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CON II > Midterm Prep > Flashcards

Midterm Prep Flashcards

1
Q

Post Civil War, what was one of the key purposes of the Bill of Rights?

A

To apply most, if not all of the Bill of Rights to state and local government. OR to incorporate the Bill of Rights.

Prior, the Bill of Rights was only restrictive to the federal government.

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2
Q

Doctrine of Selective Incorporation

A

The justices considered on a provision by provision basis whether specific protections in the Bill of Rights were SO FUNDAMENTAL AND NECCESSARY to the concept of ordered liberty, that they applied to states through the “Due Process” Clause of the 14th amendment.

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3
Q

Which of the 1st ten amendments have not been incorporated to apply to the states?

A

3rd Amendment, 5th Amendment’s “Grand Jury Indictment” clause, and the 7th Amendment.

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4
Q

Incorporation

A
  • One of the most important structural features of the Bill of Rights.
  • It is a critical mechanism for expanding the scope of the K’s protections.
  • An important limit is the “State Action Doctrine.”
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5
Q

What is the “State Action Doctrine?”

A
  • Clarifies which entities are capable of violating the K
  • Generally, private parties cannot violate the K
  • EXCPETION: 13th Amendment’s ban of slavery
  • If otherwise private conduct requires state involvement to move forward, then the state’s involvement in the conduct must still comply with all the constitutional requirements for any state action, including the equal protection clause
  • Limits in K are limited to government or government officers and do not apply to private entities.
  • ->BECAUSE Congress has the power to prohibit discrimination by private entities BUT the K does not
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6
Q

14th Amendment “Due Process” Clause

A
  • Granted citizens the right to due process from state and local governments in addition to the federal government.
  • Selectively incorporating portions of the limitations on government action in the bill of rights, causing these limitations to apply to state and local governments.
  • Selectively incorporates constitutional limitations on government actions that are so fundamental and necessary to the concept of ordered liberty that these limitations must apply to state and local governments.
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7
Q

When would a private actors challenged activity be considered state action?

A
  1. The activity results from the state’s exercise of coercive power
  2. The state either overtly or covertly provides significant encouragement to the private actor
    OR
  3. The private actor will fully participates in a joint activity with the state or its agents
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8
Q

14th Amendment’s “Equal Protection” Clause

A

“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

Does not prohibit all discriminatory laws but Requires laws or other government actions that discriminate to have a SUFFICIENTLY GOOD REASON to do so.

How good a reason depends upon the nature of those that are being discriminated against.

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9
Q

Strict Scrutiny

A

Laws that discriminate on the basis of race, religion, or national origin.

  • Laws are upheld if they are NARROWLY TAILORED to achieve a COMPELLING government interests
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10
Q

Narrowly Tailored

A

Under strict scrutiny:

  • There must be no non discriminatory way to vindicate the same government interest
  • AND*
  • Laws should not be overly or underly inclusive
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11
Q

Intermediate Scrutiny

A

Applied to laws aimed to discriminate based on sex.

  • Laws must be SUBSTANTIALLY RELATED to an IMPORTANT government interest
  • The law does not have to be precisely drawn in order to survive intermediate scrutiny
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12
Q

Rational Basis

A

All other government action need only have a rational basis to satisfy the Equal Protection Clause

  • EXCEPTION: At will government employment which requires no reason
  • Requires the government action must be REASONABLY RELATED TO A LEGITIMATE STATE INTEREST
  • Does not examine the government’s actual justification But examines whether any possible legitimate interest would justify of the distinction
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13
Q

Rational Basis with Bite

A

The exception to traditional rational basis.

  • If the government action appears motivated for negative consequences against a specific group
  • -> Then it WILL FAIL review even if it is reasonably related to a legitimate state interest
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14
Q

Laws or Government Actions that are Neutral on their Face

A

The government must INTEND to take an action against a suspect class = HEIGHTENED SCRUTINY
* No heightened scrutiny = The law or government action produces a disparate impact.

