Conlaw PMT II Flashcards
(126 cards)
1
Q
What was CJ Rehnquist concurrence in VMI?
A
He would have allowed a system of sep. but genuinely equal educational facilities.
2
Q
In VMI, Ginsberg required what standard stapled to IS?
A
“Exceedingly persuasive justification.”
3
Q
Why did CJ Scalia dissent / what he say in VMI?
A
Ginsburg opinion undermined the diversity of educational opportunites set aside for men and women.
4
Q
Does an alimony statute that requires husbands and not wives to pay alimony violate the Equal Protection Clause of the Fourteenth Amendment?
A
Yes. Subject to I.S. standard. [Orr v. Orr]
5
Q
In this case, the Court upheld a federal social security law [so 5A DP] that favored women in calculating retirement benefits.
A
Califano v. Webster
6
Q
ROL: “A Social Security Act provision that advantages women in calculating old-age-insurance benefits does not violate the Equal Protection Clause if it is directed toward remedying the historical effects of economic discrimination against women in the workforce.”
A
Califano v. Webster
7
Q
What case showed that overcoming effects of past discrimination against women can be a constitutionally sufficient purpose to justify the use of a sex-based classification?
A
Califano v. Webster, allowing a federal social security act that favored women b/c of historical economic disparities.
8
Q
Does a state statutory-rape law that discriminates against males violate the Equal Protection Clause of the Fourteenth Amendment?
A
No. [Michael M. v. Superior Court - CJ Rehnquist] The statute passed standard of I.S. which is used for gender classifications.
9
Q
In this case, the Court upheld CA disability insurance program that excluded pregnancy related disabilities.
1. Court said pregnancy discrimination NOT gender discrimination.
2. Why? Not every women gets pregnant so it doesn’t divide all women from men.
A
Geduldig v. Aiello
10
Q
T/F) The SC has applied I.S. to cases involving pregnancy classifications.
A
[False. RBR.] The Court in Geduldig v. Aiello said that pregnancy classifications do NOT equal gender classifications.
11
Q
What’s the difference in standard between Craig v. Boren [1976] v. US v. VMI?
A
“Exceedingly persuasive justification”
12
Q
Does a statute that denies the sale of alcohol to individuals of the same age based solely on gender violate the Equal Protection Clause of the Fourteenth Amendment?
A
Yes. Introductory case for I.S. by CJ Brennan. [Craig v. Boren]
13
Q
Is a showing of disparate impact alone enough to prove unconstitutional discrimination?
A
No. Must show discriminatory intent. [PA of Mass. v. Feeney]
14
Q
Does the Military Selective Service Act, which requires the registration for the draft of males and not females, violate the Fifth Amendment to the Constitution? Why / why not?
A
No. Usually it would be yes, but here, the Court is required to give special deference to Congress on wartime matters. [Goldberg]
15
Q
May a state condition receipt of welfare benefits on the beneficiary having United States citizenship or residing in the United States for a specified number of years?
A
No, alien classifications violate EP clause and are subject to SS. [Graham v. Richardson]
16
Q
Alien classifications subject to what standard?
A
SS – although, there is a carveout. Federal government given deference over immigration and policing the borders.
17
Q
Is a six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children constitutional?
“A six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children is too short to satisfy the requirements of equal protection. Equal-protection challenges to statutory classifications based on legitimacy are subject to intermediate scrutiny.”
A
No. Subject to I.S. [Clark v. Jeter]
18
Q
This case showed that paternal cases circling illegitimacy of a child subject to I.S.
A
Clark v. Jeter
19
Q
This PA law required [paternity actions] for illegitimate kids to be filed inside 6 years of child’s birth.
1. Violated EP
2. Subject to I.S. [failed]
A
Clark v. Jeter
20
Q
May a state enact a law that requires a uniformed state police officer to retire at age 50 without violating the Equal Protection Clause of the Fourteenth Amendment?
A
Yes. Age based classifications subject to [RBR.] MA Board of Retirement v. Murgia
21
Q
What standard for aged based classifications?
A
RBR
22
Q
In this case, the SC applied RBR [w/ bite] to strike down a law targeting “hippie communities” that cut them off from social benefits.
A
US Dept. of Agriculture v. Moreno
23
Q
Does a law that terminates food-stamp benefits for a class of persons comprising unrelated people living in the same household violate the Due Process Clause of the Fifth Amendment? “hippie communities.”
