Test 3 Flashcards
(134 cards)
1
Q
According to United States v. Carolene Products Co. (1938), Justice Harlan Stone in Footnote #4 of his
majority opinion laid out three possible EXCEPTIONS to the rule that judges ought to presume government actions constitutional. He stated that the normal deference towards government should be curbed in favor of “more exacting judicial scrutiny” in all of the following cases EXCEPT
A
when legislation involves the commerce clause
2
Q
Under the “strict scrutiny” test (upper tier), the burden of proof requires that the __________ show a _________ when laws interfered with fundamental rights or laws that use suspect classifications .
A
Government/ compelling interests for its actions
3
Q
Which of the following Equal Protection Standards would the Court use when government seeks to
classify people on the basis of race, ethnicity or national origin?
A
Strict Scrutiny Test
4
Q
Which of the following are now considered "inherently suspect" classifications subject to "strict judicial scrutiny" under the 14th Amendment's Equal Protection Clause? 1. race 2. gender (sex) 3. wealth 4. national origin 5. age 6.handicap THE CORRECT COMBINATION IS:
A
1 & 4
5
Q
Under the “two-tier approach” for determining when the Equal Protection Clause is violated, the
Supreme Court requires a state to show a “compelling interest” in order to justify their law or action when:
1) a fundamental right is threatened.
2) the state uses a “ suspect classification” as the basis for treating people differently.
3) the state classifies according to gender.
4) the state makes classifications based upon the age of a person.
THE CORRECT COMBINATION IS:
A
1 and 2 only
6
Q
According to the City of Richmond v. J.A. Croson Co. (1989), only permissible affirmative action
programs
A
All of these requirements were set forth in the City of Richmond v. J.A. Croson Co. (1989) case
7
Q
In Obergefell v. Hodges (2015), the Supreme Court declared that same sex couples had a right to marry due to
A
All of these are reasons the Court declared same sex marriage a protected right.
8
Q
The Supreme Court had only applied strict scrutiny to indigency-based classification schemes when such schemes threatened
A
Both of these principles
9
Q
Today, the 14th amendment equal protection clause interpretations have been settled and no longer
requires interpretations.
A
False
10
Q
. In Korematsu v. United States (1944), Justice Hugo Black began the Court’s opinion by setting out a
standard of “rigid scrutiny” for all racially based classifications in which
A
all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect
11
Q
In Reed v. Reed (1971), the Supreme Court for the first time did all of the following except
A
use the strict scrutiny position to decide a sex discrimination case.
12
Q
According to the Supreme Court, sex based classifications have recently received ______ level of scrutiny and the state (government) must demonstrate a ______ between its governmental objectives and the means it uses to achieve them.
A
intermediate/substantial relationship
13
Q
In Regents of University of California v. Bakke (1978), affirmative action in higher education must
A
All of these are to be used by the government (state) when instituting affirmative
actions programs in higher education
14
Q
In relationship to government (state) actions, the Supreme Court have asserted that judges exercise
_________ when ruling on legislation affecting age and disability.
A
rationality scrutiny
15
Q
Aging persons, persons with disabilities, the poor, and sexual orientation cases have not been
considered
A
as supect classes and therefore have not recieved heightened scrutiny
16
Q
John Barron lost his case in Barron v. Baltimore because:
A
The guarantees in the Bill of Rights did not apply to the states.
17
Q
Why is Palko v. Connecticut a significant case?
A
The Supreme Court determined the process by which “fundamental” rights would be
applied to the states, known as selective incorporation.
18
Q
Where in the Constitution do we find the Due Process Clause?
1. the Ninth Amendment
2. the Fourteenth Amendment 3. the Fifth Amendment
4. the Fourth Amendment
THE CORRECT COMBINATION IS:
A
2 and 3
19
Q
The idea that the 14th Amendment’s Due Process Clause contains liberties BEYOND those found in
the first eight amendments is known as
A
total incorporation plus
20
Q
The first case to apply a portion of the Bill of Rights to the states was in which of the following cases
A
Chicago, Burlington, & Quincy Railroad Co v. Chicago (1886)
21
Q
All of the following are true of the second amendment EXCEPT
A
After McDonald v. Chicago (2010), the Supreme Court declared any restrictions on
the right the bear arms as unconstitutional
22
Q
The lone unincorporated portion of the 5th Amendment to NOT be incorporated is
A
Grand Jury Clause
23
Q
Which of the following is the most true statement of the 8th amendment?
