Con 2

  1. What did the slaughter house cases limit
    the prvlidges and immunities clause: very few rights of being "US Citizen" exclusively, most rights come from state citzenship.
  2. What does the 14th amendment tell us?
    All persons buron or naturalized in US are citizens. Privlidges and immunities, due process, equal protection. Bill of rights on states.
  3. what is the lochner era?
    An era where the court held the right to contract as a fundemental right, and decided that it trumps the state's police power to protect workers
  4. What is substantive due process?
    An extention of the due process clause of the 14th amendment that the court uses to prevent infringement of fundemental rights by the government.
  5. What did Carolene products add to Substantive due process?
    Dawn of modern Substantive due process, said that ordinary economic legislation is entitled to a presumption of constitutionality and is given a rational basis test.
  6. What is the rational basis test?
    The action must be rationally related to a legitimate government interest. (any state of facts known or reasonably assumed that affords support for the law)
  7. What is strict scrutiny?
    Compelling government interest, narrowly tailored and least restrictive means
  8. What is intermediate scrutiny
    substantially related to an important government interest
  9. What are the three carolene products catergories of regulations demanding higher scrutiny?
    On it's face violations, restriction of politcal process, legislation against insular minorities.
  10. What draws strict scrutiny?
    substantial impairment of a fundemental right. If the law is aimed at a fundemental right, then it's a substantial impairment.
  11. What's the Due process flow chart?
    • Is it a fundemental right? No? Rational Basis, Yes, go on
    • Is the right being substantialy impaired? No? Rational Basis, Yes? Go on
    • Is there a compelling interest to justify the impairment? No? Due process violation, Yes? Go on.

    Is it narrowly tailored? No? DP violation. Yes, No DP violation.
  12. What creates a fundemental right (non textual)?
    Is it implicit in the concept of ordered liberty? Is it deeply rooted in our nation's history and traditions.
  13. What are the procreative fundemental rights?
    Right to contraception, right to abortion.
  14. What is the major contraceptives case?
    Griswold v. Connecticut.
  15. What is the major marriage fundemental right case?
    Loving v. Virginia
  16. What are the primary unenumerated fundemental rights?
    the right to interstate travelthe right votethe right to privacy (which includes within it a set of rights) including;a. the right to marriageb. the right to procreationc. the right to an abortiond. the right to private education (Homeschooling ones children)e. the right to contraception (the right to use contraceptive devices)f. the right of family relations (the right of related persons to live togethe
  17. What does Glucksberg v. Washington stand for?
    No right to suicide, but right to refuse life saving treatment.
  18. Explain the difference between Bowers v. hardwick and Lawerence v. texas
    In bowers, the court defined the right being challenged as the right to sodomize, which is not fundemental so it got rational basis. In Lawrence, the court described the right as the right to intimate association, said there was no legitimate state interest in preventing them.
  19. What is the additional standard added to an analysis of the fundemental right of abortion?
    The Undeu burden standard. Does the restriction place an undue burden on the right to have an abortion, rather than substantial impairment. Can't place a substantial obstacle in the path of a woman seeking to abort a non-viable fetus.,
  20. What are the two interests govermnent can use to regulate abortion
    Protect the health of the mother, protect potential or prenatal life
  21. What are the rules for pre and post viability?
    Pre viability, state may only regulate for mother's health and encouraging childbirth, while post viabilty, they can regulate to protect prenatal life and ban completely.
  22. When did roe decide viability occured?
    after 1st trimester
  23. When can you ban late term abortions?
    only when there is a health exception.
  24. Must the state fund abortion?
    No, they are under no obligation to either fund abortion clinics nor provide facilities to get abortions.
  25. are abortion informed consent requirements allowed?
    Yes, so long as they inform the woman'ds decision, are truthful and non-misleading, even if they encourage childbirth.
  26. Do waiting periods constitute undue burdens?
    Not if they are reasonable (24 hours or less)
  27. What are the spousal and parental notification requirements in abortions?
    Spouse notification is undue burden. Parental is not if they allow a judicial bypass that the minor can make the decision and it's in their best interest.
  28. What are the catergories of equal protection
    • Strict scrutiny: Fundemental rights, race, national origin, alienage
    • Intermediate scrutiny: Gender or illegitimacy
    • Rational basis: any other catergory
  29. What is the Equal protection test (very long)
    • Does
    • the law classify persons?

