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| the power to review acts of government to determine their compatibility with the Constitution. |
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| What case established the principle of judicial review? |
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| A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy |
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| some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental in a free society and consequently are entitled to more judicial protection than other constitutional values |
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| used to establish whether there is a compelling need that justifies the law being enacted; The standard used to determine whether a classification of a group of persons (such as a racial group) or a fundamental right (such as the right to vote) violates due process and equal protection rights under the United States Constitution |
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| power to declare the law, and when it ceases to exist, the only funciton remaining to the court is that of announcing the fact and dismissing the case. |
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| To be more fully informed. A writ issued at the discretion of an appellate court directing a lower court to certify and deliver the record of a case that is not appealable as of right to the appellate court for possible review |
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| use of the text of the Constitution as the basis for predicting the outcome of constitutional cases or the text of federal statutes to predict the outcome of cases that hinged on questions of statutory interpretation |
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| judicial decisions can, in at least some circumstances, be explained and predicted by the attitudes or political ideologies of judges |
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| seperation of powers model |
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| The division of state and federal government into three independent branches |
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| The belief that the U.S. Constitution should be interpreted according to the intent of those who composed and adopted it |
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| A judicial decision that may be used as a standard in subsequent similar cases |
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| To what level of government did the framers intend the Bill of Rights to apply? |
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| to protect the people against abusive actions of the federal government, NOT the states |
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| the process whereby provision of the Bill of Rights are declared to be included in the due process guarantee of the 14th amndment and made applicable to state and local governments. |
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| What constitutional amendment was the key development in incorporation? When did it occur? |
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| current approach of incorporation |
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| the Court has incorporated and made applicable to the states almost every guarantee contained in the Bill of Rights |
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| What amendments, or parts of amendments, have not been incorporated? |
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| How are rights protected if they are not incorporated? |
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| Through state and local legislation |
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| What are the main theories of incorporation |
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| 1) protected through the due process of the 14th amendment 2) fundamental and inalienable rights 3) will not incorporate entire Bill of Rights, but will consider individually when needed |
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| What are the strengths and weaknesses of each incorporation approach? Who are the major proponents of each approach? |
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| Why do we allow the states to have varying levels of protection of civil liberties and civil rights? |
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| What are the two parts to the First Amendment that deal with religion? |
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| 1) respecting the establishment of religion 2) prohibiting the exercise thereof |
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| What is the Belief-Action distinction? |
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| the center-piece of many freedom of religion cases, that distinquishes that one may believe what he/she wants, but certain actions are prohibited. |
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| many believed it was used to simply outlaw unpopular religious practices. |
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| What standard did the Warren Court espouse in Sherbet? |
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| compelling interest standard: when government enacts a law that burdens the free exercise of religion it must show that it is protecting a compelling government interest and doing it in the least restrictive manner possible. |
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| What standard did the Burger court espouse in Yoder |
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| continuation of Sherbert ??? |
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| Did they eliminate the Belief-Action distinction? |
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Definition
| aside from Congress attempts to continue utilizing Sherbert-Yoder standards (Belief-Action). the Court adopted the Smith interpretation which states that the free exercise clause does not relieve an individual from the obligation to comply with law of general applicablility |
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| What is the Religious Freedom Restoration Act? |
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| expands protection of religious exercise by restricting the use of gov't authority to regulate it |
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Term
| What position did the Court enunciate in Boerne v. Flores? |
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| while staying true to the Smith interpretation, this case left open the possibiity that Congress might use another constitutional provision to accomplish its goals; continuation of allowing RFRA to apply to the federal gov't |
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Term
| What was the ruling in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal? |
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| The court upheld RFRA because it was U.S. Customs agents (under fed gov't) |
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| What are the various positions on the establishment clause? |
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| 1) separation beween chruch and state, prohibiting most, if not all, forms of public aid for or support of religion. (separationist) 2) along with separation of church/state, nondiscriminatory support or aid for all religions is constitutionally permissible (accommodationist) 3) simply prohibits the establishment of an official national religion (accommodationist) |
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| What position of Religious Establishment did the framers take? |
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| Accommodationist for the most part, but they were all NOT on one accord. |
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| What is the position of Justice Black in accordance to Relgious Establishment? |
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Definition
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| Why does Justice Black argue that a “wall of separation” protects religion? |
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| What is the standard enunciated by Chief Justice Burger in Lemon? |
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| The Lemon Test... which stated that 1) the statue must have secular legislative purpose 2) its primary effect must be one that neither advances nor inhibits religion 3) must not foster an excessive gov't entanglement with religion |
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| Why is Freedom of Speech a preferred freedom |
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Definition
| b/c it is most central to our sytem of liberty and deserves special status and protection. |
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| Are there conflicts between free speech and other goals and values? If so, how does the court resolve theses conflicts? |
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| Clear and present danger. Also, the Bad Tendency Test which emphasizes the defendants' intentions and the tendency of the expression to cause illegal actions |
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| What is the Black-Douglas approach to Freedom of Speech? What are the problems with this approach? |
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| Absolutism... the 1st Amend. was designed to "preclude courts as well as legislatures from weighing values of speech against silence". Problems??? |
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| What was the standard in Abrams and Gitlow? |
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| What was the standard in Schenck? |
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| What standard was used in Brandenburg? |
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| to allow for more expression and cutback on the long series of repressive expression rulings. |
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| What is the meaning of imminent danger? |
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