A
Both of these are true
24
Q
All of the following are true of the right to privacy EXCEPT
A
According to the Supreme Court in Griswold v. Connecticut, the specific Bill of Rights
do NOT have penumbras in which the right to privacy are lurking
25
According to the ruling in Planned Parenthood v. Casey (1992), which of these limits on abortion is
NOT permissible?
Requiring that the spouse’s permission be obtained prior to an abortion
26
All of the following are considered fundamental rights by the Supreme Court although not
specifically enumerated in the Constitution EXCEPT
- Right to Freedom of the Press
27
Originally, the Bill of Rights only applied to the _____ government. However, the Supreme Court has
used the ______ to expand the Bill of Rights to the states.
federal/14th amendment
28
All of the following are true of the Supreme Court ruling in Roe v. Wade (1973) EXCEPT
the Supreme Court said that the right to privacy was NOT founded in the concept of
personal liberty of the Due Process Clause of the 14th amendment
29
In Planned Parenthood v. Casey (1992), the Supreme Court abandoned the rigid trimester approach and fashioned a new _____ rule to determine whether states could regulate abortion consistent with the fundamental rights to privacy announced in Roe v. Wade (1973).
undue burden
30
Colonial American free speech practices included all of the following EXCEPT
Colonial authorities vigorously protected free speech that criticized churches
31
In his essay On Liberty, John Stuart Mill expressed all of the following EXCEPT
Mill voiced strong support for the suppression of one man's ideas if they went
against the majority of society.
32
In the case of Schenck v. United States (1919), the Supreme Court held that
speech which creates a "clear and present danger" may be prohibited by the
government.
33
With the Yates v. United States (1957) decision, the Supreme Court
all of these are correct.
34
All the following are true of Gitlow v. New York (1925) EXCEPT
Made unconstitutional state criminal syndicalism laws
35
In Brandenburg v. Ohio (1969), the Supreme Court of the United States declared
All of these were declared by the Court in the Brandenburg case.
36
The expression of ideas and beliefs through symbols rather than words is called _______ by the Court.
Symbolic speech
37
Which of the following was a key part of the Court's decision in Tinker v. Des Moines School
District (1969)?
The conduct involved here was "symbolic expression" protected by the First Amendment.
38
All of the following are true of the Supreme Court's decision in Texas v. Johnson (1989) EXCEPT
held that flag burning was NOT protected by the First Amendment and did
pose an imminent danger to public safety.
39
All the following were determined under the Courts decision in Snyder v. Phelps (2011) EXCEPT
That the content of the protest was not related to the broad interest of society
and thus not public speech.
40
In Buckley v. Valeo (1976) the Court determined
All of these were ruled in the case
41
In Citizens United v. FEC (2010), the Supreme Court of the United States ruled all of the following EXCEPT
Corporations do not have any civil liberty or free speech protections.
42
Does the first amendment protect false speech?
According to the Supreme Court, false speech (intentional lies) can only be punished when tied to some harm such as defamation of character or fraud. b. not ever!
43
The absolutist theory of free speech contends
that certain forms of expression such as political speech are protected absolutely by the 1st amendment from governmental encroachment.
44
The first reference to a “wall of separation” between church and state was made in
Thomas Jefferson's Letter to the Danbury Baptist Association
45
The __________ involves governmental interference with the practice of a citizen’s faith, while the ___________ involves alleged alleged governmental support for or hostility toward religion.
Free Exercise Clause/Establishment Clause
46
The general applicable standard was applied in which of the following cases
Both of these
47
In Church of the Lukumi Babalu Aye v. City of Hialeah (l993), the Court overturned a local
ordinance banning animal sacrifices because
the ordinance singled out only one type of conduct -- religious -- and made it illegal
48
Which of the following is/are theories of the Establishment Clause discussed in the textbook?