    • • If
    • yes, go to Question 2

    • • If
    • no, go to due process analysis

    • 2. Is
    • the purpose of the law to discriminate based upon the class and
    • does it have a discriminatory impact upon the class?

    • • If
    • yes to both, go to Question 3

    • • If
    • no to one or both, go to due process model

    • 3. Is
    • the classification based on race, national origin, or (state) alien
    • status?

    • • If
    • yes, then:

    • – 3a:
    • Does the government have a compelling interest to justify the
    • classification?

    • • If
    • no, then classification violates equal protection

    • • If
    • yes, then go to Question 3b

    • – 3b:
    • Is the classification necessary or narrowly tailored to meet the
    • government’s compelling interest?

    • • If
    • no, then classification violates equal protection

    • • If
    • yes, then no equal protection violation

    • • If
    • no, then go to Question 4

    • 4. Is
    • the classification based on gender or illegitimacy?

    • • If
    • yes, then:

    • – 4a:
    • Does the government have an important interest to justify the
    • classification?

    • • If
    • no, then classification violates equal protection

    • • If
    • yes, then go to Question 4b

    • – 4b:
    • Is the classification substantially related to the government’s
    • important interest?

    • • If
    • no, then classification violates equal protection

    • • If
    • yes, then no equal protection violation

    • • If
    • no, then go to Question 5

    • 5. Does
    • a non-suspect classification impair the exercise of a fundamental right?

    • • Use
    • modified due process model to answer

    • – 5a:
    • Is it a fundamental right?

    • • If
    • no, classification is judged using rational basis test

    • • If
    • yes, go to Question 5b

    • – 5b:
    • Does the classification substantially impair the exercise of the right?

    • • If
    • no, classification is judged using rational basis test

    • • If
    • yes, go to Question 5c

    • – 5c:
    • Does the government have a compelling interest to justify the
    • classification?

    • • If
    • no, then equal protection violation

    • • If
    • yes, then go to Question 5d

    • – 5d:
    • Is the classification necessary or narrowly tailored to meet that
    • compelling interest?

    • • If
    • no, then equal protection violation

    • • If
    • yes, then no equal protection violation
  30. What are the three kinds of discrimination in laws
    • Facial discrimination
    • Facially neutral but discriminatory impact (height requirements for police officers effect more women)
    • Facially neutral but discriminatory application(Yick Wo)
  31. What is the procedural due process test?
    • Is there a liberty or property interest?
    • Has there been a depravation of that interest?
    • What process is due(what will meet constitutional requirements)
  32. What are teh tests to detemrine a protected property interest?
    • Current: has governement created an entitlement to property interest.
    • Alternative: Is the liberty of property interest important to recipient?
  33. What is the procedural due process model?
    • 1. Is
    • there a life, liberty, or property interest?

    • a. No
    • – Then no procedural due process limitations

    • b. Yes
    • – Go to Question #2

    • i. Property
    • interests (entitlements) typically created by state or federal law, nothing in
    • the Constitution provides this. Roth. Created by statute and it won’t remove
    • unless for proper cause. They can also
    • create by express or implied policy.
    • Custom or practice can also create a property interest Vitek. On this case, they agreed on the grounds that
    • a policy existed of not transferring prisoners without a review process.

    • ii. Defeating
    • an entitlement can be done through employment at will provisions

    • 2. Has
    • there been a deprivation of that interest?

    • a. No
    • – The no procedural due process required

    • b. Yes
    • – Go to Question #3

    • 3. What
    • type of process is required?

