Final Flashcards
(277 cards)
1
Q
- What is the scope of federal judicial power?
A
Article III, section 2 limits the jurisdiction of federal courts to cases: (1) Whose disposition depends upon construction of the Constitution, an act of Congress, or a federal treaty; (2) In which the United States is a party; (3) Between a state and citizens of another state; (4) Between citizens of different states (diversity).
2
Q
- What are the limitations on the scope of federal judicial power?
A
Limitations on the scope of federal judicial power include the Sovereign Immunity Doctrine and the Eleventh amendment.
3
Q
- What is the Sovereign Immunity Doctrine?
A
The United States may not be sued without its consent. Consent is generally afforded by federal statutes. Note: a suit against a federal official acting in official capacity is deemed to be an action against the United States. If the official’s actions are beyond statutory powers, the official may be sued.
4
Q
- What does the Eleventh amendment encompass?
A
A citizen of one state may not sue another state in federal court without the state’s consent. It has also been interpreted to prevent federal court suits by citizens of the state being sued. It does not bar suits by the federal government against a state, or against state subdivisions, or against state officials, or from being sued in the courts of other states.
5
Q
- What is the Supreme Court’s power of judicial review?
A
The Court has held that it has the power to hold acts of other branches of the federal government unconstitutional; to hold state statutes unconstitutional, and to review judgments of state courts in cases that fall within the federal judicial power.
6
Q
- What two methods has Congress provided for invoking Supreme Court appellate jurisdiction?
A
The appellate jurisdiction of the Supreme Court is invoked where the jurisdiction is mandatory and by certiorari (where it is within the Court’s discretion.) Certiorari will be granted only when there are special and important reasons. A denial or certiorari carries means that fewer than four members of the Court believe it desirable to review the decision.
7
Q
- What limitations can Congress impose on the federal courts?
A
The power to limit Supreme Court review is limited by due process of law. Congress may deny all Supreme Court review of certain cases, but it must permit jurisdiction to remain in some lower federal court. In addition, certain avenues of review may be eliminated but not all avenues.
8
Q
- What basic limitations are imposed upon all federal courts?
A
All federal courts are limited in jurisdiction to cases of controversy. The matter before the court must be definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial controversy. Federal Courts will not issue advisory opinions.
9
Q
- What is ‘ripeness’?
A
Under the requirement of a case or controversy and pursuant to principles of judicial self-restraint, the Court will not decide constitutional questions before it is necessary to do so.
10
Q
- Will the Court issue declaratory judgments?
A
The Court may issue a declaratory judgment if there is a genuine controversy, the issue is ‘ripe,’ and a real threat of harm is present. If no claim of harm or justiciable controversy is alleged by the complaining party, the Court will not consider the case.
11
Q
- What is a moot case?
A
A moot case is one in which there is no case or controversy. In some instances, a case is not moot even if a jail sentence has been served. The issue is recurring in elections problems, or where there is a voluntary cessation of activity by the plaintiff. The Court will not review a moot case.
12
Q
- Define ‘standing.’
A
Standing concerns the requirement of a case or controversy and the prudential principles of judicial self-restraint. The second is a self-imposed limitation. Standing requires that there be a direct and immediate injury and causation showing that the injury suffered can be traced to the challenged action and redressed by judicial relief.
13
Q
- Can Congress confer standing by federal statute?
A
Yes. However, the statute may not go beyond the article III requirement of ‘injury in fact.’ Complainants must demonstrate that they have engaged in conduct or wish to do so and that the challenged action poses a real and immediate danger to their interests.
14
Q
- May a person assert the rights of third parties before the Court?
A
Generally not. Pursuant to the principles of judicial self-restraint, the court will only permit the injured person to claim a violation of his constitutional or statutory rights. An exception lies if it is difficult for a third party to assert the rights or if a special relationship exists between the claimant and the third party.
15
Q
- How is standing determined for an association?
A
An association has standing even if no injury is suffered if the members themselves have standing, the interests asserted are germane to the association’s purpose, and neither the claim asserted nor the relief requested require the members to participate in the suit.
16
Q
- What standing does a state have before the Court?
A
A state has standing to attack federal provisions regarding property interests. A state has no standing to attack a federal statute on the grounds that Congress has exceeded its delegated powers. In addition, a state is not considered parens patriae for its citizens.
17
Q
- What additional requirements besides standing are imposed for review of state court decisions?
A
(1) State procedures must be exhausted. (2) There must be a federal question. (3) The judgment must be final, i.e., no further proceedings can be pending that could alter or modify the judgement. An issue is final regardless of state actions to be taken if a federal issue is conclusive, the issue will survive state court review, a later federal review would be impossible, or if the delay would seriously erode federal policy. (4) The state court decision must turn on a federal issue.
18
Q
- What is ‘strict necessity’?
A
The Court will only decide those constitutional issues that are actually raised in the case before it, and will not decide them in broader terms than are required by the precise facts to which the ruling is to be applied.
19
Q
- What is the ‘Abstention Doctrine’?
A
A federal court may abstain from granting an injunction or declaratory judgment and remand the parties to state court for an interpretation of a statute. This is usually done if there is an ambiguity that the state court may be able to clarify to avoid the constitutional issue. It is not done if the issue regards free speech or where further delays are unjustifiable.
20
Q
- What is the effect of a declaration of unconstitutionality?
A
Depending on the issues presented, the ruling may apply retroactively to all earlier positions making them void ab initio. The decision may also be interpreted to apply to only a partial invalidity, depending on the nature of the statute and its severability from the unconstitutional portion.
21
Q
- What is the Doctrine of Implied Powers?
A
Despite the doctrine of enumerated powers, the doctrine of implied powers holds that in addition to those powers specifically enumerated in the Constitution, certain broad powers are to be implied from the Necessary and Proper Clause.
22
Q
- What is the Necessary and Proper Clause?
A
Congress is not limited to only those means that are absolutely necessary. It may use any appropriate means to achieve the ends specified in the enumerated powers. It is for Congress to decide the need for particular means, not the Court.
23
Q
- What are inherent powers?
A
International powers are considered to be inherent federal powers even though not expressly recited in the Constitution.
24
Q
- Can legislative powers be delegated?
A
The Nondelegation Doctrine has been abolished. The Court has been very liberal in its interpretation of the intelligible standards needed for Congress to delegate its legislative powers. They may even be delegated to the judicial branch.
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25. Will a tax be upheld in an area where Congress has no power to regulate?
Yes. The tax will be upheld if its dominant intent is revenue-raising rather than penal in nature. The objective test is whether or not the tax raises revenue. The subjective test looks to the people who enforce the tax, the detailed activity that is taxed, what if any scienter is required, and the amount of the tax.
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26. Can Congress spend tax revenue with the purpose of regulation?
Where Congress has the power to regulate, it may. If Congress has no power to regulate spending, this may be upheld if it satisfies a federal fiscal purpose. However, spending is limited to general welfare, and it may not be in violation of individual rights.
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27. Does the war power provision of Congress extend after the cessation of physical hostilities?
The war powers extend beyond the cessation of hostilities. They may not be as all-encompassing as during war, but they have been upheld.
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28. Who has power over naturalization and citizenship?
Congress has plenary power over aliens. If not on U.S. soil the authority of exclusion is virtually absolute. However, when they are on U.S. soil, they do have certain procedural rights, and they are considered to be persons under the fifth amendment. The power of naturalization is vested exclusively in Congress. Congress does not have the power to take away citizenship unless that citizen intended to relinquish citizenship.
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29. Is Congressional power over property absolute?
Only Congress has absolute power over United States property.
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30. Is Congress' investigatory power enumerated or implied?
Congress' investigatory power is implied from the power to legislate. The power to investigate is limited to inquiries about all matters upon which Congress could choose to act. The principle method of enforcement is by contempt. The privilege against self-incrimination, first amendment rights, and due process safeguards apply.
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31. Does the President have the power to remove appointees?
The Constitution is silent on these powers. Officers appointed by the President serve at the will of the President. Officers who serve in administrative bodies created by Congress may be removed by the President only for causes specified in the statute creating the organization.