A
Yes. Triggers RBR w/ bite b/c this exemplifies a law fueled by “Irrational animus.”
24
Q
What standard of review applies to laws discriminating against people with intellectual disabilities?
A
RBR. [Cleburne v. Cleburne]
25
Does a law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violate the Equal Protection Clause of the Fourteenth Amendment?
Yes. Classic example of a law fueled by "irrational animus," subject to RBR w/ bite. [Romer v. Evans]
26
Does a law which serves as prohibition on the registration of marks that consist of or comprise immoral or scandalous matter violate the First Amendment?
Yes. [Brunetti] - Content based restrictions are Per Se Unconstitutional. (Sometimes its SS under Reed v. Town of Gilbert)
27
Can the government deny trademarks just b/c they find them immoral, scandalous, or immoral?
No. This is Per Se unconstitutional under [Brunetti] or subject to SS per Reed v. Town of Gilbert.
28
Doe's a town's signage code, which perhaps treats signs differently based on their [content] violate the 1A?
Yes. Must pass SS under Reed v. Town of Gilbert.
29
T/F) The government can regulate time, place, manner of speech so long as the restriction is content neutral and reasonable.
True. [Kovacs] + Racist rock adds requirement of "narrowly tailored" and alternative means of communication left open.
30
How does Kovacs case [1949] align with Rock against racism case [1989]?
Time, manner, place restrictions are okay if content neutral and:
1. Kovacs = reasonable
2. Rock = narrowly tailored
+ alternative means of comms
31
According to these two cases, time, manner, place restrictions must be content neutral, reasonable, and narrowly tailored w/ alternative means of comms.
1. Kovacs
2. Ward v. Rock against racism
32
Analysis for expressive conduct?
1. Spence v. WA
* Intent to convey message?
* message understood?
2. O'Brien test
* Within Constitutional power
* Imp. / sub interest
* Gov. int. unrelated to suppressing free expression
* Suppression no greater than necessary
33
Does the Second Amendment apply to the states, thereby invalidating a local law prohibiting residents from possessing handguns in their home?
Yes. McDonald v. City of Chicago
1. Fundamental to nations scheme of ordered liberty
2. Deeply rooted in nation's history and traditions
34
When will SC recognize an unwritten liberty interest today, incorporating against the states?
1. Fundamental to nation's scheme of ordered liberty.
2. Deeply rooted in nation's history and traditions.
Cases:
1. WA v. Glucksberg
2. McDonald
3. Bruen
4. Dobbs
35
What case overturned Roe v. Wade?
Dobbs
36
This case [overturned by Dobbs] relied on the right of privacy [Prenumbra] to protect abortion rights.
Roe v. Wade
37
Which amendments has the SC found implied a right of privacy? [Prenumbra theory}
1 and 3, 4, 5, and 9
38
What standard of review for constitutional right to travel restrictions?
Strict Scrutiny
39
What are "suspect" classifications triggering SS?
What are [some] fundamental rights triggering SS?
Suspect:
1. Race
2. National origin
Fundamental:
1. Marry [zoblacki/Loving v. VA]
2. Intimacy/privacy [Laurence v. Texas]
3. Travel [Saenz v. Roe]
4. Same sex marriage [obergfell]
5. Religion
6. Carry a gun [McDonald/Bruen]
and many more -- basically any case where a fundamental right has been recognized.
40
Law that prohibit divorce subject to what standard?
SS. Favored and disfavored class. Marriage is a fundamental right per Loving v. VA and Zablocki.
41
Law restricting right to travel subject to what scrutiny?
Saenz v. Roe, SS.
42
T/F) Regulations on guns, as a fundamental right, will be subject then to SS.
False. In the past, this would be true. And true still for most fundamental rights. However, in Bruen 2022 the SS standard was tossed in favor of historical analysis.
43
What standard for gun regulation post Bruen in 2022?
If a government regulation restricts conduct protected by the plain text of the Second Amendment, the government must justify the regulation by showing that the regulation is analogous to gun laws that existed when the Second and Fourteenth Amendments were ratified.
44
_____ v. NY (1925) at p. 1096 was the first case in which the Supreme Court decided that any right guaranteed by the First Amendment applied to the states, but again, the defendant got no relief.
Gitlow v. NY
45
When was the first time anyone actually got relief under the 1A?
Stromberg in 1931. He was prosecuted b/c a California law made it a felony to publicly display a red flag as a symbol of antigovernment sentiment or incitement of pro-anarchy action.