    • a. Pre-
    • or post-deprivation process?

    • i. General
    • rule - Some form of pre-deprivation process needed

    • ii. Post-deprivation
    • – Appeal will take on a more for formal process, with a hearing and a judge
    • likely.

    b. Notice

    Formality of process

    • i. Full
    • evidentiary hearing versus something less

    • ii. As
    • a general rule, pre-deprivation
    • requirement can be limited to notification, with no pre-hearing

    • 1. Exception
    • is Roth, the Court has never overturned it.

    • iii. Post-deprivation
    • procedure could involve an appeal process, typically an informal hearing. This process will be determined based on the
    • pre-deprivation process and vice versa.

    c. Hearing

    Three-part Mathews v Eldridge balancing test

    • i. Nature
    • of the individual Interest – How significant is it, what impact would the
    • deprivation have?

    • ii. Risk
    • of deprivation – Are the procedures in place enough to prevent an erroneous
    • deprivation is wrong? What will result
    • in the future if a procedure is imposed?

    • iii. Nature
    • of state interest – What kind of financial or administrative burden will fall
    • on the state if additional procedural requirements will be needed? Standard defenses would be can’t afford, not
    • enough resources to accomplish

    • iv. In
    • Mathews, the court said it must be deferential to good faith decisions
    • of the government officer are adequate to establish a good enough due process.
  34. To make a prima facie case for equal protection violation, you must show?
    The law classifies people, it has a disperate impact on that class, the purpose or intent of hte las was to cause that disparate impact, it involves a suspect class, quasi-suspect class, or a fundemental right.
  35. What does discriminatory purpose mean
    It means the lawmaker acted because of, rather than in spite of, the discriminatory purpose.
  36. What are the five kinds of voting right discrimination?
    Selective denial of voting rights (strict scrutiny if not on residence, age, citizenship), individual vote dillution (only allowed if for compactness and contiguity and respecting municipal borders, de minimis for state and local, no deviation for federal)) , group vote dilution (gerrymandering) (courts now allow it) Majority minority districting (if race based, strict scrutiny), vote counting.
  37. Explain affirmative action
    • Schools: no remedial limit, diversity is a compelling interest
    • Others: Only remedial, must remedy effects of past racial discrimination by that particular instituion.
  38. What is the political functions exception?
    In alienage cases, states can discriminate to determine who is a member of their political community. Can prevent aliens from holding certain positions.
  39. What is the false classification dilemma?
    Just because all people in one group will inevitably be part of a suspect or quasi suspect group (all pregnant people are women) doesn't mean that the regulation against that small group is suspect or quasi suspect.
  40. What do you do when a group is claiming quasi-suspect status
    Use the factors from Cleburne, are they discreet or insular, politically powerless?
  41. What is the dividing line on freedom of speech?
    • Content based: Viewpoints and subject matter. strict scrutiny
    • Content neutral: Intermediate scrutiny.
  42. What are the catergories of unprotected speech?
    • Inciting illegal activity
    • Fighting words
    • Obscenity
    • Child pornography
    • Defamation
  43. What catergories of speech can the government regulate
    • Commercial speech (intermediate)
    • Speech at schools, prisons, and military instillataions? (rational basis)
    • Traditional broadcast media( only for indecency)
    • Other non-public and limitied designated public forms (must be reasonable/viewpoint neutral.)
  44. What may the government regulate in terms of protected speech?
    Either conduct (does not target expression, incidental burden on speech no greater than essential, intermediate scrutiny) or time, place, or manner (intermediate scrutiny)
  45. What kinds of speech has special rules
    Subsizides speech and government as speaker.
  46. What is inciting illegal actrivity?
    Speech intended to have the effect of producing imminnent illegal action and likely to produce that action, or speech that creates a clear and present danger of riots.
  47. what is the obscenity test?
    Average person applying contempary community standards would say it appeals to purient interests, work depicts patently offensively sesxual conduct, work lacks serious literary, artistic, political, or scientific value. Miller Test
  48. Fighting words?
    Words that inflict injury or promite immediate breach of the peace
  49. What is the speech concern with vagueness?
    It gives insufficent notice and may have a chilling effect on free speech.
  50. Explain symbolic speech
    Speaker intends to use his actions to convey his message. The government can regulate i fthey can articulate a sufficent non-speach interest to justify the incidental burden on expression
  51. What is the o'brien test for stoping symbolic speech
    • It's within the constitional power of the government, it furthers an importrant or substantil government itnerest,
    • the govern interest is unrelated to the supression of expression,
    • any incidental restriction is no greater than essential to further the government interest
  52. What's the time place manner test?
    Must advant a singificant government interest, must be content neutral, must be narrowly tailored, and it must leave ample altneriatve channels for communication. (look at purpose and effect.)
  53. What is the commercial speech test?
    Speech must concern a lawful activity and not be misleading, government must have a substantial interest, regulation must directly advance government interest, regulation cannot be more extensive than necessary to serve government interest.
  54. What are the two kinds of prior restraints
    • A license or permit required to speak
    • a court order forbidding speech under penalty or contempt.
  55. What is the collateral bar rule?
    • Must obey a court order until it is
    • lifted, expires, or dissolved