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32. What types of legislative powers does the President have?
The legislative powers of the President are limited. Congress may grant powers by delegation. The Veto power is legislative, but that may be overridden by 2/3 majority of each House. As Commander-In-Chief, the President has legislative power in 'theaters of war' to establish military governments. There may also be an inherent power to act in great emergencies limited to congressional denial of authority.
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33. What is the scope of Executive Privilege?
There is no express recognition of Executive Privilege in the Constitution. Executive Privilege is derived from separation of powers. This privilege is given utmost deference by the courts for military, diplomatic, or sensitive national security interests. Other communications are presumptively privileged. There is an absolute immunity from civil damages. 34, Does Executive Privilege extend to presidential aides? They may be entitled to absolute immunity in the sensitive areas of foreign policy, national security, and military affairs. Ordinarily, they have qualified immunity and a shield from civil damages if their conduct does not clearly violate statutory or constitutional provisions under a reasonable person standard.
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35. What are the foreign affairs powers of Congress?
Congress has the power to regulate commerce with foreign nations, to declare war, to raise and support armies, and to provide for a navy.
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36. What are the foreign affairs powers of the President?
The President is the Commander-In-Chief of the Army and Navy. He shall receive foreign ambassadors and ministers and shall nominate and appoint U.S. ambassadors and other public ministers, subject to Senate confirmation. In addition, he has certain treaty powers.
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37. May Congress delegate greater power to the President for foreign affairs?
Congress may delegate greater power to the President for foreign affairs than is permitted under internal affairs.
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38. What is the effect of a treaty on state law?
Under the Supremacy Clause, treaties are the supreme law of the land.
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39. How many different types of treaties are there?
There are self-executing and legislative enacting treaties. A self-executing treaty needs no further action by Congress to take effect. A legislative enacting treaty requires Congress to expressly or impliedly pass effectuating legislation to create rights and liabilities thereunder.
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40. What limitations are placed on the treaty power?
Treaties may not contravene constitutional prohibitions that protect individual rights. In addition, treaties must concern a proper subject of negotiation between our government and the governments of other nations.
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41. What are Executive Agreements?
The Presidential power to enter into agreements or compacts with foreign countries independent of the treaty power and without the consent of the Senate are known as Executive Agreements.
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42. What powers are exclusive to the states?
Under the tenth amendment, all powers not delegated to the federal government are reserved for the states.
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43. What federal powers are exclusive?
State action is prohibited expressly in Article I, section 10 in treaty, coining money, laying imposts and duties, and keeping troops of ships in times of peace. The nature of some federal powers make them exclusive, such as borrowing money on the credit of the United States. Other powers are exclusive by the grant, such as federal jurisdiction over the District of Columbia.
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45. What constitutes privileges and immunities of national citizenship?
These are the rights that arise out of the relationship of the individual and the national government. They do not include the Bill of Rights. They do include the right to pass from state to state, the right to petition Congress for grievances, the right to vote for national officers, the right to assemble peaceably, and the right to discuss matters of valid national legislation.
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46. What is the enabling clause of the fourteenth amendment?
The enabling clause of the fourteenth amendment allows Congress to enforce the Privileges and Immunities Clause of the fourteenth amendment by appropriate legislation.
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47. What article prohibits state discrimination against noncitizens or nonresidents of the state in respect to essential activities or basic rights?
Article IV, section 2 provides: The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
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48. Does Article IV, section 2 prohibit all discrimination against noncitizens or nonresidents of a State?
Discrimination is allowed if it is closely or substantially related to a substantial state purpose.
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49. May states tax property and activities of the federal government?
Federal property and activities enjoy a greater immunity from state regulation and taxation than the states are afforded from federal regulation and taxation.
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50. How has the power of the tenth amendment been limited by Court rulings?
The Court has held that state interests are more properly protected by the inherent restraints of state participation that are built into the structure of the federal system. States are represented in the Congress. In the absence of extraordinary defects in the exercise of congressional power, the court will limit tenth amendment applications Q & A Constitutional Law 51 - 100
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51. What limitations are imposed upon state taxation of the federal government?
When Congress has spoken, Congress may authorize or prohibit taxation by the states upon the federal government. When Congress has not spoken, the Supremacy Clause impliedly forbids state taxes that discriminate against federal property or activities and nondiscriminatory taxes that unduly interfere with or place a substantial burden on the federal government.
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52. Can states regulate the federal government?
Congress has complete power to forbid or permit state regulation of federal property or activities. Absent congressional consent the Supremacy Clause impliedly prohibits state regulations that interfere with the performance of federal functions.
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53. Is the federal power to regulate interstate commerce concurrent with that of the states?
Yes. They are concurrent powers of regulation. The Court must determine the respective scopes of the federal and state powers regarding interstate commerce.
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54. What is the scope of federal power over interstate commerce?
The Commerce Clause Article I section 8 grants the power to regulate commerce among the several states. There are two theories: (1) Congress has power over the channels or facilities of interstate commerce; or (2) Congress has power over activities that have a national economic effect.
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55. What is Congress' power over the channels or facilities of interstate commerce?
Congress has plenary power to regulate the channels or facilities of interstate commerce. This includes power over interstate carriers, roads, transmission facilities, etc. They can exclude from shipment any goods, persons, or activities found to be harmful to public health, safety, welfare, or morals. The motive of Congress is irrelevant.
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56. Is the federal police power broad enough to allow regulation even after interstate commerce has ended?
Yes. If the regulation relates to the conditions of the goods, the regulation may continue. It may not regulate the use of the goods.
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57. What is the scope of Congressional power regarding the regulation of interstate commerce under the national economic effect?
This power includes the power to prohibit as well as encourage both commercial and noncommercial activities. In addition, if the activity takes place wholly intrastate, it may still affect other states, making it subject to congressional regulation under this theory.
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58. Is federal power virtually limitless over regulation of intrastate commerce?
No. The intrastate activity must have a substantial relationship to interstate commerce or have a substantial effect on interstate commerce. However, the pertinent inquiry is not how much commerce is involved, but whether Congress could rationally conclude that the regulated activity affects interstate commerce.
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59. What is state regulation of interstate commerce dependent upon?
It is dependent on whether there is relevant federal legislation. Congress may expressly authorize or prohibit state regulation. If there is no express congressional authorization or prohibition of state law, the 'supersession' or 'preemption' doctrine applies. In addition, states have the power to act when Congress has not acted at all.
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60. What is the 'supersession' or 'preemption' doctrine?
When there is no express authorization or prohibition of state law in matters of interstate commerce, the Court determines the general intent of the federal statute and then upholds or forbids the state regulation in question.
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61. What factors does the Court look to in determining the general intent of Congress to apply the 'supersession' or 'preemption' doctrine?
The Court looks to: (1) the interest in uniform, national regulation; (2) historical or traditional classification of the subject matter as federal or local; (3) the completeness of the federal scheme; (4) the coincidence between the federal and state statutes.
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62. If Congress has not acted, when are state statutes that discriminate against interstate commerce valid?
Discriminatory state statutes will be upheld if they protect health and safety and if reasonable and adequate nondiscriminatory alternatives are unavailable. The only exception is if the state is a market participant.
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63. Are there any Court limitations imposed on state regulations that are not discriminatory against interstate commerce?
Yes. Under the 'subject matter' test, if the subject matter does not require a uniform national rule, is of local concern, and if it permits diverse regulation, it will be upheld. Under the 'balancing' test, the burden on interstate commerce is weighed against the strength of the state interest; unreasonable burdens are not upheld.
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64. When balancing is applied by the Court, what factors are considered?
The Court will give greater weight to statutes that further local health, safety, or social welfare interests than statutes that protect mere economic interests.
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65. Why do states have broad powers to regulate commerce involving liquor?
The passage of the twenty-first amendment has allowed the states to take greater liberties unconfined by commerce clause limitations. However, the twenty-first amendment does not permit regulation of interstate commerce.
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66. May states tax interstate commerce?