46
This man was prosecuted b/c a California law made it a felony to publicly display a red flag as a symbol of antigovernment sentiment or incitement of pro-anarchy action. [First time person got relief under 1A]
Stromberg
47
What is the test under Brandenburg for inciting violence?
1. Speech intended to incite "imminent" unlawful action; and
2. The speech is likely to incite such "imminent" unlawful action
48
What's an important factor in the Brandenburg analysis?
"Imminency" of the violence.
49
Is mere advocacy or teaching about violence enough under Brandenburg to be prosecuted?
No. It must be likely to produce imminent unlawful action.
50
So under Brandenburg, is abstract teaching of communism, fascism, or genocide enough to support conviction?
No.
51
Under NY Times v. Sullivan, a [public] official may not recover unless what?
1. Statement was false and
2. made with actual malice [which means knew it was false or didn't care if so]
52
This case was a clear move away from the aggressive substantive due process protection of earlier years such as freedom of contract.
WCH v. Parrish
53
Unwritten rights cases:
1. Contraception access
2. Teach modern languages
3. Private school access
4. Handgun in home
1. Eisenstadt
2. Myers v. Nebraska
3. Pierce v. SOS
4. McDonald
54
If Barron v. Baltimore relitigated today, it would rely on what case and why?
Quincy RR v. Chicago: Quincy provided that states are required to compensate the owners of private property when their property is taken for public use. [The opposite of Barron holding]
55
According to this case, cities may undertake construction that destroys an individual’s property without providing just compensation under the Takings Clause of the Fifth Amendment b/c that amendment does not apply to the states.
Barron v. Baltimore
56
This case held that the law protects integrity of the "martial family," thus, rights of biological father outside the marriage are not deeply rooted in Nation's history & traditions.
Michael H v. Gerald D. Today the law has been adjusted to recognize biological fathers but back then, no dice for Mike.
57
Access to contraceptions subject to what scrutiny? Remember, it has been recognized as a privacy right.
It has been recognized as a fundamental right, so SS.
1. Griswold = married access
2. Eisenstadt = unmarried access
58
What scrutiny is regulations on marriage subject to?
Fundamental right so ss.
1. Zoblacki
2. Obergfell
3. Loving v. VA
59
Article 4 protects persons and businesses. [T/F]
False. Article 4 protects persons only.
60
Substantive due process argument
1. Fundamental to nation's scheme of ordered liberty. [McDonald]
2. Deeply rooted in nation's history & traditions. [McDonald]
3. Essential to human dignity and autonomy [Obergfell]
4. Prenumbra - right of privacy [Griswold]
61
ROL: "An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing married couples from using contraception."
Griswold. Use this case for final shot on your substantive due process argument.
62
What text of the constitution used in Saenz v. Roe?
P&I of 14A [very notable because this is never the case]
63
Restrictions on right to travel will be subject to what review?
SS -- Fundamental right to travel recognized in Saenz v. Roe by way of P&I clause of 14A.
64
Public figures in defamation suits must prove what?
1. Actual malice; or
2. acting with reckless disregad to its truth
65
Forcing officers to retire at 50 is subject to strict scrutiny.
False. RBR per MA Board of retirement v. Murgia.
66
States may not criminalize pre-martial intimacy. [2003]
Laurence v.Texas
67
This case read an Equal Protection requirement into the Due Process Clause of the Fifth Amendment.
Boiling v. Sharpe
68
Classifications based on national origin subject to what review?
SS [Graham v. Richardson]
69
This case showed that "invidious" classifications on gender is subject to [and introduced] I.S. reasoning that gender is not suspect but quasi-suspect classification.
Craig v. Boren 1976
70
T/F) Statements designed to incite imminent lawless action -- and actually incite it -- are protected by constitution.
False. [Chaplinsky]
71
T/F) Literary works that average person, applying contemporary community standards, finds appeal to the prurient interest, describe in a patently offensive way sexual conduct specifically defined by applicable state law, and lack serious literary, artistic, or scientific value is protected by constitution.
False [Miller]
72
T/F) Fighting words are protected.
F. [Chaplinsky]
73
T/F) Membership in a revolutionary socialist organization is protected.
T. [Brandenburg]
74
Which of the following is per se unlawful under the Constitution of the United States?
a. Child pornography.
b. Human slavery.
c. Hate speech.
d. Communism.
e. All of the above.
