Constitutional Law Flashcards
(42 cards)
1
Q
Political Question Doctrine
A
Constitutional Violations Federal Cours will not Adjudicate
- Republican form of government
- President’s foreign policy
- Impeachment and removal process
- Challenges to partisan gerry mandering
2
Q
No Generalized Greivances Exception
Exception to Exception
A
Taxpayers have standing to challnege gov. expenditure pursuant to federal (or state and local) statutes as violating the Establishment Clause
Exception to Exception
- grants of property to relgious institution
- Federal government expenditures from general executive revenues
- State tax credits that benefit relgious institutions
3
Q
Mootness Exceptions
A
- Wrong capable of repeititon
- Voluntary cessation (free to resume)
- Class action suits: as long as one member has ongoing injury
4
Q
Commerce power
A
Commerce may regulate
- channels of interestate commerce
- Instrumentalities of interstate commerce
- activities that have substantial effect on itnerstaet commerce
cannot regulate inactivity
5
Q
10th Amendment
A
- Congress can’t compel state regulatory or legislative action
***can induce with strings, if expresslys stated, relate to prupose, and are not unduly coercive**
- Congress may prohibit harmful commercial activity by state governments
6
Q
Congresss’ power under section 5 of 14A
A
- May not create new rights or exapnd the scope of rights
- may act only to prevent or remedy violations of rights recognized by court but must be proportionate and congruent to remedy constitutional violations
7
Q
Impeachment
A
- Majority vote in house to impeach
- conviction in senate requires a 2/3 vote
8
Q
Presidential immunity
A
- abosulte immunity to civil suits for money damages while in office but not for actions that occurred prior to taking office
- executive privilege for prsidential papers and conversations but such privilge must yield to other important government interests
9
Q
Federalism
Implied preemption
A
- Mutually exclusive
- Federal objective
- Legislative intent
10
Q
State Taxation of Interestate Commerce
A
- may not use tax systems to help in-state businesses
- May ony tax activities if there is a substantial nexus to the state
- State taxation of interstate businesses must be fairly apportioned
11
Q
Government Action
Congress may apply constitutional norms to private conduct
A
- 13A can be used to prohibit private race discrimination
- the commerce power can be used to apply constitutional norms to private conduct
- congress cannot use section 5 of the 14A to regulate private behavior
12
Q
Government Action
Entanglement Exception
state action where
A
State Action
- Courts cannot enforce racially restrictive covenants
- governemnt leases premises to a restuarant that racially discriminates
- when a state provies books to schools that racially discriminate
- private entitity regulates interscholastic sports within a state
13
Q
Government Action
Entanglement Exception
NO state action where
A
- a private school that is 99% funded by the government fires a teacher because of her speech
- when the NCAA orders the suspension fo a basketball coach at a state university
- private club with a liquor license from the state racially discriminates
14
Q
Bill of Rights not incoporated into 14A w/ regard to
A
- 3A right to not have soldier quartered in a person’s home
- 5a right to grand jury indictment in criminal cases
- 7a right to jury trial in civil cases
- 8A right against excessive fines
15
Q
Procedural due process
Deprivation of liberty
A
- before adult can be civilly committed must be notice and a hearing
- when parent institutionalizing a child, only a screening by a nuetral fact finder
- Harm to reputation by itself is not a loss to liberty
16
Q
When is government liable under due process
A
- negligence is not sufficent for deprivation
- Must be intentional government action or at least reckless action for liability to exist
- In emergency situations governemnt is liable only if conduct “shocks the conscience” [which requires intent of causing that harm]
- Government’s failure to protect people from privately inflicted harms does not deny due process
17
Q
What procedures are required for procedural due process?
A
Balance
- importance of the interest to the individual
- ability of additional procedures to increase the accuracy of the fact-finding
- government’s interests
18
Q
The Contracts Clause
A
- Applies to only state or local interference with already existing contracts [not to federal government or future contracts]
- State or Local interference: intermediate scrutiny–does the legislations subsantially impair party’s right and is reasonably and narrowly tailored of promoting an important and legitimate public interest?