All of these
49
In Everson v. Board of Education of Ewing Township (1947), the Supreme Court declared
All of these were declared under the Everson case
50
Under the Lemon Test, the purpose of the law must be secular, the effect must not advance or
inhibit a religion, and there can be no
Excessive entanglement
51
Which of the following is NOT one of the tests the Supreme Court uses to determine whether a law violates the Establishment Clause of the First Amendment?
the intent of the law must not reflect "actual malice."
52
In Engel v. Vitale (1962), the Supreme Court ruled
that state sponsored prayer in public schools was a violation of the
Establishment Clause
53
In Santa Fe ISD v. Doe (2000) all of the following were decided EXCEPT
The delivery of the pre-game prayer was not coercive
54
In which of the following decisions did the Supreme Court adopt an "accommodationist" position on the Establishment Clause?
Lynch v. Donnelly (l984)
55
In Agostini v Felton (1997), to determine whether various public programs violate the Establishment Clause, what used to be known as the so-called "Lemon Test" has now been
replaced by the justices considering whether such programs
whether the statute results in religious indoctrination and whether it defines the recipients by reference to religion
56
The display of the 10 Commandments and other religious material, such as in the case of Van Orden v. Perry (2005), the Supreme Court has been more accommodating allowing for religious
display if in
a historical context
57
there are not only procedural rights that give you equality under the law; this approach looks at substitive justice - what is the substance of the law and the government; equality for all citizens
communitarian approach to equality
58
the government has a positive duty to address inequalities between people, both public and private
initially, with the anti-discrimination, the government was passive and this is how the US used to work; this principle is active and what the government goes by on now
the group-disadvantage principle
59
a law in Louisiana that created separate but equal railway accommodations; a 7/8 white man sat in the white's car and was charges with an offense; the question: was the 14th amendment clause of equal protection being violated by the law? Was the privileges and immunities of citizens being violated by this law? If the 14th amendment and privileges and immunities weren’t being violated, was this a reasonable regulation? Decision: 7 to 1 said it was constitutional; The court said when it comes into privileges and immunities, there are national privileges, which the state can’t deny (came up with this in Slaughterhouse case), but state actions/privileges are up to them; so there are two levels of citizenship: state and national; national civil liberties can’t be denied, but the state can decide their own and can deny what they want to deny
The Supreme Court argued that social inequalities can’t be made up for, just civil and legal inequalities; states can address social inequalities however they want, as long as it is reasonable - separate but equal, it is fine; the state’s job isn’t to correct social inequalities
Plessy V. Ferguson
60
involves the University of Texas; UT didn’t have a law school yet for blacks, so no separate but equal facilities; so a black man applied to the UT law school. He was more than capable of getting in, but UT wanted to keep their separate but equal status, so they quickly made a black law school, just to make sure he wasn’t in the normal one. It was in Houston, in a basement, with three part-time teachers and barely had books. This wasn’t separate but equal.
Thurgood Marshall was his lawyer, and said he wasn’t getting an equal education.
The Supreme Court agreed that it was separate but not equal, so the man got admitted to the UT law school
it didn’t lead to Plessy v. Ferguson; it just said that “separate but equal” must truly be equal
it was a road to Brown v. Board of Education
Sweatt V. Painter
61
Footnote 4 says there are 3 exceptions to the rule - the standard was if the legislature was doing it and the people voted for them, then the court would primarily consider it constitutional - when there should be a more exacting, rigid judicial scrutiny: 1) when legislation prohibits/violates the bill of rights 2) when legislation restricts those political processes that can ordinarily be expected to prevent undesirable legislation - when legislation is limiting your right to vote 3) when prejudice against minority groups or if it tends to curtail those political processes for those minority groups
this ^^^ forms the upper tier
US V. Carolene Products Co.