Yes. The tax is valid if Congress has not spoken, it is nondiscriminatory, and passes the test of due process, i.e., the benefits and protection afforded by the taxing state to those taxed have a sufficient relationship to the subject matter taxed, so the subject matter has a tax situs or nexus in the taxing state.
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67. What is an ad valorem property tax?
Ad valorem property taxes are based on the value of the property being taxed.
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68. When are ad valorem property taxes on the instrumentalities of commerce valid?
The instrumentalities of commerce are airplanes, railroad cars, and trucks, etc. The requirements are whether the property has acquired a taxable situs or nexus with the taxing state. Taxable situs is determined by the benefits and protection from the state. In addition, the property must have its value properly and fairly apportioned according to the amount of contacts with each taxing state.
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69. Can states levy ad valorem taxes on property in transit?
No. In transit is defined as cargo delivered to an interstate carrier or the cargo starting its interstate journey. Goods merely being prepared for transit are not immune from state taxation.
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70. What are 'doing business' taxes?
'Doing business' taxes are imposed for engaging in business within the state. They are valid if the activity taxed has a substantial nexus to the taxing state, the tax is fairly apportioned, it does not discriminate against interstate commerce, and if it fairly relates to the services provided.
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71. When are state taxes on solicitors or on representatives who engage in interstate commerce valid?
These taxes are not valid if the solicitor or representative orders are filled from goods shipped interstate. However, a state may impose a license tax on a peddler who actually sells and delivers wares within a state even if the goods are shipped from interstate commerce.
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72. What is the difference between a sales and a use tax?
A sales tax is imposed on sales consummated within the state. A use tax is imposed on the user of goods which were purchased outside the state. Use taxes are valid because they do not violate the Commerce Clause if they are levied at the same rate as a sales tax.
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73. If a sale is made to a buyer outside the state and the goods are delivered to the buyer by common carrier to the other state, is it valid for the seller state to impose a sales tax?
No. The Commerce Clause prohibits a sales tax by the seller's state in this situation.
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74. How are foreign corporations protected from burdensome state taxes or regulations?
Foreign Corporations are not protected under the Privileges and Immunities Clause as they are not citizens, and the Commerce Clause is not clear in this area. However, they are protected under the Equal Protection Clause. Under Equal Protection a state may not impose more onerous taxes on foreign corporations unless the discrimination is rationally related to a legitimate state purpose.
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75. Is a nondiscriminatory ad valorem property tax on all imported goods located in a state prohibited?
No. The question that has not been answered is whether such a tax is valid on goods still in transit.
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76. May a state impose an ad valorem property tax on instrumentalities of international commerce with situs in the state if the instrumentalities are foreign owned and are used exclusively in international commerce?
No. The taxes are not valid even in the absence of congressional authorization because of the stricter limitations and the need for uniformity in international commerce.
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77. Are the Bill of Rights privileges and immunities of national citizenship protected on the state level by the fourteenth amendment Privileges and Immunities Clause?
The Bill of Rights are not privileges and immunities of National Citizenship.
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78. Are all of the Bills of Rights protected under the fourteenth amendment Due Process Clause?
No. Only those principles that are implicit in the concept of ordered liberty or are fundamental to the American scheme of justice are protected. This is known as the doctrine of Selective Incorporation. However, if a right is incorporated into the Due Process Clause, then all aspects and elements of the rights must be deemed incorporated.
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79. What provisions in the Bill of Rights have been incorporated into the Due Process Clause of the fourteenth amendment?
(1) First: religion, speech, assembly, and petition of grievances. (2) Fourth: arrest, search, and seizure. (3) Fifth: double jeopardy, self-incrimination, bar against taking property. (4) Sixth: counsel, confrontation, trials (speedy, public, jury), compulsory process. (5) Eighth: cruel and unusual punishment.
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80. What provisions of the Bill of Rights are not incorporated into the Due Process Clause of the fourteenth amendment?
(1) Fifth: grand jury indictment. (2) Seventh: civil jury trial for suits of $20 or more.
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81. Does Due Process protect rights beyond those enumerated in the Bill of Rights?
Yes. Modern decisions indicate that Due Process protects rights not enumerated in the Bill of Rights.
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82. Does an Equal Protection Clause that applies to the federal government exist under the Constitution?
There is no federal clause for equal protection. However, the Court uses the fifth amendment Due Process Clause.
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83. Are federal equal protection under the fifth amendment and state equal protection under the fourteenth amendment equal in interpretation and application?
No. They are not always 'coextensive.' Special national interests may justify discrimination by the federal government. Such discrimination with a local impact would be judged under the same standard as state equal protection.
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84. What two amendments protect due process of law?
The fifth for the federal government and the fourteenth for the state governments.
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85. What is substantive due process?
Due process that involves the substance of legislation is substantive due process. This is opposed to procedural due process that protects interests in procedural safeguards imposed before a person can be deprived of life, liberty, or property.
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86. Is the right to privacy enumerated in the Constitution?
No. The Court does recognize this right. Some hold that it is part of the ninth amendment: 'the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.' Others hold that it is within the penumbra or emanations of various provision of the Bill of Rights. Still, others have indicated that it is implicit in the concept of liberty within the protection of Due Process. Others indicate that it is a basic human right fundamental to society.
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87. To what areas has the right of privacy been applied?
(1) Marriage. (2) Procreation. (3) Contraception. (4) Abortion. (5) Right to educate children as one chooses.
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88. Is the right to interstate travel protected by the Constitution?
Yes. The source of the right is not exactly clear, but it is protected. It is virtually unqualified.
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89. Is the right to vote a fundamental right?
Yes. There is a fundamental right to participate in elections on an equal basis. However, the states are allowed to set the requirements for voting in both state and federal elections.
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90. Is the confinement to a mental hospital a deprivation of liberty subject to protection by the Due Process Clause?
Yes. The person must be dangerous to himself and others, or incapable of surviving safely outside an institution.
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91. Do the Due Process Clauses in the fifth and fourteenth amendments protect civil liberties and property interests of persons besides those accused of crimes?
Yes. Procedural Due Process requires some form of notice and hearing before an unbiased decision maker. The Court will first determine whether a liberty or property interest has been infringed upon and if so it will then determine what procedures are due.
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92. How does the Court define liberty?
Liberty is the right to be free of physical restraints in both criminal and noncriminal contexts. This also includes the right to be free of defamation when it is made public in connection with some significant tangible interest.
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93. How does the Court define property?
It is more than an ownership of real or personal property. It includes entitlements as well.
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94. What is necessary for a person to be deprived of life, liberty, or property by due process?
It requires more than mere negligent conduct on the part of a government. It is open whether reckless or gross negligence is sufficient. Note: the purpose of Due Process is to protect people from the power of government and not to ensure government protection of people from each other.
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95. How does the Court determine whether a prior evidentiary hearing is required to meet Due Process of law?
The Court weighs the importance of the individual interest involved, the value of specific procedural safeguards to that interest, and the government interest in fiscal and administrative efficiency.
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96. Does due process require an evidentiary hearing before termination of welfare benefits?
Yes. Counsel need not be provided. The final decision must be based solely on evidence adduced at the hearing and must be rendered by an impartial decision maker.
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97. Does due process require an evidentiary hearing before termination of disability benefits?
No prior evidentiary hearing is needed. Notice, an opportunity to respond in writing, and a subsequent evidentiary hearing are necessary.
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98. Does Due Process require an evidentiary hearing before termination of a public employee who is subject to removal only for cause?
No pretermination hearing is required if there is some form of pretermination notice, an opportunity to respond, and a subsequent evidentiary hearing.
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99. Does due process require an evidentiary hearing before termination of public education by disciplinary suspension?
Temporary suspension does not require a formal evidentiary hearing. Due process requires some notice and an opportunity to explain. If there is a real danger, notice and hearing may follow removal as soon as practicable.
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100. Does due process require an evidentiary hearing before termination of public education by academic dismissal?
No. Due process is satisfied if the student is adequately informed and given an opportunity to respond. 01. Does due process require an evidentiary hearing before license suspension? No. If there is probable cause to believe that conditions of a license have been violated, the state's interest may permit the suspension without a prior hearing. However, there must be a prompt post-suspension hearing and decision on any disputed issue.