    • • Cannot disobey just because
    • you this it is unconstitutional

    • • Violation of the
    • order also forfeits the right to challenge the underlying conclusion of the
    • Court
  56. What are the three requirements for a license to be valid?
    Government must have an important reason for the license or permit

    The standards for granting or denying must be clear and afford no discrestion

    There must be procedural safegards in place (prompt decision with judicial review)
  57. Is the press clause a shield or a sword?
    It is neither, it can't be used to prevent testimony or to gain access to information the general public does not have.
  58. What are the types of speech forums?
    • Traditional speach forms (roads sidewalks, parks, government has affirmative duty to keep open.)
    • Non public forums: No right, must merely be reasonable and viewpoint neutral.
    • Designated forum: government takes voluntary, affirmative steps to open an otherwise non-public to public, either unlimited, or limited to specific material.
  59. When can the government regulate student speech?
    Whenit's profane, indecent or explicit, it disrupts school activities, or is associated with school-sponsored activities.
  60. What are the three kinds of freedom of association?
    • 1. Freedom
    • not to speak or support ideas

    • 2. Freedom
    • of association in employment

    • 3. Impact
    • of anti-discrimination of freedom to associate
  61. What is the pickering balancing test in employment association cases?
    The employee and public interest in speech vs the employer interest in running an effective and efficient office.
  62. What is the lemon test?
    • Purpose test: must have legitimate, non sham secular purpose
    • Effects test: cannot have effect of advancing or inhibiting religion
    • Excessive entanglement: cannot have excessive entanglement between state and religion. Procedural and substantive.
  63. What is the endorsement test?
    • Purpose prong: Speech and act is looked at from speaker and viewer perspective, is the purpose to advance religion from either view?
    • REasonable observer prong: Would a reasonable observer understand that the purpose is to advance or disapprove religion?
  64. What is the cocersion test?
    • Majority: Coercision is brought out by peer pressure as a result of a measure or law
    • Minority: No coercision unless a threat of imprisonment.
  65. What are the two issues with aid to religion
    • Private choice doctrine: Is the government aid being supplied directly ro relgion or by a private choiec (school vouchers)
    • Indoctrination question: If aid goes to religion without pricate choice, is the government engaged in relgious indoctrination?
  66. What are the two tests for the free exercise clause?
    • Lukumi test: If law targets religious exercfise, strict scrutiny
    • Smith test: If law is religiously neutral and genrerally applicalbe, allwed even if free exercise impaired.
  67. What happens in a conlifct between religious clauses?
    If it applies to all? rational basis, if it applies to particular religions? Strict scrutiny.
Card Set
Con 2
Old Accent Man