62
upper tier scrutiny; compelling relationship between law and governmental goal; when there should be a more exacting, rigid judicial scrutiny: 1) when legislation prohibits/violates the bill of rights 2) when legislation restricts those political processes that can ordinarily be expected to prevent undesirable legislation - when legislation is limiting your right to vote 3) when prejudice against minority groups or if it tends to curtail those political processes for those minority groups
strict scrutiny
63
asserted that the 14th Amendment’s primary purpose was to protect newly-freed blacks from potential oppressors
Equal protection was considered more broadly as well; The court said when it comes into privileges and immunities, there are national privileges, which the state can’t deny (came up with this in Slaughterhouse case), but state actions/privileges are up to them; so there are two levels of citizenship: state and national; national civil liberties can’t be denied, but the state can decide their own and can deny what they want to deny; Slaughterhouse Cases- the law creating a monopoly was considered constitutional under 14th amendment
the Slaughterhouse cases
64
as long as there is a reasonable relationship between the law and the governmental goal, it is ok if it violates equal protection; applies to everything but race and national origin; the burden of proof falls to the person bringing the case to prove they are being discriminated against. The government just has to show a connection between the law and a valid government goal.
ex) disability falls under rational scrutiny - a police force can have a mandatory retirement age because a 70 year old can’t do the same things as a 30 year old
lower tier and equal protection
65
compelling state interest in strict scrutiny and involves fundamental rights and suspect classification
upper tier
66
created rigid/strict scrutiny for race; race cases considered suspect; dissent said the action was considered unconstitutional and the military doesn't get free reign; involves the US putting Japanese in internment camps
majority opinion - “when a law involves a specific group, that law is going to be more rigidly scrutinized, but sometimes there is such a strong, compelling interest in the government, it overrides those liberties, even thought that is unfortunate”
minority opinion - “this exclusion of Japanese for military necessary that has neither substance or support (because there was no evidence they had plotted against the US) goes over the brink of constitutional power and into racism”
Justice Jackson in his dissent says that if you look at this action and say it’s constitutional, then the military could basically do what it wanted
Korematsu V. US
67
fundamental right to marry basic civil right of man and state doesn't have unlimited power to regulate marriage; a man married a woman, who was mixed between native american and african american
Virginia had a law that outlawed whites marrying different races
16 states had similar laws
The court sided with the couple, saying marriage between races cannot be limited by the state
Virginia is trying to say the met equal protection and they say their compelling state interest is that interracial marriages harm the state, so they are preventing that. Therefore, they should fall in the lower tier of scrutiny
The court says there is a broad, organic purpose to the 14th amendment that judges can draw from and says equal protection was meant to get rid of all sources of racial discrimination, and this law was discriminatory, so it has to go. It also has to go because the law violates the fundamental right to marry.
Loving V. Virginia
68
used rational scrutiny for gender issues and equal protection clause to strike down a law based on sex; he court used the equal protection clause to apply to gender
A son had passed away and the estate automatically went to the father and the mother sued because she didn’t know why it went automatically to the dad. Just rational scrutiny was used
Reed V. Reed
69
govt must apply strict scrutiny for affirmative action, substantial state interest for affirmative action; a 35 year old white man, applied to med school and was rejected. The school reserved 16 places for minorities to make up for previous exclusion. The man said it wasn’t fair because he had the scores to get in
the Supreme Court sided with the man, saying that the man had to be let in, but they could have a system looking at race to admit people, but there can’t be a quota system. It set up that race issues have to be strictly scrutinized
University of California V. Bakke
70
affirmative action allowed only to remedy past discrimination when the govt can prove history of discrimination and program is narrowly tailored;
City of Richmond V. Croson
71
university can institute a race conscious program to achieve diversity but the program has to be continuously scrutinized; Texas has a law that says if you graduate in the top 10%, you automatically get in a public university. UT changed it to be top 7-8% and then they look at other factors, including race
The Supreme Court looked to see if it was a narrowly tailored program, they strictly scrutinized it, and said there is still an element of minority exclusion, so the use of race was considered constitutional.
So Fisher lost. UT used the Grutter program to look at a holistic picture of the person, race was just a part of that picture. The case was actually remanded (sent back to a lower court) to get more data on how this practice was actually affecting admissions. The dissent was written by Clarence Thomas, and he asked when do we reach critical mass (the maximum of diversity, race neutrality)? Who decides that it’s time to stop affirmative action? A judge? He goes on to say that affirmative action can have negative effects, such as creating stereotypes for racial groups.