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102. Does due process require an evidentiary hearing before any prejudgment garnishment of wages?
Yes. However, if the application for prejudgment garnishment of wages is made before a judge, the application contains an affidavit based on personal knowledge setting forth specific facts, the creditor posts an adequate surety bond, and provisions are made for an early hearing, then it will be allowed.
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103. Does due process require an evidentiary hearing before termination of parental status?
Yes. In addition, appointment of counsel for indigent parents is only required if fundamental fairness demands it. Due process also requires that the state only need prove the charges by a preponderance of the evidence.
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104. What types of tests has the Court developed to determine whether Equal Protection has been violated?
(1) The rational basis test. (2) The strict scrutiny test. (3) The quasi-suspect test or mid-tier test.
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105. When is the rational basis test used to determine Equal Protection?
When the statutory classification is not based on suspect or quasi-suspect criteria, the rational basis test is used. It is used for virtually all economic and social regulations. Thus the classification is valid if it is rationally related to a proper state interest. Such classifications are presumed valid unless it is invidious, wholly arbitrary, or capricious. The burden of proof is on the challenger.
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106. What is a suspect classification?
Classifications that discriminate by race or national origin are suspect under Equal Protection. They will not be upheld unless found to be necessary to promote a compelling state interest, and no other means are available.
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107. Is a government's negligent discrimination enough to invoke the strict scrutiny test?
The government must act with intentional or deliberate discrimination for strict scrutiny to be applied.
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108. How does the Court determine intentional or deliberate discrimination?
Such discrimination may be found on the face of the state action, by unequal administration, or by an impermissible motive.
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109. When unequal administration is claimed under Equal Protection, who has the burden of proof to invoke strict scrutiny?
The burden of proof of unequal administration lies with the person who alleges this form of discrimination. They must show that it was intentional or purposeful.
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110. When will the requirements of the prima facie case of unequal administration be ignored?
The requirement of an intentional showing will be excused when the law gives uncontrolled discretion to officials to engage in intentional racial discrimination when such laws have been used in the past to discriminate on the basis of race, and the courts are incapable of remedying further discriminatory applications.
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111. How does the Court determine an impermissible motive in order to apply strict scrutiny?
If the impermissible motive is not obvious from the effect of the law, the Court will look into such factors as: (1) the historical background of the action; (2) the sequence of events leading to the action; and (3) the statements of the members of the decision-making body.
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112. What is de facto discrimination?
Laws that are racially neutral on their face, in their administration and their motivations may nonetheless be discriminatory in effect. They may have a racially disproportionate impact. This de facto discrimination is judged by the rational basis test.
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113. What presumptions does the Court use to prove racial segregation?
(1) Segregation of a significant portion of the school district creates the presumption that the entire school district is segregated. (2) Intentional segregation of a meaningful portion of the district creates a presumption that all the schools are segregated. (3) If the presumption of segregation exists, the burden shifts to school authorities to prove that it does not exist.
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114. What is the scope of remedial action required by school boards found to have intentionally discriminated?
The scope of the remedies attempted may not extend beyond the nature of the constitutional violation. A system-wide remedy may only be imposed if a system-wide problem has been found.
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115. Does the affirmative duty to eliminate intentional racial segregation extend beyond schools to voluntary organizations as 4-H Clubs operated by a state agricultural agency?
The affirmative duty to eliminate segregation does not extend to such organizations.
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116. Is government action that favors racial or ethnic minorities subject to the same standard of strict scrutiny review as is government action that discriminates against racial or ethnic minorities?
Yes. Government action that favors racial or ethnic minorities is subject to the same standard of strict scrutiny review as is government action that discriminates against racial or ethnic minorities.
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117. Does equal protection permit a state university to take race or ethnicity into account in order to achieve diversity in its admissions?
Yes. Race can be deemed a 'plus' in order to achieve racial diversity in admissions.
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118. Does Congress have the power to set aside ten percent of public work projects for minority businesses or does such a provision violate equal protection?
Congress may take such actions if the remedy is properly tailored, the burden on minority businesses is relatively light, there is no showing that other equally disadvantaged racial and ethnic minorities are left out, and there are procedures to prevent unjust participation by minority businesses not suffering the effects of past discrimination.
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119. Are federal classifications based on alienage subject to strict scrutiny for equal protection?
ecause Congress has plenary power over the admission or exclusion of aliens, federal classifications based on alienage are not subject to strict scrutiny.
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120. Is most state discrimination against lawfully admitted aliens suspect?
Yes. Most state discrimination against lawfully admitted aliens is suspect.
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121. Can a state exclude aliens from participation in its democratic political institutions?
If the state acts rationally, aliens may be excluded from voting, jury service, elective office, and nonelective offices that formulate execute or review important public policy. These include duties of police and probation officers. In addition, aliens may be denied positions as public elementary and secondary school teachers.
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122. Are classifications based on gender subject to strict scrutiny?
No. Classifications based on gender are not subject to strict scrutiny or the rational basis test. They are quasi-suspect and violate equal protection unless they are substantially related to important government objectives.
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123. If a law does not intentionally discriminate on the basis of gender but nonetheless has a sexually disproportionate impact, how will it be judged?
If the law does not intentionally discriminate and has a sexually disproportionate impact, it will be judged by the rational basis test. It will be upheld if it is rationally related to a constitutionally permissible state interest. This is de facto discrimination.
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124. Are laws compensating women for past discrimination valid?
Yes. Laws compensating women for past discrimination are valid if they are substantially related to an important government objective.
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125. Is discrimination against illegitimate children suspect?
No. Such discrimination is judged by the quasi-suspect standard. There must be an important state interest. This is the same for gender discrimination.
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126. Is economic status a suspect classification?
No. Economic status is judged by the traditional test. Discrimination against economic status is valid if it is rationally related to a legitimate state interest.
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127. By what standard is a law that discriminates against the elderly judged?
It is judged by the traditional test. If it is rationally based on a legitimate state interest, it will be upheld.
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128. Are fundamental rights implicitly guaranteed by the Constitution judged by the strict scrutiny test?
Yes. Fundamental rights that are explicitly or implicitly guaranteed by the Constitution are tested under strict scrutiny.
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129. What fundamental rights are implicitly guaranteed by the Constitution?
(1) Freedom of association. (2) The right to interstate travel. (3) The right of privacy. (4) The right to vote. (5) The right to be a candidate.
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130. Apart from forbidding the denial of the right to vote based on race, color, previous servitude, sex, age, or a failure to pay a poll tax, is the right to vote a general right mentioned in the Constitution?
There is no general right to vote mentioned in the Constitution.
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131. Does the Court permit any departure from precise mathematical equality when determining congressional districts?
Yes. Departures are permissible if unavoidable or if proper justification is shown. Legitimate goals include making districts compact, respecting municipal boundaries, preserving the cores of prior districts, or avoiding contests between incumbents.
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132. Are state legislative districts held to the same standards of precise mathematical equality as are congressional districts?
No. In fact, deviations under ten percent require no state explanation and are valid even if there may be other plans with even lower deviations. Deviations that are larger cannot be upheld unless explained by some acceptable state policy.
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133. What must a challenger prove for a political gerrymander to violate equal protection?
1) There must be an intent to discriminate. (2) The discrimination must result in a consistent degrading of a political group's influence on the political process as a whole. The discrimination can be shown to be actual or projected. The loss of a single election is an insufficient showing by itself.
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134. What is meant by 'the relevant population'?
The relevant population is the total population minus aliens, transients, and convicts. It is not just registered or actual voters.
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135. May state districting be based on the relevant population rather than the actual population?
Yes. If the districting is based on actual or registered voters and not the relevant population, the results will only be upheld if they are not substantially different from those obtained by the use of the relevant population.
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136. Does the one person one vote rule apply when a state provides for appointment of administrative or other nonlegislative state or local officials?
No. There is no constitutional reason why nonlegislative government officials may not be appointed rather than elected.
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137. Is there a fundamental right to be a candidate for public office?