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15
Q

Intent Requirement for Facially Neutral Laws

A

Must be there for heightened scrutiny
* Laws that discriminate for commonly accepted, benign reasons receive the same scrutiny as those that are downright nefarious

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16
Q

Diversity in Educational Institutions

A

Is a COMPELLING GOVERNMENT INTEREST but it must be narrowly tailored to achieve this goal
–> BUT MUST BE REGULARLY EVALUATED to ensure that race plays no greater role than necessary.

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17
Q

Equal Protection Clause and Due Process Clause

A

Equal Protection Clause of 14th amendment only applies to states
BUT
Similar principles applies to the federal government through the Due Process Clause of the 5th amendment

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18
Q

Discrimination based on Alienage

A

Federal government = only needs rational basis review
State law = Strict Scrutiny
* EXCEPTION: State laws regulating a political function
–> Rational Basis Review

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19
Q

Burden of Proof; Strict Scrutiny

A

Government needs to prove the law is necessary

* rarely meets this burden

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20
Q

Burden of Proof; Intermediate Scrutiny

A

Court not clearly stated rule

  • generally on government
  • government must defend interest it stated when the law was enacted, not just some conceivable legitimate interest
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21
Q

Burden of Proof; Rational Basis

A

Laws are presumed valid

* Burden on challenger to OVERCOME this presumption by establishing that the law is ARBITRARY OR IRRATIONAL

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22
Q

Proving Discrimination

A

To trigger strict or Intermediate scrutiny

  • MUST BE DISCRIMINATORY INTENT on the part of the government
  • Disparating effect on people in classifications WITHOUT INTENT IS INSUFFICIENT
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23
Q

3 Types of Discrimination

A
  1. Facially discriminating
  2. Discriminatory Application
  3. Discriminatory Motive
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24
Q

Facially Discriminating

A

Judged by the very language

* Creates distinction b/w classes

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25
Q

Discriminatory Application

A

Appears facially neutral

  • But may be applied discriminatory
  • If challenger can prove that a discriminatory purpose was used when applying the law, the law will be invilidated
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26
Q

Discriminatory Motive

A

Facially neutral law

* has a disparate impact AND discriminatory motive or intent

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27
Q

Fundamental Rights

A

Rights so deeply rooted in our nation’s tradition and history that they are considered fundamental

  • Including:
  • Right to travel
  • Right to vote
  • AND
  • Right to privacy
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28
Q

Right to Travel

A

Right to travel from state to state

  • to be a welcome visitor
  • if moving, treated like a natural born citizen with respect to state’s benefits
  • -> can have reasonable residency restrictions or waiting periods to get SOME government benefits BUT NOT anything that infringes newcomers by denying them basic necessities to live
  • international travel NOT fundamental
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29
Q

Right to Vote

A

26th Amendment

* all US citizens who are 18 years of age

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30
Q

Right to Privacy

A

Not generalized BUT recognized

  • Marriage
  • Contraception
  • Sex & Sexual Orientation
  • Abortion
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31
Q

2nd Amendment

A

Guarantees an individual’s right to possess a firearm unconnected with service and to use it for lawful purposes

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32
Q

What is procedural due process?

A

The government MUST ACT FAIRLY before depriving individuals of life, liberty, or property

  • Usually by providing:
    • NOTICE of the deprivation
    • AND -
    • Some kind of hearing in which it can be contested
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33
Q

What does the DUE PROCESS CLAUSES in the 5th and 14th amendment do?

A

They protect individuals against being deprived of their life, liberty, or property by the federal government and the States without due process of law.

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34
Q

What government action counts as a deprivation?

A

In order for the government action to be considered a deprivation under the due process clauses it MUST be:

  • intentional
  • reckless
  • or *
  • with deliberate indifference.
  • -> Mere government negligence may not generally give rise to a Due Process violation
  • -> Government INACTION is NOT ENOUGH to give rise to a due process violation
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35
Q

How does one know if the thing being deprived is an interests protected by the Due Process Clauses?