The University of Texas V. Fisher
72
the gray area; ender falls under this; women have been oppressed through society and the government, but they aren’t a minority
heightened scrutiny
73
The United States brought suit against Virginia and VMI alleging that the school's male-only admissions policy was unconstitutional insofar as it violated the Fourteenth Amendment's equal protection clause. Does Virginia's creation of a women's-only academy, as a comparable program to a male-only academy, satisfy the Fourteenth Amendment's Equal Protection Clause? No. In a 7-to-1 decision, the Court held that VMI's male-only admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive justification" for VMI's gender-biased admissions policy, Virginia violated the Fourteenth Amendment's equal protection clause.
US V. Virginia
74
marriage defined at state level; ruled that DOMA violated 5th amendment; marriage deserves federal protection; challenges Defense of Marriage Act (banned same sex marriage and the legal/tax benefits that come with marriage)
A woman, who was married in Canada, spouse died and she was going to have to pay $300,000+ in taxes, and she refused to pay them when her marriage wasn’t recognized
The question: Does the executive branch’s agreement with the lower court that the act is unconstitutional deprive the Supreme Court of jurisdiction to decide the case? Does the Bipartisan Legal Advisory Group of the House of Reps have standing in the case (the Obama admin wouldn’t have lawyers defend DOMA, so the house had to hire other lawyers)? Does Doma, which defines the term “marriage” under the federal law as between one man and woman, deprive same sex couples who are legally married under state laws of their 5th amendment rights to equal protection under the law? 14th amendment applies only to the states, but the 5th amendment also applies to federal laws (so DOMA), so that’s why Windsor uses that amendment to stand on
the Supreme Court said 1) they have the right to rule 2) if the government loses the case, they stand to lose a lot of money, so they have standing 3) that DOMA goes against legislative and historical precedent and sets people apart as separate, denying them life, liberty, property granted in the 5th amendment according to the supreme court, the states define what marriage is, and when the feds do it, they are denying whole groups of people their liberty and equality (the right to marry)
US. V. Windsor
75
deals with the question of states denying the right to marry a combination of people suing from various states and saying that states have to recognize same sex marriages
says marriage is a fundamental right guaranteed under the 5th amendment (federal laws), now it is going to be guaranteed under the 14th amendment (state laws) says tradition, custom, and the courts define what are fundamental rights
says there are certain enumerated rights that exist, but sometimes extra-constitutional rights exist that the courts have to give them to you The court says the right to marry is considered fundamental to who you are as a person. Once marriage is recognized, then children in a relationship could be stigmatized if their parents aren’t allowed to be married, thus they are unequal. Marriage must be protected because it is important to society’s social order. but are those things^ enough for the supreme court to take the power to define marriage away from the state? the supreme court said yes
The dissent, written by Alito, wonders how 5 unelected judges get to decide what liberty is. This is giving too much power to the supreme court. He thinks same sex marriage should be voted on in each state. He says the history and tradition of marriage has been recognized for centuries, but marriage has been between opposite genders. Kennedy argues that tradition of marriage makes this decision reasonable, but Alito argues there is very little tradition for same-sex marriage.
Obergefell V. Hodges
76
tradition, custom, and the courts define this; may be found in the penumbras of the Constitution
unenumerated fundamental rights
77
the Supreme Court only applied this to the poor in the right to vote and access to state criminal justice system
strict scrutiny
78
caused the creation of the 14th amendment; deals with the Bill of Rights - does the Bill of Rights apply to the states? the answer in this case is no
A man is suing because he has a wharf and the city has been dredging around his wharf, preventing access to boats to his wharf. He sues under the 5th amendment imminent domain - if the government takes your property, they have to compensate you. He says the city owes him $4500
the Supreme court says the bill of rights doesn’t apply to the states (it wasn’t specified in the bill of rights that it was for the states) so John Bingham creates the 14th amendment to apply the bill of rights to the states
Barron V. Baltimore
79
nvolves liberty but also some unenumerated things like privacy, if the government threatens that, there is a process due you; what is the law about, is it too restrictive for your liberty?