There is no such fundamental right that is recognized by the Court. However, if state laws impose burdensome requirements on candidates, they are subject to the finding of a compelling state interest to remain within the requirements of Equal Protection.
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138. Do the fourteenth and fifteenth amendments restrict the actions of private individuals?
No. They restrict only governmental action.
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139. What is the scope of state action?
State action includes more than action by a state legislature, executive, judicial, or administrative branch. It also includes certain actions taken by private individuals. This includes conduct of government officials acting under the color of law and areas where there is significant state involvement.
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140. What power does Congress have to enforce constitutional rights?
Under the necessary and proper clause and the enabling clauses of the thirteenth, fourteenth, and fifteenth amendments, Congress is authorized to protect constitutional rights.
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141. May Congress legislate remedies against private as well as government action for violations of constitutional rights?
Yes. If the constitutional right operates against private individuals as well as governmental action, Congress may legislate remedies against anyone who interferes.
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142. What are the constitutional rights of national citizenship which arise from the relationship of the individual and the federal government?
The rights of national citizenship include the right to travel interstate, the right to vote in federal elections, and the right to petition the national government.
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143. Does the freedom to speak also include the freedom not to speak?
Yes. The freedom to speak includes the freedom not to speak.
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144. Does the freedom to speak protect the freedom to associate and the privacy in that association?
Yes. This also extends to the right to refuse to associate. The first amendment also protects the right to communicate and the right to receive information.
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145. Do first amendment rights protect action taken to acquire information to be used in connection with the freedom of speech, press, or association?
The first amendment does not protect conduct undertaken to acquire information to be used in connection with the freedoms of speech, press, or association.
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147. When is a regulation overbroad or vague?
An overbroad law is one that regulates a substantial amount of constitutionally protected expression or association. Alternatively, a regulation may contain imprecise language, whose vagueness or uncertainty may be read by persons of common intelligence as proscribing or regulating speech or association, producing a chilling effect.
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148. Is speech that is abusive, unpatriotic, and contemptuous of government or public officials lawful?
Yes, as long as this type of expression does not incite others to perform unlawful acts or involve a breach of the peace.
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149. What is the Holmes-Brandies test for punishing speech?
The government may only punish speech that produces or is intended to produce, a clear and imminent danger of a serious, substantial evil.
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150. What is the Dennis-Yates test for punishing free speech?
The government must have a substantial interest, and the speech must be aimed at urging people to act rather than merely to believe
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151. What is the Brandenburg test for punishment of speech?
The state may not penalize advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
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152. May an individual be punished for being a member of a certain type of group even though the individual does not engage in unprotected advocacy or other constitutionally unprotected activities?
The individual will be culpable if the group itself engages in advocacy or activities that are not constitutionally protected, if the individual has knowledge of the group's illegal advocacy, and has the specific intent that the illegal aims be accomplished.
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153. What is a bill of attainder?
A bill of attainder is a legislative act that inflicts punishment for past or future conduct on named persons or an easily ascertainable group without a judicial trial.
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154. Does the fact that the legislation imposes a burden upon a limited class of persons make it a bill of attainder?
No. The burden must constitute punishment, be of such a type of severity that it reasonably appears to be for the purpose of punishment, and be intended as punishment based on review of the legislative record rather than to encourage compliance with the law.
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155. What issues are raised when the government requires that disclosure of beliefs or associational memberships be made?
The issues presented involve first amendment freedom of association and fifth amendment privileges against self-incrimination.
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156. Is it permissible for a state to require that certain professionals disclose mere membership in organizations that advocate violent or forceful overthrow of the government?
No. Such an inquiry must be confined to knowing membership. The State may not act against any person merely because of his beliefs.
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157. What limitations are placed on the power of legislative committees to compel a witness appearing before it to testify?
The questions must not exceed the statutory bounds of the committee's power, the nature of the question must be made clear to the witness, and the committee cannot abridge first amendment rights which protect the privacy of one's views or associations.
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158. If a witness is cited for contempt for refusing to answer a legitimate legislative question at a hearing, what are the Due Process requirements necessary for the contempt conviction to stand?
Due Process requires that the nature of the legislative inquiry and the pertinency of the question must be made clear to the witness, or the contempt conviction cannot stand.
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159. What is a public forum?
By historical classification, it is public property that is associated with speeches, meetings, parades, and demonstrations. Examples: streets, sidewalks, and parks. Other types of property can become a public forum for as long as the state, by policy or practice, opens them for use by the public as places for expressive activity.
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160. What makes a time, place, and manner regulation of a public forum valid?
The regulation must be content-neutral, it must further a significant government interest, it must be narrowly tailored, and if a total ban is put in place, there must be an alternative media available for the protected interest.
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161. When may property that is not a public forum and not open to the general public be closed to the exercise of first amendment rights?
If the prohibition does not discriminate on the basis of the speaker's viewpoint, reasonable regulations may be put into place that draw distinctions on the basis of the subject matter or the speaker's status in light of the purpose that the property serves.
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162. When a state issues a license regulating public speech, may it also require a fee in order to defray public expenses?
The state may collect fees if they are reasonable.
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163. If a person seeking to exercise first amendment rights in public places is enjoined, may he legally violate the injunction and defend on the basis of a violation of constitutional rights?
No. Generally the injunction must be obeyed. It must be appealed unless the time factor would frustrate the exercise of his rights.
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164. What are 'fighting words'?
'Fighting words' are words that are intended as a personal insult. Their very utterance tends to incite an immediate breach of the peace. They are not protected by first amendment rights as their social value is outweighed by the public interest in order.
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165. If a speaker does not use fighting words but is convicted for a breach of the peace, how will the court determine if the speaker's words were a danger to peace?
The court will look at the activities to determine whether they produced imminent danger of uncontrolled violence by those onlookers or addresses of the speaker.
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166. When is a conviction for symbolic conduct subject to automatic reversal?
A conviction for symbolic conduct is subject to automatic reversal if constitutionally protected speech is made part of the offense or may have been relied upon by the fact finder to convict.
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167. What is necessary to convict a defendant of a civil libel of a public official?
If the matter is of public interest, the plaintiff must show malice by clear and convincing evidence. This balances freedom of speech on public matters and the need to protect personal reputations against injurious falsehoods.
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168. What are the requirements for malice to convict a defendant for defamation with respect to public officials?
There must be a showing that the publication was known to be false or was published with reckless disregard as to its truth or falsity.
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169. What is a public official?
Public officials include both elected officials and candidates for public office. They are public employees who have a substantial responsibility for the conduct of government affairs and hold positions of public interest.
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170. What are public figures?
Public figures are persons who have significant access to channels of communication in order to counteract false statements. They generally invite the attention and comment to which they have usually exposed themselves.
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171. What is commercial speech?
Commercial speech is speech whose dominant theme is simply to propose a commercial transaction.
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172. To what degree may commercial speech be regulated?
Because its content has a greater potential for deception and confusion, it may be regulated more easily and readily than noncommercial speech. False or misleading commercial speech may be prohibited.
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173. Does the overbreadth doctrine apply to commercial speech?
It does not apply to commercial speech. A person seeking to use commercial speech must prove that the speech actually used is protected by the first amendment.
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174. When can truthful commercial speech concerning a lawful activity that has an informational function be prohibited by the government?
It can be prohibited if a substantial government interest is served by the restriction, if the restriction directly advances the government interest, and if the restriction is no more extensive than necessary to serve that interest.
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175. What is obscenity?
Obscenity is a description or depiction of sexual conduct which taken as a whole by the average person and applicable contemporary community standards appeals to the prurient interest in sex, portrays sex in a patently offensive way, and (using a reasonable person standard) does not have serious literary, artistic, political, or scientific value when taken as a whole.
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176. What is meant by 'prurient interest' in obscenity?
The dominant theme of the material must appeal to the prurient interest in sex in the average normal person. Prurience identifies speech that appeals to a shameful or morbid interest in sex. If the material is designed for a specific group, this requirement is satisfied if the material appeals to the prurient interest of that group.
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177. Is deciding what is or is not obscene a question of fact for the jury?
Yes.