A
  • Life
  • Liberty
    • An interests against ongoing physical restraint, DEPENDING ON THE FORM
    • Generally, Substantative Due Process
  • Property
    • If the state or federal law has created a entitlement, the legislature that created it created a justifiable expectation that it would continue
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36
Q

What are some forms of LIBERTY INTEREST?

A
  • Prisoners have a liberty interest in avoiding additional restrictions that go above and beyond ordinary restrictions of prison life
    • State prisoners have a liberty interests against being assigned to it super max prison
  • Immigrants have a liberty interests against being deported or otherwise removed from the country
  • Biological parents have a liberty interest in the custody of their children
37
Q

What is the MATHEWS TEST?

A

The yardstick for measuring fairness when depriving individuals of their K protected interests.

  • Courts MUST BALANCE:
    • The importance of the interests involved
    • The degree to which the procedure will make a difference
    • AND -
    • Cost to the government

–> via Mathews v. Eldridge (76)

38
Q

What are the exceptions to the Mathew’s Test?

A
  1. In the context of civilian criminal prosecutions, the court has embraced greater deference to legislative judgments.
    * FOR EXAMPLE, a state rule of criminal procedure will only violate the due process clause when it contravenes a fundamental right.
  2. For military defendants, the court has held that judicial deference is at its peak when reviewing the procedures Congress has provided for the courts martial of service members.
39
Q

What is Substantival Due Process?

A

The due process clause is of the 5th and 14th amendment impose SUBSTANTIVE, and not just procedural constraints on government action

  • INCLUDES:
    • The incorporation of the Bill of Rights against the States
    • AND -
    • The protection of implied fundamental rights
40
Q

What happens if there’s no historical precedent on a particular conduct being protected from government intrusion?

A

Is that because the conduct isn’t sufficiently weighty the merit protection OR because it’s so fundamental like breathing that no government would ever have thought to attempt to regulate it.

41
Q

How does the Due Process Clause apply to a child’s education?

A

Parents should have some control over their children’s education.

42
Q

What did Justice Harlan say regarding DPC?

A

The liberty protected by the DPC is “a rational continuum which, broadly speaking, includes a freedom from ALL SUBSTANIALLY ARBITRARY IMPOSITIONS AND PURPOSELESS RESTRAINTS and which also recognizes that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.”

43
Q

What level of scrutiny should be applied to modern SDPC?

A

Like Equal Protection analysis, modern SDPC applies at least minimum rationality review to all government regulation.
–> HEIGHTENED SCRUTINY when the interests in question is deemed to be FUNDAMENTAL

44
Q

What is the Glucksberg Test?

A

The test created after Washington v. Glucksbergh to recognize new implied fundamental rights.

  • Courts must demand a careful description of the asserted fundamental liberty interest
  • and then *
  • Courts must look to see whether that interest is deeply rooted in United States history and tradition
  • -> Ps MUST ID a far more SPECIFIC interest
  • and then *
  • Demonstrate that the interest has been so venerated as to seldom be the subject of government regulation
45
Q

What was the rule created from Planned Parenthood v. Casey?

A

1) Reaffirmed Roe v. Wade: State may not prohibit abortion before viability, state may prohibit abortion after viability except where necessary to protect the woman’s life or health.
2) Strict scrutiny no longer used in evaluating government regulation.
3) New test is whether government regulation places an “undue purdon” on a woman’s right to abortion. State may regulate abortion before viability so long as not to place undue burden on the right.

46
Q

How have the courts defined “undue burden” in regards to abortion?

A

A state’s regulation “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non viable fetus”

47
Q

What is the rule from the courts regarding minors getting abortions?

A

A state can require parental notice and/or parental consent for an unmarried minors abortion, BUT ONLY IF a judge can also independently approved the abortion by concluding the abortion is in the minors best interests OR the minor is mature enough to decide for herself.