substantive due process
80
Dealt with an ex-slave who had moved from a slave state to a free state. He argued that since he moved to a free area, he should be free. Can the Supreme Court here the case? yes, even though it involves slavery and non-citizens
there are two distinct areas: citizens of the state and a citizen of the United States; just because you are a citizen in the US doesn’t mean you are a citizen of a state. The man wasn’t a state or US citizen
he was property, and the states have the power to regulate property, so they don’t have to take the Bill of Rights into consideration because slaves were property; just because some states gave them liberties, doesn’t mean they get citizenship/rights nationally
so the 14th amendment said if you are born in the US you are a citizen, so the states must provide all persons with equal protections and due process
lots of people argue that if this case hadn't happen, the Civil War wouldn't have happened
Dredd Scott V. Samford
81
A man had been charged with first-degree murder. He was convicted instead of second-degree murder and sentenced to life imprisonment. The state appealed and won a new trial; this time the court found the man guilty of first-degree murder and sentenced him to death. Does the man's second conviction violate the protection against double jeopardy guaranteed by the Fifth Amendment because this protection applies to the states by virtue of the Fourteenth Amendment's due process clause? The Supreme Court upheld the man's second conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's actions for the next three decades. He noted that some Bill of Rights guarantees--such as freedom of thought and speech--are fundamental, and that the Fourteenth Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right.
Palko V. Connecticutt
82
a doctrine in constitutional law: the Fourteenth Amendment's due process clause embraces all the guarantees in the Bill of Rights and applies them to cases under state law; The doctrine has never been adopted by a majority of the U.S. Supreme Court.
total incorporation plus
83
where does imminent domain fall in the constitution? the 5th amendment; the company is saying we are getting taxed and having our property taken away. We should have rights, such as compensation for getting our property taken;
in Barron, it was a person arguing this, this is a Corporation; the SC says yes the state has to follow 5th amendment imminent domain - it started the practice of applying the 5th amendment to the 14th amendment - this is called incorporation; the court acknowledged that the city had followed this process, but what’s important is that it officially said the 5th and 14th amendment were tied together
Chicago Burlington and Quincy Railroad v. the City of Chicago
84
The Court ruled the right to bear arms as fundamental, as well as an individual’s right to self-defense. Justice Thomas argued that the right to bear arms should be part of the privileges and immunities clause.
Mcdonald V Chicago
85
part of the 5th amendment are not incorporated
the right to be indicted by a grand jury
86
these rights are considered fundamental but are unenumerated
right to privacy, travel, and vote
87
only part of the 8th amendment to be incorporated
protection against cruel and unusual punishment
88
right found in the penumbras of the constitution; This right isn’t mentioned in the constitution, yet if you look at the 1st, 4th, 5th, and 9th amendment, you see that we have rights that aren’t specifically stated; dealt with in Griswold V. Connecticut
right to privacy
89
the right to privacy has impacted these things
homosexual conduct, abortion, and marriage
90
the right to privacy existed before the bill of rights; involves an unenumerated right
shows us substantive due process, the power of precedent, and the common law tradition (judge-made law, laws from the bench); two people were convicted for talking about contraceptives to married babies and charged $100; the state wanted to protect marriage because they must protect the sanctity of marriage, and thus, childbirth - if you give contraceptives to married couples, you are defying the mission of marriage
The court said this law violated married peoples’ right to privacy; This right isn’t mentioned in the constitution, yet if you look at the 1st, 4th, 5th, and 9th amendment, you see that we have rights that aren’t specifically stated
the state better have a compelling interest to invade people’s privacy; the dissent argued that they worried too much was being read into the constitution. The 9th amendment says there are limitations on the national government, not on the states though. Gives us a right to privacy
Griswold V. Connectitcut
91