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178. May the transportation and importation of obscene material for either public or private use be made illegal?
Yes.
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179. When is the government allowed to censor or impose sanctions on those who engage in unprotected speech?
Generally, censorship is not permitted. However, in matters of national security, pretrial discovery, and in the interests of preserving a fair trial, censorship is permitted.
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180. When prior restraints on speech are permitted, what procedural and judicial safeguards are required?
Unless time is of the essence, a notice and hearing is required.
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181. Is the use of the mails considered to be part of the freedom of expression?
Yes. Any restrictions on the use of mails is subject to constitutional limitations.
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182. Are laws limiting the amount of money that a person can contribute to a political candidate valid?
Yes. It is deemed that the government has an important interest in stopping corruption or the appearance of corruption that may result from large contributions. The contributor may still spend at his own discretion as much of his own monies without restriction. Because of this loophole, such laws do not substantially restrict freedom of expression.
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183. Are laws that limit the amount of money that an individual or group may spend on a political campaign invalid?
Such laws impose substantial restraints on political speech. In addition, such laws do not pass the strict scrutiny limitations on first amendment rights.
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184. Is a special tax that applies only to the press valid?
Yes. It will be upheld if there is a compelling interest. The court will only examine the special tax and not the entire tax structure to determine whether the press tax is just a substitute for another tax.
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185. Can a prison administrator prohibit an inmate from being interviewed by the news media?
Yes. The prison regulations must be reasonably related to legitimate penological interests, and other means of communication must be available.
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186. What is the news reporter's privilege?
There is generally no such privilege. First, amendment rights of the press are no greater than those of the general public. The freedom of the press does not afford reporters a privilege to refuse to answer relevant and material questions asked during a good-faith grand jury investigation.
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187. Why are radio and television broadcasters more closely regulated than the press?
There are a limited number of frequencies available. In addition, the broadcasters have a special privilege and a special responsibility to give suitable time to matters of public interest and to present a suitable range of programs.
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188. Statute requires Newspaper to print replies by political candidates criticized in editorials. Is this valid?
No. The government cannot require newspapers to print messages they disagree with. Compare this to the restricted regulations for radio and television.
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189. Can the FCC forbid ownership of a radio or television station by a newspaper in the same community?
Yes. Common ownership is prohibited on the grounds of promoting diversity of information received by the public.
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190. How are the Establishment Clause and the Free Exercise Clause applied to states?
They are both fundamental personal liberties and apply to the states under the fourteenth amendment. 191, What is the three-part test to determine compliance with the Establishment Clause? A statute must have a secular purpose, have a principal or primary effect that neither advances nor inhibits religion, and must not foster excessive government entanglement with religion.
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192. Does an exemption from property taxation for real or personal property used exclusively for religious, educational, or charitable purposes violate the Establishment Clause?
As worded, this would not violate the Establishment Clause. If the tax exemption were limited to religious organizations only, it would.
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193. Does a state's permitting the use of public facilities by a religious organization violate of the Establishment Clause?
No. It has been determined that the secular purpose is to provide a public forum for the exchange of ideas. The use of the facility would be incidental with no primary effect of advancing religion, and there would be greater entanglement if the government sought to exclude religious groups.
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194. Is a law setting aside a time in a public school for meditation and voluntary prayer in violation of the Establishment Clause?
Yes. It is deemed that the sole purpose is to endorse a religious exercise, and it has no secular purpose.
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195. If a statute burdens the free exercise of a religion, how does the Court balance the competing interests?
The Court will balance the severity of the burden on the religion, the strength of the state interest, and whether there are alternative means for the state to accomplish its purpose that would impose a lesser burden on religion.
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196. Is a court or jury forbidden from finding that any person's religious beliefs are untrue?
Yes. Courts must respect sincerely held religious beliefs even though they may not appear to be logical, consistent, or comprehensible to others. However, a court can determine if a person has a good faith belief in the asserted religious tenets.
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197. May courts resolve disputes involving church doctrines between factions in a church involving the right to church property?
No. The decision of the church tribunal is conclusive in the absence of fraud or collusion. This is true even when the claim is that the church has not acted by its own rules.
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198. How is standing determined for a violation of the Free Exercise Clause?
The person must show a direct personal injury and claim an interference with his own religious beliefs.
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199. How is standing determined under the Establishment Clause?
A person need only be directly affected by the action complained about.
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200. What is a public use?
A use is held to be public if it is rationally related to a conceivable public purpose. The courts will not consider the desirability of a particular taking or the extent to which the property must be taken in order to satisfy the public purposes.
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201. When does a taking occur?
A taking will almost always be found if there is an actual appropriation or a permanent physical invasion of private property by the government. However, there is no clear formula.
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202. When a taking occurs under eminent domain powers, what determines whether a use is public?
There must be a public advantage. There need be no general public use. The state may authorize the taking and use by private persons if it is in the public interest.
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203. How is just compensation determined if a taking is found?
It is a taking if it is not reasonably necessary to effectuate a substantial government purpose, or if it has an unduly harsh impact on specific investment-backed expectations. The Court will balance the public need against the private cost. No compensation will be required for burdens imposed on all similarly situated property. Just compensation is usually the fair market value of the property.
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204. What is involuntary servitude?
Peonage is involuntary servitude. Peonage is impressing one into the personal service of the creditor in order to liquidate a debt. The state may not make the nonpayment of debt, or the refusal to perform personal services to liquidate the debt, a crime in itself.
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205. No State may pass a law impairing the obligation of contracts. What does 'obligation' mean here?
'Obligation' means the terms of the contract along with the legal rules in force when the contract is made. It is presumed that the contracting parties adopt the terms of their bargain in reliance on the law in effect at the time the agreement is reached.
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206. What is the scope of impairment on private contracts?
A private contract can be modified by legislation that serves an important and legitimate public interest, is necessary for the achievement of that interest, and is a reasonable impairment of the contract.
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207. What factors are considered in determining whether a modification impairing a contract is reasonable and necessary for a public purpose?
The Court will look at the severity of the impairment, the reasonable reliance, and expectations of the contracting parties, the strength, and breadth of the problem involved, whether the law serves the general public or private concerns, whether it is permanent or immediate, and if the area is already regulated.
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208. Can a state bargain away its power of eminent domain or its police powers, or enter into a contract prohibiting the exercise of such powers?
The Contract Clause (Article I, section 10) does not require a state to adhere to a contract by which the state surrenders, ab initio, an essential element of its sovereignty.
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209. Does the Contract Clause apply to the federal government?
No.
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210. What is an ex post facto law?
It is a law that retroactively alters the law in a substantially prejudicial manner, so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.
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211. When does a statute retroactively alter the law?
It alters the law if it makes criminal an act that was innocent when done, and punishes such act, or if it prescribes greater punishment for an act than the law provided when it was committed.
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212. When is the right to counsel constitutionally required?
It is required in all prosecutions that result in actual imprisonment whether or not the offense is a felony or misdemeanor.
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213. May the prosecution make mention of a defendant's failure to take the witness stand?
A failure to take the witness stand by a defendant is treated as a claim of the privilege against self-incrimination. No adverse inference can be drawn from claiming a constitutional privilege.
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214. Does the fourth amendment protect places?
No. It protects people. The constitutional guarantee applies whether or not the evidence is obtained by any physical intrusion or trespass.
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215. When is punishment for a crime considered to be cruel and unusual?
Punishment is cruel and unusual if it is grossly disproportionate to the severity of the crime. Another approach is to look at whether society disapproves of that type of punishment. This is done by national consensus.
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216. May a jury consider a victim impact statement when considering the death sentence?
This is not permitted.
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217. Are the number of jurors on a jury fixed by constitutional mandate?
Yes. The Constitution requires a sufficient number of jurors to provide adequate group deliberation and a representative cross section of the community. This has been interpreted to be more than five jurors. Federal statutes require twelve.
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218. Is a unanimous verdict by a jury required for the conviction of a crime?
Unanimous verdicts are required in federal courts. Verdicts based on a substantial majority (9 of 12) have been upheld from state courts. If the jury is small (6 persons), a unanimous verdict is required.