48
Q

What are the 3 interests identified in Roe v. Wade?

A
  1. The state’s interest in protecting the woman’s health
  2. The state’s interest in protecting the potentiality of human life
  3. The woman’s interest in her bodily autonomy
49
Q

What does viability mean in terms of abortion?

A

The point at which the average fetus is capable of surviving outside the womb

50
Q

What is the current rule regarding regulation of abortion in the 1st 22 weeks?

A

Can regulate if the regulation does not impose an UNDUE BURDEN on the right recognized in Roe

51
Q

What is the right recognized in Roe V Wade?

A

The woman’s right to choose

52
Q

What are considered to be the fundamental rights of our society?

A
  • Family autonomy
  • Procreation
  • Sexual activity
  • Medical decision making
  • Travel
  • Voting
  • Access to courts
53
Q

What is the rule created from Whalen v. Roe?

A

There is a fundamental right to control your own information but it is balanced with the States need to know certain information
–> Individual States have broad latitude in experimenting with possible solutions to problems of vital local concern.

54
Q

What is the rule regarding liberty interests for prisoners and procedural due process?

A

Regardless of the content of the statues and regulation, there is a liberty interest ONLY IF there is a significant deprivation of freedom that is ATYPICAL TO THE USUAL CONDITIONS OF CONFINEMENT

55
Q

What’s procedures are required for Procedural Due Process

A

When the government must provide due process, it must always supply certain basic safeguards such as:

  • Notice of charges or issue
  • The opportunity for meaningful hearing
  • AND *
  • An impartial decision maker
56
Q

What are the 2 distinctions with free speech methodology?

A

The distinction between:

* content based laws and content neutral laws

57
Q

Freedom of speech; content based laws

A

Government CANNOT regulate speech based on its content all

  • The government has no power to restrict expression because of its message, it’s idea, its subject matter or its content
  • Any law which attempts to will be presumptively invalid
58
Q

Freedom of speech: Content based laws; EXCEPTIONS

A
  • Unprotected speech like obscenity Xe, fighting words
  • Less protected commercial speech
  • Content based but content neutral purpose
  • Government chosen content
    • Art funding, library books
  • Government speech
    • Monuments and parks, license plates
59
Q

What are the 2 critical questions for government speech?

A

Is the government providing a form for private speech or is the government speaking?

60
Q

Vagueness; Freedom of Speech

A

A law is unconstitutionally vague if a reasonable person cannot tell what speech is prohibited and what is permitted

  • Coares v. City of Cincinnati (71)
    • Cincinnati made it illegal for people of 3 or more to assemble on the sidewalk in an annoying way
    • Annoying way is not defines therefore vague because it could be left up to an individual person who is just having a badd day
61
Q

Overbreadth; Freedom of Speech

A

A law is unK overbroad if it regulates substantially more speech than the K allows to be regulated and a person to whom the law K can be applied can argue that it would be unK as applied to others

  • SCHAD v. BOROUGH OF MT EPHRAIM (1981)
    • Adult bookstore had coin operated live shows
    • City had an ordinance against live entertainment
      • -> If applied all around, there would be almost no entertainment
62
Q

Relationship b/w Vagueness and Overbreadth; Freedom of Speech

A
  • Cases usually challenge both
  • Not identical but overlapping
  • BOARD OF AIRPORT COMMISSIONERS OF THE CITY OF LA v. JEWS FOR JESUS (1987)
    • LAX became a 1st Amendment free zone
    • By that justification, anyone wearing a pin would be in violation of this
63
Q

PRIOR RESTRAINTS; Freedom of Speech

A

An administrative system or a judicial order that prevents speech from occurring

  • A person violating an unK law may not be punished BUT a person violating an unK prior restraint generally MAY BE punished
  • Court Orders as a Prior Restraint
    • -> Even if the statute if a violation of the 1st A., the court order, once violated, makes it punishable
64
Q

What is an Infringement of Freedom of Speech?