Slavery
75
T/F) A local ordinance prohibiting the use of public parks for the performance of music between 11:00PM and 6:00AM violates strict scrutiny.
F. Wrong test.
1. Narrowly tailored [racist rock]
2. Content-neutral
3. Reasonable [Kovacs]
4. Leaves open alt. means of comms [Playtime]
76
T/F) A content-neutral ordinance designed to suppress undesirable secondary effects associated with “adult entertainment” establishments is permissible.
True [Playtime theaters]
77
In a marriage statute discriminating on the right to marry... what arguments present?
1. Substantive DP of a fundamental right
2. EP violation
3. SS analysis
4. Prenumbra theory
5. Human dignity and autonomy
78
T/F) States can require judges to be appointed pursuant to state law that they are actually citizens of the U.S.
True
79
17) In Griswold, various justices voting to protect the right of married couples to access contraception relied on
a. The Ninth Amendment.
b. Penumbra of 1, 345, and 9As.
c. A constitutional right to privacy.
d. Substantive Due Process.
e. All of the above.
E. All of the above
80
T/F) As interpreted by the Supreme Court, the Constitution permits no regulation of abortion.
F. Subject to RBR since it is not a fundamental review or quasi-suspect class.
81
T/F) Brown v. Bd of Education applied to public and private schools.
False. Public only
82
T/F) Brown v. Board of education pointedly rejected originalism.
True
83
This case held that child pornography is not protected by the 1A even if material is not "legally obscene" under standard set forth in Miller.
NY v. Ferber
84
The Court here said that states cannot punish speech just b/c it is offensive, such as wearing a jacket that says "fuck the draft."
CA v. Cohen
85
In CA v. Cohen, CJ Harlan expanded on 4 points in response to CAs argument.
The jacket was:
1. Speech not conduct
2. no captive audience
3. Offense alone not enough
4. Emotional expression vital to free debate
86
What BORs remain unincorporated against the states?
3 = right against quartering
5 = grand jury criminal trial
7 = right to jury trial in civil cases above $20
87
"States, just as FED gov., must abide by exclusionary rule = evidence seized in UR search or seizure cannot be introduced at trial."
Mapp v. Ohio
88
T/F) Parts of 9A and 10A shields against rights abuse has not been incorporated.
True
89
When you make unwritten rights argument against FEDs, you will be discussing DP under which amendment?
5A. [Boiling v. Sharpe]
90
In this case, the ∆ was not protected against harms of double jeopardy as it had not yet been incorporated. Today, if the case were relitigated, he would be protected.
Palko v. Connecticut
91
T/F) You can be prosecuted and acquitted 51 times.
True, built in exception to double jeopardy. [Each state + FED]
92
Is Adamson v. CA good law today?
No, the 5A rule against self-incrimination has since been incorporated.
93
Which Chief Justice?
1. Believed in selective and flexible application of BORs, apply only those that were "fundamental" to the states.
2. Believed in total incorporation, very mechanical. Carried around the text of the Constitution.
1. Frankfurter
2. Black
94
Is any infringment on a fundamental right subject to SS?
No b/c of NY Rife v. Bruen which said only regulations of weapons possession that are const. permissive today are those that would have been allowed in 1791 when 2A ratified.
95
T/F) Under Bruin, only restrictions on guns today is those that were permissive in 1791.
True, abandoned SS. If Thomas had his way this approach would be applied to all fundamental rights claims.
96
Under Bruen, what regulation of internet access would be permissible?
None because it did not exist in 1791.
97
Is there a const. right to have operational weapons outside home traveling by motor vehicle while traveling in Bruen?
Yes
98
T/F) There is no const. right to weapon possession in sensitive places. [schools, gov. buildings] Plus, felons and the like may still be unarmed. Particularly dangerous or unusual weapons are also perhaps outside scope of 2A guarantee.
True
99
T/F) For present purposes is that there is no basis for the claim that once a right is recognized as fundamental any action infringing that right triggers SS.
True b/c of Bruen which introduced a 1791 analysis.
100
The SC held that freedom of expression must yield to public necessity during wartime in this case.
Schenck
101
T/F) The SC has held that fighting words are unconstitutional.
False. They are not unconstitutional they are unprotected by the 1A.
102
T/F) The SC has held that criticisms of government officials is unprotected.
False. In fact, public official must show 1)actual malice or 2)reckless disregard of truth to recover. A very high bar. This is b/c we are absolutely allowed to criticize public officials.
