Constitutional Flashcards
(17 cards)
Ex Post Facto Clauses
Generally prohibit state and federal governments from enacting criminal laws that have a retroactive punitive effect. But a civil law also will be deemed to be an ex post facto law when its retroactive effect is so **punitive that it clearly overrides the law’s non punitive purpose. **
Establishment clause limitations
guaranteeing religious institutions positions on government boards and committees has historically not been permitted under the original meaning of the Constitution.
The historical test allows the government to pass through the First Amendment establishment-clause wall separating church and state when the government action has historically been permitted in accordance with the original meaning of the Constitution.
Is the media liable for publishing truthful information unlawfully obtained by a third party?
The First Amendment shields the media from liability for publishing truthful information that was unlawfully obtained by a third party if (1) the information involves a matter of public concern and (2) the publisher neither obtained it unlawfully nor knows who did.
First Amendment Freedom of Press
A government action that abridges the First Amendment freedom of the press (eg, gag order) must survive strict scrutiny, which requires the government to prove that its action was the least restrictive means to achieve a compelling government interest.
First Amendment right to Publish Truthful Information
There is no constitutional right to access government information. Therefore, the government can deny the public and media access to official state records. But there is a First Amendment right to publish truthful information, and any government restriction on this right is unconstitutional unless it survives strict scrutiny.
First Amendment Free Speech Clause
Generally prohibits the government from regulating speech based on its content. Such content-based regulations are usually subject to strict scrutiny. But certain categories of speech are not protected and can be freely regulated by the government. For example obscenity is not protected but Mere portrayals of nudity is not obscene
Equal Protection and Citizenship
State laws that discriminate based on citizenship are generally subject to strict scrutiny. BUT under the political-function exception, rational basis review applies to state laws that restrict a noncitizen’s participation in certain government functions— i.e., employment as a public school teacher; employment as a police officer;
serving on a jury;
voting
States
States possess the police power to enact and enforce laws that are reasonably related to protecting public health, safety, and welfare.
Tenth Amendment
A state is not immune from a nondiscriminatory federal tax that does not interfere with essential state functions.
Look for “all”
Look for if it applies to states and agencies but not private individual or entities
Operations of Federal Government
Under the supremacy clause, federal laws are the supreme law of the land. As a result, the operations of the federal government, including agencies and instrumentalities, are completely immune from state regulation is the absence of congressional consent
Import-Export Clause
A state tax on imported goods is valid if 1) the federal government is still able to speak with one voice in foreign commerce, 2) there is interstate harmony because the tax satisfies the Complete Auto requirements, and 3) the tax does not divert import revenue from the government
State Taxes in Foreign Entities or Persons
A state may tax foreign persons or entities that earn income in the state if the state satisfies the Complete Auto and federal uniformity requirements.
Due Process and Burden of Proof
In a due process claim, the challenging party has the initial burden of showing that he/she has a protected life, liberty, or property interest at stake.
Due Process and Burden of Proof
In a due process claim, the challenging party has the initial burden of showing that he/she has a protected life, liberty, or property interest at stake.
Electoral Regulation Standard of Review
Severe (discriminatory) electoral regulations are subject to strict scrutiny. But ordinary (nondiscriminatory) electoral regulations (eg, ban on write-in candidates) are subject to the less stringent rational basis test.
1st Amendment Political Speech
The First Amendment protects political speech, which includes campaign contributions and expenditures. A law that restricts campaign contributions is unconstitutional unless the government satisfies intermediate scrutiny by showing that the law is closely drawn to serve (ie, substantially related to) an important government interest.
Terminating Parental Rights
A state seeking to terminate parental rights must prove its case by at least clear and convincing evidence to comply with procedural due process.