in Texas, there was a law that banned abortions except in cases of rape; a woman was trying to have an abortion. She was married at 16 to an abusive husband. She already had two kids and didn’t want another. She actually tried to claim she was raped. Question: Does your right to privacy give you the right to an abortion? Is it a fetus or a child? The state argued at conception, it is a person/baby and they had a duty to protect that life. They also said these abortion procedures were dangerous to the woman and they needed to discourage illicit sexual conduct. The woman argued that this is part of the right of privacy. We don’t know when the fetus is a person. The right to privacy extends to a woman’s right to choose. They don’t think you can have an abortion whenever. They want the balance between privacy and the state’s duty to protect the public. The court said 7-2 that marriage, contraception, and child rearing fit in the “zone of privacy”, thus people have the right to choose. Just because you have the right to privacy, though, the states do have a right to regulate abortions. According to the courts, “persons” don’t include the unborn - they aren’t trying to define when life begins
Roe V. Wade
92
the court is trying to balance the right to privacy and a compelling state interest; hey look at trimesters and when your privacy wanes and compelling state interest takes over; n the first trimester, abortion is ok, thus the Texas law sweeps too broadly, second trimester = some laws to restrict it, third trimester = can be regulated
this is a rigid standard - them going through by trimester
point of viability
93
took abortion from strict scrutiny to undue burden (a step back for pro-choice); The law involved informed consent for minors, a 24 hour waiting period with informed consent, and absent certain exceptions, married women had to get consent from their husbands, and there were reporting requirements from the facilities. The court ruled that some portions of this law were ok and some were not
Planned Parenthood V. Casey
94
what was and was not allowed in Planned Parenthood V. Casey
The court said that making a woman read material about abortion and its risk, it isn’t an undue burden; 24 hour waiting period isn’t an undue burden because that is like other medical procedures; minor notification is valid; the reporting requirements were also okayed. The court declared spousal notification an undue burden and therefore unconstitutional, saying there must be a reason a woman is having an abortion without telling her spouse - likely abuse, thus hindering her right to choose.
95
balances state interests and the woman’s right to choose; a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking abortion of a nonviable fetus
undue burden
96
stand before the decision; Roe was still affirmed, but this case says it is too rigid with the trimester regulation
stare decisis
97
the five freedoms of the 1st amendment
free speech, assembly, press, religion, petition
98
a constitutional doctrine that ensures states cannot enact laws that take away the constitutional rights of American citizens that are enshrined in the Bill of Rights.
selective incorporation
99
applied to fundamental rights and laws and policies dealing with race and national origin; based on the equal protection clause of the Fourteenth Amendment.
strict scrutiny
100
the freedom of religion, speech, press, assembly and petition
first amendment
101
right to keep and bear arms
second amendment
102
the government may not force citizens to shelter soldiers in their homes
third amendment
103
protection from unreasonable search of property
fourth amendment
104
the government may not force citizens to testify against themselves in court
fifth amendment
105
the right to a fair and speedy trial
sixth amendment
106
the right to a trial by jury
seventh amendment
107
protection from cruel and unusual punishment
eighth amendment
108
citizens may have rights that are not listed in the Constitution
ninth amendment
109
powers not given to the federal government by the constitution belong to the state or to the people
tenth amendment
110
this case overturned Bowers V. Hardwick
Lawrence V. Texas
111
a law punished insubordination in the military attempting to obstruct enlistment when it tried to hinder military operations (Espionage Act); a man was trying to obstruct the military by sending out leaflets to get people to not enlist. He was a socialist. He was convicted and Chief Justice Holmes said that free speech doesn’t protect a man who falsely yells ‘fire’ in a theater. If speech creates a clear and present danger, than the government can stop that speech. This gives the public a broad amount of free speech - it can only limit speech that creates a clear and present danger; congress has to write narrowly tailored laws
Schneck V. US
112
this law creates the Clear and Present Danger rule
Schneck V. US
113
What was the result of Yates v US? The Court recognized the distinction between advocacy and teaching of abstract doctrine. The Supreme Court began to shift from Dennis v US, and closer to the clear and present danger test of earlier decades. Fourteen leaders of the Communist Party in the state of California were tried and convicted under the Smith Act. That Act prohibited willfully and knowingly conspiring to teach and advocate the overthrow of the government by force. This case was decided in conjunction with Richmond v. United States and Schneiderman v. United States. Did the Smith Act violate the First Amendment? In a 6-to-1 decision, the Court reversed the convictions and remanded the cases to a District Court for retrial.
