32

Heightened scrutiny any time a religious exemption is denied from a law containing ANY secular exemptions, even if they’re categorical in nature. Fulton/Tandon

Answer 33

Most favored nation. CA Covid - small gatherings. If people can gather in grocery stores we can gather to worship in homes.

Answer 34

City ordinance banning animal sacrifice were targeted at the Church of Santeria. Not neutral

Answer 35

Every member of Court agrees intentional DISFAVORING of religion violates the Free Exercise Clause, Court is split on when intentional ENDORSEMENT of religion will violate the Establishment Clause

Answer 36

Gov bussing program in NJ - adopted broad interpretations of the establishment clause

Answer 37

1. Statute must have a secular legislative purpose 2. It’s principle or primary effect must be one that neither advances nor inhibits religion 3. Statute must not foster “an excessive government entanglement with religion.

Answer 38

Nothing in the establishment clause requires gov to be strictly neutral between religion and irreligious, nor does that clause prohibit congress or the states from pursuing legitimate secular ends through non discriminatory sectarian means. Entanglement prong is an “insoluble paradox”

Answer 39

Bladensburg Peace Cross. Symbol has secular meaning Rational basis review Presumption of constitutional of longstanding symbols Lemon test problematic

Answer 40

Lynch, Allegheny, McCreary -whether gov intends to convey endorsement of religion and message of endorsement -whether a display has the effect of endorsing religion based on whether a reasonable observer would assume that it conveys a message that a particular religion or belief is preferred, given pertinent facts and circumstances

Answer 41

A gov practice isn’t coercive if it’s rooted in history or tradition OR Treats religious people and orgs and speech equally to secular equivalents Represents a permissible legislative accommodation / exemption from a generally applicable law

Answer 42

Intended to and likely to incite imminent lawless action In order to punish the speaker: -intended to incite or produce imminent lawless action -likely to incite such action

Answer 43

Within const power of gov Furthers an important or substantial gov interest If gov interest unrelated to suppression of free speech If the incidental restriction on alleged First freedoms is not great than is essential to the furtherance of that interest

Answer 44

Money is speech not just expressive conduct Restrictions are content-based and SS, not O’Brien applies Contribution and expenditure limits are content-based and subject to SS

Answer 45

Buckley / Valeo - court upheld contribution limits -reason: contribution is largely symbolic -could argue low limits are bigger burden -could argue contribution not merely symbolic - it’s speech, using money to fund speech he supports -IF it’s a higher burden, THEN, it’s SS -compelling interest = anti-corruption -narrowly tailored because people can donate in other ways - under limit ‘ volunteer

Answer 46

Improper influence Quid pro quo Is the reg narrowly tailored?

Answer 47

Citizens United, Buckley -expenditure limits more burdensome than contribution limits -not just symbolic, speech -less risk of corruption because group isn’t working directly with candidate - no compelling interest in anti-corruption -no compelling interest in anti-distortion because const not concerned w equalizing voices -no compelling interest in shareholder protection (shareholders upholding message without consent) -media orgs

Answer 48

-West VA v. Board of Ed - students req to say pledge of allegiance -Hurley: St Patrick parade - didn’t have to let the gays w their banner - would make parade share a message it didn’t want to adopt -Rumsfeld v. FAIR - don’t asl don’t tell - allow military recruiters because it didn’t force school to adopt their position, esp because they allowed other recruiters on campus

Answer 49

White guy, med school,- 16/100 spots for minorities Strict Violate equal protection clause Everyone must have same protection or it's not equal dissent: Brennan 4 - intermediate scrutiny Racial classification is benign - not invidious

Answer 50

Diversity is a compelling state interest justifying use of race in admissions -must be narrowly tailored Strict scrutiny

Answer 51

Brennan Four -university’s affirmative action plan should only be subject to intermediate scrutiny Racial classification benign not invidious

Answer 52

No compelling interest it’s racial balancing / disingenuous Rehnquist/Scalia/Kennedy*/Thomas *but see Fisher II

Answer 53

Undergrad admissions policy violates Equal Protection Clause - added points for racial/minority status Not narrowly tailored enough to achieve the interest in educational diversity that respondents claim justifies their program Rehnquist/OConnor/Scalia/Kennedy/Thomas

Answer 54

Generations of racial oppression mean schools need plans to maintain minority enrollment

Answer 55

1. Race can’t be considered by univ unless the admissions process passes strict scrutiny 2. Decision to pursue edu benefits from diversity deserves some deference. reasoned, principled explanation 3. No deference owed when determining whether use of race is narrowly tailored to achieve permissible goals. University must show that race-neutral alternatives don’t suffice

Answer 56

Alito/CJ/Thomas Benefits too nebulous Affirmative action will negatively affect minorities because they’ll be looked down on when people assume they were only admitted because of their minority status

Conlaw Flashcards

(80 cards)