- State or local interference with government contracts–strict scrutiny
19
Q
Ex Post Facto Clause
A
- Does not apply in civil cases
- punishes conduct that was lawful when it was done or increases punishment for a crime after it was comitted
- Retroactive civil liability only need meet a rational basis test
20
Q
A Bill of Attainder
A
Law that directs the punishment of a specific person or persons without trial
21
Q
Fundamental Right of Privacy (under substantive due process clause) includes
A
- The right to marry
- The right to procreate
- The right to custody of one’s children
- The right to keep the family together
- The right to control the upbringing of one’s children
- The right to purchase and use contraceptives
- The right to abortion
- protects a right to engage in private consensual homosexual activity
- Right to refuse medical treatment
- no right to physician-assisted death
22
Q
Fundamental Right of Privacy
The right of abortion
Prior to viability
A
State may not prohibit abortions but may regulate abortions so long as they do not create undue burden on the ability to obtain abortions
- 24-hour waiting period NOT undue burden
- licensed physicians requirement NOT undue burden
- prohibition of “partial birth abortions” not an undue burden
- Requirement that physicians have admitting privileges at a hospital within 30 miles and that a facility have “ambulatory surgical facilities” is an unconstitutional undue burden
23
Q
The right of abortion
After viability
A
states may prohibit abortions UNLESS necessary to protect the woman’s life or health
24
Q
Right to abortion
the government has no duty to
A
subsidize aboritons or provide abortions in public hospitals
25
Right to abortion
Spousal consent and notification laws are
unconstitutional
26
Right to abortion
Parental notice and consent laws for unmarried minors
State may require parental notice and/or consent for an unmarried minor's abortion so long as it creates an alternative procedure where a minor can obtain an abortion by going before a judge who can approve the abortion by finding it would be in the minor's best interests or that she is mature eough to decide for herself
27
The right to refuse medical treatment
1. Competent adults have the right to refuse medical treamtent, even life-saving medical treatment
2. A state may require clear and convincing evidence that a person wanted treatment terminated before it is ended
3. A state may prevent family members from terminating treatment for another
28
The Right to Travel
1. Laws that prevent people from moving into a state must meet strict scrutiny
2. durational residency requirements must meet strict scrutiny
3. Restrictions on foreign travel need meet only the rational basis test
29
The Right to Vote
1. Laws that deny some citizens the right to vote must meet strict scrutiny, but regualtions fo the electoral process to prevent fraud only need to be on balance desirable
2. One-person-one-vote must be met for all state and local elections. It is constitutionally permissible for districting to be based on total population; it does notneed to be based on eligible voters
3. At-large elections are constitutional unless there is proof of a discriminatory purpose
4. The use of race in drawing election district lines must meet strict scrutiny
5. Counting uncounted votes without standards in a presidential election violates equal protection
30
Equal Protection
Educational institutions using race
Educational institutions may use race as one factor in admissions decisions to help minorities. They must show, however, that there is no race neutral atlernative which could acheive diversity.
Additionally educational institutions may not add points to applicants' admissions scores based on race
\*\*\*public school systems may not use race as a factor in assigning students to schools unless strict scrutiny is met\*\*\*
31
32
How should gener classifications benefitting women be treated?
1. Gender classifications benefiting women that are based on role stereotypes will not be allowed
2. Gender classifcations that are designed to remedy past discrimination and differences in opportunity will be allowed
33
Alienage Classifications
1. Generally, strict scrutiny
2. only rational basis is used for alienage classifications that concern _self-government_ and the _democratic process_
3. Only a rational basis test is used for _congressional discrimination_ against aliens
4. It appears that itnermediate scrutiny is used for discrimination against undocumented alien children
34
Symbolic Speech
Government can regulate conduct that communicates if it has an important interest unrelated to suppression of the message and if the impact on communicatio is no greater than necessary to achieve the government's purpose
Ex: flag burning protected, draft burning not protected; local gov. may prohibit nude dancing; burning a cross is protected unless done **with intent to threaten**; contribution limits in election campaigns are generally constitutional, but expenditure limits are unconstitutional
35
Incitement of illegal activity
The government may punish speech if there is a **substantial likelihood of imminent illegal activity** and if the speech is directed to causing imminent illegaltiy
36
Obscenity and sexually oriented speech
| (test)
1. material must appeal to the prureint intereset (state/local standard)
2. material must be patently offensive under the law prohibiting obscenity (state/local standard)
3. Taken as a whole, the material must lack serious redeeming artisitic, literary, political, or scientific value (national standard)
37
38
Obscenity and sexually oriented speech
| (examples)
1. Government may use zoning ordinances to regulate the location of adult bookstores and movie theaters
2. child porno may be completely banned, even if not obscene (child must be used)
3. government may not punish private possession of obscene materials; but the government may punish private possession of child porno
4. Government may seize the assets of businesses convicted of violating obscenity laws
5. Profane and indecent speech is generally protected by 1A
1. exception: broadcaset media, school suspension
39
Commercial speech
1. Advertising for illegal activity, and false and deceptive ads not protected
2. true commecial speech that inherently risk deception can be prohibited
1. government may prevent professoinals from advertising or practicing under a trade name
2. may prohibit attorney (not accountants), in-person solication fo clients for profit
3. other commercial speech if **intermediate scrutiny** (narrowly tailored, not least restrictive)
40
Freedom of Assocaition
Laws that prohibit or punish group membership must meet strict scrutiny. To punish membership, must be proven that the person:
1. actively affiliated with the group
2. knowing of its illegal activities; and
3. with the specific intent of furthering those illegal activities
* Laws that require disclosure of group membershipo, where such disclosure would chill association, must meet strict scruiiny
* Laws that prohibit a group from discriminating are constitutional unless they interfere with _intimate association or expressive activity_
41
Free Execise clause
\*\*cannot be used to to challenge a neutral law of general applicability (peyote)\*\*
* The government may not deny benefits to individuals who quit their jobs for religious reasons
* Government may not hold a religious institution liable for the choices it makes as to who will be its ministers
* Denial of benefits to a religous school that are provided to a secular school must meet strict scrutiny
42
Establishment Clause
1. Secular purpose
2. effect must be netiher to advance or inhibit religion
3. must not be excessive entanglement with religion