Yates V. US
114
involves KKK
the incitement standard was created - closer to clear and present danger; you can express what you want, but not to the point where it is inciting actual violence - up to that point, your speech is protected
Brandenburg V. Ohio
115
incorporates speech at the state level
Gitlow V. US
116
Westboro Baptist Church was protesting soldiers’ funerals. A man was burying his son and sued Westboro for liabilities for picketing his son’s funeral. He said based on state tort claims, he should be compensated for the pain he received during that funeral. Is Westboro liable?
Court said the first amendment protected Westboro, since it was protesting public issues, and thus protected
Snyder V. Phelps
117
in 1984, a man was protesting by burning the US flag, which was against Texas law.
The SC said he had the right to burn the flag because symbolic speech is protected by the first amendment. Freedom of expression cases get strict scrutiny because they are fundamental rights
Texas V. Johnson
118
after watergate, we began to see restrictions on campaign finances because of distrust of the government; The creation of the Federal Election Campaign Act and its amendment limited expenditures and hard campaign money. The court looked at contributions and expenditures separately
what you contribute to a campaign can be limited because of the fear of quid pro quo - so there is a compelling interest to limit speech (limit corruption) - if you limit what you can give, it compels more people to give, which limits quid pro quo; expenditures - what you spend - cannot be limited because there is not any quid pro quo there, so its protected
Buckley V. Valeo
119
students show up wearing black armbands protesting Vietnam and they were expelled.
The court said there are very limited situations where free expression isn’t allowed - if its advocating for illegal activity. Everything else is protected
Tinker V. Des Moines
120
The FEC said the commercials in the movie “Hillary” said you can’t show them because its the same as showing political commercials, and that can be limited because its an outside group. The corporation didn’t get why they were limited - they weren’t giving directly to a candidate and they are showing their own commercials
the FEC said they couldn’t say who to vote or not to vote for bc it ties them to a campaign
the Supreme Court threw all that out because limiting groups and their speech is a slippery slope; corporations, unions, interest groups have protected speech
Citizens' United V. FEC
121
The states must show a compelling governmental interest that can be furthered only by the law in question for their statutes to be valid. aws that adversely affected religion would only be upheld if they served a compelling state purpose
compelling state interest standard
122
created under Oregon V. Smith; the right of free exercise does not relieve a person from having to follow laws made neutrally - you have to follow valid or neutral laws no matter your religion
general applicable standard
123
compresses the Lemon test and change it; Is the establishment clause being violated when public school teachers teach students in parochial schools? No, because the Lemon test is changed to whether the aid indoctrinates religion and if it defines the recipients by religion, then it is not allowed.
Agostini V. Felton
124
when can religious items be displayed?
only in a historical context; context and purpose of display matter
125
involved money going to schools from governments. Does the money have a secular purpose? Does the aid advance or inhibit a religion? Does the money not foster an excessive government entanglement with religion?
the Lemon Test
126
SC said school prayer indoctrinated people, and thus wasn’t allowed
Engel V. Vitale
127
students on their own selected who prayed and what prayer was said, but the SC said it still wasn’t allowed
Santa Fe ISD case
128
true or false: religion has become more accommodating in the last 15 years
true
129
what is the only requirement to be a federal judge?
good behavior
130
discusses the power of judicial review. It argues that the federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency. Hamilton viewed this as a protection against abuse of power by Congress.
Federalist 78
131
1) The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such questions "is legitimate only in the last resort, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act."
2) The Court will not "anticipate a question of constitutional law in advance of the necessity of deciding it." "It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case."
3) The Court will not "formulate a rule of constitutional law broader than is required by the Precise facts to which it is to be applied."
4) The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter. Appeals from the highest court of a state challenging its decision of a question under the Federal Constitution are frequently dismissed because the judgment can be sustained on an independent state ground.
5) The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. Among the many applications of this rule, none is more striking than the denial of the right to challenge to one who lacks a personal or property right. (While not mentioned in Ashwander, there are exceptions in the case of a First Amendment challenge where the party may raise the effect of a law on other person's First Amendment rights, the so called "chilling effect" doctrine.)
6) The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.
7) "When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided."
Ashwander Rules
132
this case sets up judicial review
Marbury V. Madison
133
Who sets the number of SC justices?
Congress
134
Who is the current SC chief justice?
John Roberts