A
  • Prior restraints ARE infringements of expression and MUST MEET 1st amendment standards
  • Laws that SIGNIFICANTLY burden speech are ones:
    • That allow CIVIL LIABILITY for expression
    • That PREVENT compensation for speech
    • That COMPEL EXPRESSION
    • That CONDITION A BENEFIT on a person’s foregoing speech
    • AND -
    • That PRESSURE people NOT TO SPEAK
65
Q

Civil Liability; Freedom of Speech

A
  • Civil liability for speech even in the context of private civil litigation is an interference with speech
    • THEREFORE, MUST MEET 1st A. scrutiny
    • THEREFORE, any civil liability MUST COMPORT with 1st A. standards
66
Q

Prohibitions on Compensation; Freedom of Speech

A
  • Infringe freedom of speech by prohibiting individuals from being paid for their expression
    • US v. National Treasury Employee Union (1995)
      → ESTABLISH: restrictions on payments for speech – whether content-based or content-neutral – are infringements on expression and must meet 1st A, scrutiny
67
Q

Compelled Speech; Freedom of Speech

A

RIGHT NOT TO SPEAK

  • Saluting the flag; example of compelled speech
  • Conduct MUST BE expressive, in nature
68
Q

What are the 7 possible infringements on Freedom of Speech?

A
  • FIRST: Law barring speech
  • SECOND: Prior restraints
  • THIRD: Civil Liability
  • FOURTH: Preclusion of being paid for speech
  • FIFTH: Compelled speech
  • SIXTH: Anonymous Speech
  • SEVENTH: UnK Conditions
69
Q

Right to Speak Anonymously; Freedom of Speech

A

McIntyre v. Ohio Elections Commission (1995)

  • 1st A protects the speaker’s right to remain anonymous
  • In order to be K, a regulation requiring a speaker to disclose his ID MUST BE narrowly tailored to a compelling government interest = Strict Scrutiny
70
Q

UnK Conditions; Freedom of Speech

A

Doctrine is the principle that the government CANNOT condition a benefit on the requirement that a person forgo a K right
* Applied inconsistently with the courts

71
Q

Unprotected/Less Protected Speech; Freedom of Speech

A
  • Incitement to Illegal Action (NONE)
  • Fighting words (NONE)
  • Hostile audience reaction (NONE)
  • Obscenity (NONE)
  • Commercial Speech (LESS)
  • Sexually oriented speech (LESS)
72
Q

Bradenburg Test

A

Test to determine if speech is intended to be INCITEMENT TO ILLEGAL ACTIVITY

  • Intent to incite illegal action
  • Imminence of the illegal action
  • Likelihood that the action will happen
73
Q

Fighting Words: Freedom of Speech Exceptions

A

Words that have the direct tendency to cause violence

  • There is no requirement that there actually be a fight that results from the words
  • 3 areas of restrictions to fighting words
    • Directed at another person
    • Vague/Overbroad
    • Content Based
  • Must be directed at a particular person
74
Q

HOSTILE AUDIENCE REACTION; Freedom of Speech Exceptions

A
  • Clear and present danger
  • Crowd control is not possible = MUST SHOW
    • Speaker ignores police
    • Speaker provoked reaction
75
Q

OBSCENITY; Freedom of Speech Exceptions

A

Miller v. CA TEST:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a while, appeals to the prurient interest
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law
  • AND *
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
76
Q

COMMERCIAL SPEECH; Freedom of Speech Exceptions

A

Speech on behalf of a business with the intent of earning revenue or profit.
* 1st Protection of Speech is at a minimal

77
Q

FIRST AMENDMENT: RELIGION

A

Congress SHALL make NO LAW respecting an establishment of religion, or prohibiting the FREE EXERCISE thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

  • Free Exercise Clause looks at the individual to have whatever religion
  • Establishment Clause looks at the government to not favor one religion
78
Q