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219. Must a jury be composed of a cross-section of the community?
No. The jury must be drawn from a pool of jurors that represent the community at large. Systematic exclusion of any identifiable segment playing a major role in the community is invalid.
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220. To obtain a reversal of a conviction by a jury not chosen fairly, must a defendant prove that the verdict was affected by the exclusion of a significant segment of the community?
No. The verdict will be reversed if the defendant proves that the jury was improperly selected. Improper selection deprives the accused of the constitutional right to a jury trial.
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221. In a death penalty case, may the state automatically exclude for cause all prospective jurors who express doubts about the death penalty?
No. The standard is whether the juror's views would prevent or substantially impair the performance of his duties in accordance with instructions and oaths.
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222. Do members of the public have standing to complain of any exclusion on the basis of sixth amendment rights to a public trial?
Members of the public do not have standing to complain under the sixth amendment. The right belongs only to the accused.
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223. What is a fundamental requirement of every criminal statute without which it will not be enforced?
All criminal statutes must be definite and certain in order to be enforceable. The statute must give fair warning of the conduct that it makes a crime.
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224. Is appellate review of alleged errors in a criminal trial required by the Constitution?
It is not required by the constitution. However, if granted by state law it must be done so that it does not unfairly discriminate against any convicted defendants because of their poverty.
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225. How does the Court determine whether an opinion is to be given retroactive effect?
If the integrity of the truth-finding process is affected, the reliance by the police on the old standard and the effect on the administration of justice will be considered before the Court will apply new standards retroactively.
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226. Are new rules applied to cases on appeal at the time the rule is published?
New rules will be applied to cases pending on direct appeal at the time the new rule is announced.
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227. If a constitutional claim was not developed in state court because the petitioner failed to comply with a state rule requiring that it be made timely, will the claim be heard in federal court?
The claim may be heard for the first time in federal court only if there is a showing of cause for noncompliance and there is a showing of actual prejudice.
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228. A is a conscientious objector and is required to perform alternative civilian service. He later applies for veterans' benefits and is denied. Is this constitutionally correct?
Yes. The Free Exercise Clause affords no right to a religious exemption from a neutral law that happens to impose a substantial burden on religious practice. A is not entitled to veterans' benefits because he is not a veteran. Equal Protection is not violated because A is not being discriminated against because of his religious beliefs.
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229. B's religion demands that he marry more than one wife. It is against the law to have more than one wife. Is this constitutionally correct?
The law is neutral and is applied to persons who engage in the action for nonreligious reasons. It is therefore valid as it will not violate the Free Exercise Clause. This is so even if the law imposes a substantial burden on those who practice this religion.
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230. State has passed a law to tax the sale of religious books and tapes by all religious organizations. What is the result?
This is not a violation of the Free Exercise Clause. The tax is valid as long as it is of general application.
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231. Amish parents educated their children over 14 at home. They have a fundamental religious tenet that their attending high school would endanger salvation. State requires that all children attend school until they are 16. What is the result?
The Court held that the state's strong interest in education was outweighed by the Free Exercise Clause and the right to educate children as one chooses. Note: if the statute involves free exercise and is neutral, it may be defeated if other constitutional issues are presented, such as the right to privacy in the education of one's children.
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232. State has just passed a law exempting all religious organizations from any type of ban on religious discrimination in employment. Is this valid?
Yes. This does not violate the Establishment Clause because this law only accommodates religious beliefs. It does not amount to sponsorship of any religion. It does not result in excessive entanglement but acts to avoid entanglement.
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233. Government has decided to build a road on public land that is sacred to a native American religion. Building the road would virtually destroy their ability to practice their religion. Can the native Americans stop the building of the road?
No. The Free Exercise Clause does not require the government to justify an otherwise lawful program whose incidental effect happens to interfere with the practice of certain religions.
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234. State was just ordered to afford jury trials in all cases involving serious criminal offenses. Does this law apply retroactively?
No. This new requirement does not apply retroactively because a nonjury trial is not necessarily unfair.
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235. The Court has just ruled that states may not use evidence obtained by illegal search or seizure. Does this apply retroactively?
No. The purpose of the rule is to deter unlawful searches. This has no bearing on the guilt or innocence of the accused.
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236. The Court has just ruled that indigents have a right to a free transcript on appeal. Will this be given retroactive effect?
Yes. The rule affects the effectiveness of counsel on appeal. The lack of a transcript poses a clear danger of upholding a conviction of the innocent.
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237. State has just passed a statute that states, 'It is illegal to be a member of a gang.' Is this valid?
The statute is invalid because of vagueness. The statute must give fair warning of the conduct that makes this a crime. What is a gang? When is one a member in a gang?
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238. State makes it illegal to willfully violate the constitutional rights of others. Is this valid?
This is valid. The requirement of mens rea alleviates any vagueness present in the wording of the statute.
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239. Judge failed to control coverage by the news media so that bedlam reigned and inflammatory stories aroused pubic opinion. What is the best theory by which the accused may appeal his guilty verdict?
The accused should appeal on his right to a fair trial. This type of courtroom conduct is violative of due process under the fifth and fourteenth amendments. The judge must protect jury impartiality. A conviction must be reversed if the trial court fails to take such steps as are reasonably necessary to protect the impartiality of the jury.
235
240. Bob is tried in State and is convicted by a 9 to 3 vote by the jury. Does this violate his constitutional rights?
No. Not all aspects of the Bill of Rights are incorporated by the fourteenth amendment. In federal court, a unanimous verdict by 12 jurors is required.
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241. Bob's verdict is overturned, and he is tried again. The State could only find five jurors to sit on the jury. Is this proper?
No. Five jurors has been deemed to be too few to meet constitutional requirements. There must be an adequate group deliberation and a representative cross section of the community. Five is not enough to met this requirement.
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242. Bob is tried by six people. They return a verdict of 5 to 1 for conviction. Is this enough for the conviction to stand?
No. When a jury is as small as six people, the verdict must be unanimous.
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243. Junior is given life imprisonment without the possibility of parole. This is because Junior has committed seven nonviolent felonies. How should Junior appeal this sentence?
Junior should appeal on grounds of cruel and unusual punishment. The sentence is grossly disproportionate to the crimes committed. Note: generally, substantial deference is given to sentence decisions of state legislatures and sentencing courts. Successful challenges are rare.
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244. Bob is convicted of the crime of being addicted to the use of narcotics. Is this valid?
No. It is cruel and unusual punishment for a state to make addiction a crime. Imprisonment for a status which the individual is powerless to overcome is prohibited.
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245. Junior just was convicted of rape. He is sentenced to death. Is this proper?
No. The punishment is grossly disproportionate to the offense of rape.
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246. State passes a law prohibiting future practice of medicine by any person previously convicted of a felony. Is this a valid law?
Yes. It is not an ex post facto law. The principal purpose is the protection of the health and safety of citizens, rather than additional punishment for convicted doctors.
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247. State charters a lottery company for 25 years. Three years later it puts the company out of business by legislation adopted under the state police powers. Is this valid?
The Contract Clause does not require a state to adhere to a contract by which the state surrenders, ab initio, an essential attribute of its sovereignty. A state may not bargain away its police powers.
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248. State passes a statute that retroactively impairs the obligation of a debtor to pay interest after the maturity of the debt when the contract is silent. Is this proper?
No. This would be in violation of the Contracts Clause (Article I section 10).
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249. Will the court uphold a statute that requires that seamen who desert their vessel in violation of their contracts be arrested and forcibly returned to the vessel for service?
This is one of the few areas where a personal obligation has always been enforced despite the thirteenth amendment stand on involuntary servitude. Another similar result is found in military conscription.
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250. State passes a criminal statute making any failure to render services, for which an advance was received and for which no repayment has been made, prima facie evidence of an intent to defraud. Is this statute valid?
No. This is peonage which is violative of the thirteenth amendment.
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251. State occupies A's land. A contends that State must condemn the land first before occupation. Because it did not do so, State has violated due process. Is this correct?
