Exam 1 Concepts and Clauses Flashcards
(23 cards)
Strict Constructionalism
We interpret the Constitution only as its written following Originalism or Textualism as guides (restraint)
Loose Constructionalism
We interpret the Constitution to allow flexibility and interpreting (activist)
Judicial Pragmatism
When interpreting the Constitution you take into account many perspectives, assumes law should and will evolve over time
Originalism
Looking to the original intent of the Constitution/law, looking to the ideas and context of the text to determine why it was made and what should be carried over.
Textualism
Looking to the original writing of the Constitution/law, following the text without interpretation. Take it as written.
Selective Incorporation
Not all rights in the first 10 amendments are applied to the states, the court must say so on a case by case basis. Rights that were previously not applied to the states will be incorporated into them by being brought before the Supreme Court.
Strict Scrutiny
An extremely important government interest must be advanced in the least speech-restrictive way possible.
Mootness
When there is no longer an actual controversy between the parties to a court case, and any ruling by the court would have no actual, practical impact.
Standing
A party must show an “injury in fact” to their own legal interests. They must be the person caused injury to or be responsible for them… ex. having custody of a child they can sue on their behalf
Ripeness
It may be too early for a case to been seen by the Supreme Court and it cannot be about hypothetical events.
Due Process Clause
Established by the 14th Amendment, guarantees that the government cannot take a person’s basic rights to “life, liberty, or property, without due process of law.” The due process right is designed to protect citizens from actions taken by state government, counties, towns, and cities.
Stare Decisis
Courts will adhere toprecedentin making theirdecisions.
Justiciability
A case is suitable for the court to hear and decide on.
- Must not offering an advisory opinion
- The plaintiff must have standing
- The parties must not be feigned or collusive
- The issues must be ripe but not moot
- Cannot be a political question
Lemon Test
A test which determines if there is a violation of the Establishment Clause.
Parts to the Lemon Test
Entanglement, Purpose, Effect, in the cases of schools coercion, and in the cases of displays they must not be isolated.
Entanglement (Lemon Test)
Must not result in excessive government entanglement with religious affairs (from Abington vs Schempp)
Purpose (Lemon Test)
Is there a legitimate secular purpose to the action (from Walz v Tax Commission… challenged tax exemptions for churches)
Effect (Lemon Test)
Must not advance or inhibit religious practices (from BOE v Allen… textbooks were lent to private religious)
Coercion (Lemon Test)
As what defines praying is impossible to tell, is sitting silently or standing respectfully… school age children especially being susceptible to feeling forced to basically engage for fear of punishment from adults they’re taught to respect (from established in Lee v Weisman)
Display (Lemon Test)
Religious items are allowed to be displayed if surrounded by other things to provide further context to keep it from being flat out sponsorship of religion from the gov
Sherbert Test
Resulting from the Supreme Court case of Sherbert v. Verner, the Shebert test is two-fold in its phases. The purpose of the Sherbert test is to determine if there has been a government infringement on religious rights or freedoms.
Sherbert Test: Phase 1
Is there a legitimate violation of religious expression or freedom? Should the government be involved?
Sherbert Test: Phase 2
Is the law a substantial burden on the party in question?