103
T/F) The Supreme Court held that fighting words are unconstitutional in Chaplinsky.
False.
104
T/F) City of Renton v. Playtime Theatres would turn out differently under current Supreme Court doctrine if the city argued purpose of zoning ordinance was to protect the city’s population from messaging that subverted good morals.
True. This would make it content based restriction. Content based restrictions are either Per se unconstitutional or must pass strict scrutiny.
105
Which of the following are considered non-suspect classifications?
1. Sexual orientation.
2. Age.
3. Intellectual disability.
4. Physical disability.
5. All of the above are considered non-suspect classifications.
All of the above are non-suspect and subject to RBR.
106
SC must determine that an unwritten right falls within the sphere of life, liberty, or property protected under the Due Process Clauses to warrant federal protection. [T/F]
True
107
As Supreme Court caselaw stands today, if a restaurant on King Street
1. Discriminates against customers on the basis of sex, the restaurant will necessarily violate the Equal Protection Clause.
2. Discriminates in its employment practices on the basis of race, it may do so only if it acts for a compelling purpose by means narrowly tailored thereto.
3. Discriminates against customers on the basis of age, the restaurant must be able to satisfy rational basis review in order to demonstrate that it has not violated the Equal Protection Clause.
4. Exploits coerced laborers who it keeps confined on the premises, it is acting in violation of the Thirteenth Amendment.
5. All of the above statements are true.
4. Private entities are not subject to EP laws.
108
Gov. restriction on 2A fundamental right is unconstitutional if the restriction is....
.... inconsistent with American historical tradition of firearm regulation when 2A and 14A ratified.
109
Under Bruen, 2 carve outs of regulation defined...
1. If outside conduct of what 2A historically protected, then may be regulated.
2. If inside conduct of what 2A protected, then subject to historical analysis.
110
Stare decisis demonstrated and old abortion case overturned famously in what case?
Dobbs
111
Per ________, to recognize an implied unwritten right as fundamental, it must be 1) Deeply rooted in American history and tradition or 2) essential to scheme of ordered liberty.
Dobbs
112
After Dobbs, future challenges to abortion regulations will be subject to what standard of review?
RBR
113
______v. Jackson Women’s Health permits the states to freely regulate abortion provided that the regulation satisfies RBR. [Presumed valid]
Dobbs
114
"Race-based admission practices violate EP unless they satisfy SS and don’t stereotype."
Students for fair admissions v. Harvard
115
____ ____ of 1964 prohibits universities from engaging in racial discrimination if they receive federal funding, essentially extending EP to institutions such as Universities.
CR Act of 1964 [SFA v. Harvard]
116
Per SFA v. Harvard, any racial classification subject to what review?
SS
117
These cases demonstrated that marriage is a substantive DP right which may not be violated by the states.
Loving v. VA also Obergfell
118
What can you argue to protect client's rights around intimacy?
1. Penumbra theory at the very least
119
[Contraception use]
In __________, Court held that married couples had right to contraception use. This case pushed the right for unmarried persons. ___________
1. Griswold = married persons
2. Eisenstadt = unmarried persons
120
This case demonstrated that, as default mechanism, EP violations will trigger RBR. You proceed to heightened forms like IS for gender or SS for suspect classifications.
Eisenstadt v. Baird
121
“Right to privacy in marriage is so fundamental that allowing its infringement b/c privacy not specifically mentioned in previous 8 amendments is is to ignore 9A altogether.” CJ Goldberg in what case broteni?
Eisenstadt
122
This case demonstrated that the right to marry is a fundamental right protected by substantive due process. It's a landmark case from 2015. Also mentioned [personal dignity and autonomy]
Obergfell
123
According to Obergfell, there are 4 big principals that support the right to marry as fundamental. GO.
1.
2.
3.
4.
1. Inherent in individual autonomy
2. Protects intimate relationships
3. Protects kids and families by giving legal protection to home building
4. Marriage is keystone of social order and foundation of family unit
124
This case showed that marriage is a keystone of social order and foundation of the family unit. [Factor 4]
Obergfell
125
Can states condition receipt of benefits on national citizenship?
No, Graham v. Richardson.
126
Orphan cared for by grandmother, running afoul of city ordinance which limited occupancy to members of single family.
This violated 14A DP clause because it intrudes into family life.
Moore v. city of east cleavaland