History in Interpreting the Religion Clauses; 3 Main View of Religion Among Key Framers

A
  • -> Evangelical View (Roger Williams)
  • The government involvement with religion would corrupt and undermine religion
  • -> Jeffersonian View (Thomas Jefferson)
  • Religion would corrupt and undermine the government
  • -> Madisonian View (James Madison)
  • One of many civil rights is the right of religion
79
Q

SUPREME BEING; Freedom of Religion

A

US v. SEEGER (1965)
* The words SUPREME BEING are their to clarify the meaning of religious training and belief so as to embrace ALL religions and to excluded essentially political, sociological, or philosophical views
* Supreme Being is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption
→ OFFERS NO CRITERIA FOR ASSESSING WHETHER A PARTICULAR VIEW IS RELIGIOUS UNDER THIS DEFINITION

80
Q

REQUIREMENTS FOR A SINCERELY HELD BELIEF; Freedom of Religion

A

US v. BALLARD (1944)

  • Allowing the jury to hear about the truth of falsity of a religious belief is a slippery slope
  • If those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with religious beliefs of any sect
81
Q

THE RELEVANCE OF RELIGIOUS DOGMA AND SHARED BELIEFS; Freedom of Religion

A

Thomas v. Review Board of the Indiana Employment Security Division (1981):
* The guarantee of free exercise is NOT LIMITED to beliefs which are shared by all of the members of a religious sect

82
Q

Religious Freedom Takeaways

A
  • First, the government may consider only sincerity of belief, NOT TRUTH in evaluating whether = religion
  • Second, an individual may be recognized as having sincere religious beliefs even if different from the rest of faith
  • Third, in the statutory context, the court has said religion is that which occupies the place in a life that religion does for a religious person. US v. Seegar
83
Q

WHEN DOES GOVERNMENT INFRINGE ON FREE EXERCISE?

A

Generally, applicable, religion neutral laws that have the effect of burdening a particular religious practice DO NOT NEED TO BE JUSTIFIED by a COMPELLING STATE INTEREST UNLESS another K protection is burdened in conjunction or the government has provided individualized treatment in its unemployment compensation scheme

84
Q

RELIGIOUS FREEDOM RESTORATION ACT (RFRA)

A

If government does anything that substantially infringes on religious right, strict scrutiny is applied
* INVALIDATED in relation to STATE AND LOCAL GOVERNMENT
* VALID in relation to FEDERAL
–> Is the actor the FEDERAL GOVERNMENT =
STRICT SCRUTINY

85
Q

LEMON TEST; Establishment Clause

A

3 Part Test (Lead Standard)

  • The statute MUST have a secular legislative purpose
  • Its principal or primary effect MUST BE one that neither advances nor inhibits religion
  • AND *
  • The statute MUST NOT foster an excessive government entanglement with religion
86
Q

ACCOMMODATION; Establishment Clause

A

The court should interpret the EC to recognize the importance of religion in society and accommodate its presence in government

  • SPECIFICALLY under this approach the government violates the EC ONLY IF IT LITERALLY ESTABLISHES A CHURCH or COERCES RELIGIOUS PARTICIPATION
  • Because barring all attempts to aid religion through government coercion goes far toward the attainment of the object of the EC
87
Q

ENDORSEMENT TEST; Establishment Clause

A

Reasonable Person + Perspective = ENDORSEMENT TEST

  • Do you know the area and people; it will be guided by those guidelines
  • Government action cannot symbolically endorse a particular religion or religion over secularism
  • Government action ENDORSES religion if it sends a message to non adherent that they are outsiders
88
Q

Statute Discriminating Against One Religion

A

Strict Scrutiny

89
Q

Substantive Due Process v. Equal Protection

A

If a fundamental right is being infringed upon for all persons, the issue is likely one of substantive due process. If the right is being denied to only a particular class of persons, than equal protection is in play

CON II (1 decks)

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