No. Due Process does not require that the condemnation of the land occur before occupation by the condemning authority. Due Process requires that State give the property owner reasonable notice and a reasonable opportunity to be heard and to offer evidence regarding the amount of compensation due.
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252. State decides to tax dairy farms in the state at the rate of $10,000 per cow. This tax is so excessive that all dairy farms must shut down. Is this a taking?
No. A tax is not a taking even when it is so excessive that an owner is forced to shut down.
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253. City rezones Ace's property from residential to farm property. This causes a 40% reduction in the value of the property. City refuses to reimburse Ace. Is City's position correct?
Yes. A zoning restriction is not a taking if it substantially advances a legitimate state interest and does not extinguish a fundamental attribute of ownership.
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254. State orders the destruction of all cedar trees that were spreading a disease to apple orchards. Is this a taking?
No. If the cedar trees were causing harm to an important state industry, it is not a taking despite an enormous reduction in value of the land.
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255. The military makes an unplanned occupation of B's property during the L.A. riots. Is this a taking?
No. If it was done primarily to defend the property rather than the public interest, it is not a taking.
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256. D is an innocent property owner (lessor) and voluntarily entrusts his airplane to criminal elements. The airplane is seized because it was used in connection with a crime. Is this valid?
If the owner did not do all that he could have reasonably done to avoid having the property put to an unlawful use, it is not a taking.
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257. State decides that Cement should take all the property from the factory to the river. Cement is a private company. Is the action by State valid?
The use is considered to be public if there is a public advantage. This may be a proper exercise of eminent domain if there is a public advantage in a private company taking the land from the factory to the river. 258, B believes in The Religion of Congressional Supremacy. The main tenet is that Congressmen should be revered as Gods. Would this be classified as a religion? Probably not. This religion seems to be based on a political and philosophical views and not much more. Although not clearly defined, a religion must be something more that a mere political or philosophical belief.
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259. Jury has determined that D really does not believe in his religion. They also returned a guilty verdict for mail fraud for soliciting funds for his movement that asserted that he was a divine messenger and that he had divine healing powers. Is this proper?
Yes. A jury or court may not find another person's asserted religious views untrue. However, a court or jury may determine whether a person sincerely believes the asserted religious tenets.
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260. Is the placement of 'In God We Trust' on all money a violation of the Constitution?
No. This is merely a public acknowledgment of religion. So is an official day of prayer, the inclusion of 'One nation under God' in the pledge of allegiance, and providing chapels for worship and meditation.
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261. County learns that its display of the nativity scene with its Latin inscription 'Glory to God in the Highest' is not permitted. They ask your advice about preserving the display. What should you tell them?
By creating a larger Christmas display and surrounding the current display with such items as a Santa Claus, reindeer, and a sleigh, or candy-striped poles with a Christmas tree, the current depiction need not be taken down.
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262. State opens its legislative sessions each day with a prayer made by a state-paid chaplain. Is this permissible?
Yes. The practice is deemed a part of history and tradition. It is a tolerable acknowledgment of widely held beliefs.
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263. County passes a zoning law that bars liquor outlets from within a one-mile radius of any currently established church. Is this valid?
This is probably valid because of its secular environmental purpose.
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264. State requires all elected officials to take a religious oath. Is this valid?
No. It violates the Establishment Clause. It acts as a sponsor to religion and a burden on religious liberty.
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265. School dismisses all students early one day per week to encourage attendance at religious classes off-premises. Is this valid?
Yes. This is merely an accommodation of religion.
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266. Students are released from regular classes an hour early each week to attend on-premises religious instruction. Is this valid?
No. This is deemed as aiding religious groups in spreading their faith.
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267. State passes a law setting time aside for silence in public schools to be used for meditation or voluntary prayer. What is wrong with this law?
It has no secular purpose. Its sole purpose is to endorse a religious exercise.
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268. State has a law on the books that only addresses tax exemptions for religious organizations. How do you attack such a law?
A tax exemption that is limited to religious organizations is too narrow and violates the Establishment Clause.
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269. State reimburses parochial schools for costs of administering teacher-prepared tests required by state law. Is this valid?
No. The primary effect is to advance religion since it is impossible to separate secular educational functions from the predominantly religious role performed by the schools.
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270. State gives grants to church-related colleges to construct buildings if they are used exclusively for secular education for twenty years. Is this valid?
No. If the buildings would still have value after twenty years, these grants would have the effect of advancing religion.
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271. State gives grants to church-related hospitals for constructing wards and for the care of indigent patients. Is this valid?
Yes. These grants have a secular purpose and have a primary effect of neither advancing nor inhibiting religion. They do not foster excessive government entanglement.
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272. State provides remedial, guidance, and therapeutic services which are performed off premises to all parochial schools. Is this program valid?
This program is valid because the services are preformed outside the schools. If performed inside, it would be invalid because of excessive government entanglement in supervision to ensure that the public school personnel remained religiously neutral.
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273. State lends secular school textbooks, maps, films, and lab equipment for parochial schools. Is this valid?
Only the lending of the secular textbooks is valid. The purpose and effect is to improve secular education. The rest are not valid. Their purpose is to advance religion because of the impossibility of separating them from their use in secular vs. religious education.
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274. State automatically excludes the press and the public during the testimony of a minor victim in a sex-offense prosecution. Is this ban valid?
No. There must be a particularized determination for each individual case or the blanket ban violates first amendment rights.
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275. State prohibits the press from preliminary hearings. Is this valid?
No. It violates first amendment rights.
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276. Defendant wants to protest Judge's decision to let the press into hearings to suppress illegally seized evidence. On what grounds should Defendant protest?
The first amendment guarantees the public to attend a criminal trial. However, this right may be outweighed by a compelling and narrowly tailored interest articulated in findings by the judge for matters that would affect Defendant's sixth amendment rights.
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277. By statute, State makes it a crime to publish the name of a rape victim. Press gets the name of a rape victim from official court documents open to public inspection and publishes a front-page story naming the victim. Is the statute valid?
State may prohibit the publication of information obtained legally only by a sanction that is narrowly tailored to further a state interest of the highest order. State's prohibition is not narrowly tailored.
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278. Congress refuses to give food stamps to persons who meet the low-income test because they are on strike. What is the best way for the strikers to attack this policy?
The best way is through first amendment rights. However, the first amendment does not require the government to subsidize the exercise of the right to free speech. The strikers will probably lose.
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279. State has passed a statute that limits corporation expenditures to matters that materially affect corporate business interests. Is this valid?
Limitations on expenditures or limitations on the content of speech about issues involving a material effect violate first amendment rights.
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280. Candidate makes a campaign promise to serve at a reduced salary. It is impossible for him to do so because of state law. State seeks to void the election based on this publicly made promise based on fraud. Is this proper?
No. Campaign promises that are illegal may not be made. However, a publicly made promise to serve at a reduced salary is constitutionally protected political speech. There is no compelling state interest to justify voiding the election of candidates who make promises in good faith despite the inability to accomplish them.
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281. State sues the NAACP for violating state policy on ambulance chasing and champerty for encouraging parents of black children to litigate against school segregation. What is the NAACP's best defense against this state action?
To interfere in the actions of the NAACP, State must show a substantial interest in protecting clients from objectionable practices. Here the NAACP is sponsoring litigation that is a form of political expression and political association. The NAACP seeks no financial gain, and there is no danger of conflict of interest between the NAACP and their clients.
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282. Paper prints an editorial criticizing the grand jury process, the current grand jury, and its current investigation. Judge places Paper in contempt. Is this proper?
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fter shipment ends. Is this regulation proper? Yes. This is an example of the broad power that Congress has to regulate interstate commerce. The rationale behind this regulation is that it makes inspection convenient. It assured that the bottles were so labeled while they were in interstate commerce. 365. Intrastate railroad carries goods produced and sold locally. How can the federal government justify regulating the railroad? The railroad may have a national economic effect because local markets compete with markets in other states. If so
it is subject to regulation. 366. Vito has a friendly loan service that charges 180% interest and carries unexpected dividends for nonpayment. How can Congress make loan sharking illegal? Because loan sharking may affect interstate commerce
