Term
| What rights does the Privileges and immunities clause of Article 4 give? |
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Definition
| Rights as a state citizen. Interstate, prevents states from discriminating against out of state individuals. |
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Term
| What are some other details about Article 4 P/I? |
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Definition
Corporations and aliens not protected.
Congress cannot waive the right.
Only Fundamental rights are protected.
No market participation exception for the states. |
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Term
| What is the test for P/I, Article 4? |
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Definition
A state cannot discriminate between out of state citizens and residents unless:
(a) the discrimination is closely related to a substantial state purpose and
(b) less restrictive means to accomplish this purpose are not feasible. (Piper Case). |
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Term
| What rights are given by the 14th amendment P/I? |
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Definition
Very little, per Slaughter-house cases.
It pertains to rights as a national citizen. |
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Term
| What things can a state discriminate against under P/I? |
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Definition
In-state tuition.
Filing for divorce. |
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Term
| What is the main right concerning P/I? |
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Definition
Right to travel:
(a) - enter and leave a state per Edwards and Crandall cases
(b) - visit a state and be treated with welcome Article 4.
(c) - become permanent residents and be treated like other citizens - 14th amendment. |
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Term
| What are the Procedural Due Process constitution texts? |
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Definition
5th amendment - federal government cannot deprive of life, liberty or property without due process of law.
14th amendment - applies to state action. |
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Term
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Definition
(1) Notice: prior or post - with a statement of reasons.
(2) Informal chance to talk.
(3) Evidentiary hearing - present evidence, cross examine gov't evidence, nature of decision maker, appeal (written or unwritten). |
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Term
| How does the court treat welfare rights? |
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Definition
| like property rights, you get a lot of process (evidentiary hearing) - Goldberg v. Kelly. |
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Term
| What about employment due process? |
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Definition
| Roth and Perry cases. Roth case, professor wants hearing before fired, but only has 1 year contract, not tenured - no due process required. Perry case - not-tenured, but had an unwritten understanding of rights, and faculty manual has evidence. |
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Term
| Is there a property right to requirements of law enforcement officers? |
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Definition
| No. Even with a restraining order. Police have to use their own discretion. Town of Castle Rock v. Gonzales. |
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Term
| What liberty rights does a person have? |
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Definition
| right to worship, education, marry, get a job, read very broadly from the Roth Case. |
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Term
| Is there a liberty interest in your reputation? |
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Definition
| No, unless something else is being taken away. Must have Stigma plus. Not just a name on a list, but taking away a right to travel or buy alcohol. Shoplifter posting case. |
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Term
| How much due process do you get? |
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Definition
First, you must have shown a valid life, liberty or property issue.
Weigh three things with this subjective and unpredictable test.
(1) individual interest at stake.
(2) government's interest.
(3) how much process has already been given and what is the likely value of giving more process? |
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Term
| What type of incorporation is used today? |
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Definition
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Term
| What is the selective incorporation test? |
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Definition
(1) is the right essential to a system of ordered liberty?
(2) is this right deeply suited in our traditions and conscience to be fundamental?
(3) Can we imagine a justice system without this? |
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Term
| What does incorporation mean? |
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Definition
The law applies exactly to the states and the federal gov't the same.
Exceptions - number of jurors, and at the state level, the jury does not have to be unanimous. |
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Term
| What bill of rights have been incorporated? |
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Definition
Nearly all of the bill of rights, except:
(a) 2nd amendment, currently being litigated,
(b) 3rd amendment, never reached the court,
(c) 5th has been incorporated, except indictment of a Grand Jury clause,
(d) 7th has not been incorporated,
(e) 8th - the excessive bail provision has never reached the supreme court. |
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Term
| What is substantive due process? |
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Definition
| Unenumerated rights that cannot be violated or restricted by the states. |
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Term
| What did the Lochner case involve? |
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Definition
| The economic right to contract. The court overturned the state law, giving it very little deference, and great skepticism. |
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Term
| What case caused a turnaround in Lochner? |
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Definition
| Nebbia v. New York. Between Lochner and Nebbia about 200 state laws had been overturned. |
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Term
| What is the test from US v. Carolene Products to determine if a state law is valid? |
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Definition
(1) courts take the presumption that the legislation is rational.
(2) you have to prove that there are no facts that could conceivably justify this law in order to overturn the law. |
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Term
| Where did the right to privacy originate? |
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Definition
| Griswold case where the court said there is a right to privacy based in the bill of rights that makes laws restricting contraception unconstitutional. |
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Term
| What did Roe v. Wade introduce about the privacy right? |
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Definition
| The right to privacy is based on the 14th amendment, and fundamental rights are strongly protected, while other protected rights get rational basis. |
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Term
| What test was used in Roe v. Wade? |
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Definition
Strict Scrutiny:
(1) a compelling government interest and
(2) the means of the government are narrowly tailored. |
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Term
| How did Roe v. Wade analyze abortion? |
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Definition
An analysis between the rights of the unborn fetus and the mother.
The Court said that the state gets an interest in the unborn child at Viability (where the fetus can live on its own). So 1st trimester, woman absolute right to abortion, 3rd trimester, the state can ban abortion. 2nd trimester blurry. |
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Term
| What new framework to abortion, does Casey Add? |
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Definition
(1) Abortion is no longer a fundamental right, so no strict scrutiny.
(2) Government cannot pose an undue burden on woman's ability to obtain an abortion.
(3) undue burden test - if the purpose of the law is to place a "substantial obstacle" in the path of a woman seeking an abortion before the fetus attains viability, then it is invalid.
Post viability, abortion can be banned, but have to have a health/life exception. Pre-viability, the state can do anything except place a substantial obstacle. |
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Term
| Is partial birth abortion banned? |
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Definition
| Yes. D&X made illegal by statute. The court upheld the statute. The court uses rational basis test. |
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Term
| What about sodomy laws against sodomy between the same gender? |
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Definition
| Lawrence v. Texas made these laws unconstitutional. The court stated that this violates the right to privacy, with an unclear standard of review. |
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Term
| What areas does an individual have fundamental rights? |
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Definition
| 1. Interracial marriage. 2. Right to get married even if not paying court ordered child support. 3. Right to get married to another inmate without the warden's approval. 4. right to maintain custody of your children. 5. right of a custodial parent to decide if grandparents or others have visitation rights. 6. the ability of extended family to live together (zoning laws can prohibit non-family members). 7. public education is not a fundamental right. 8. voting is a fundamental right, but states can remove this right for convicted felons. |
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Term
| What is the general rule for fundamental rights? |
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Definition
apply strict scrutiny.
Casey uses undue burden test.
Sodomy cases are unknown whether strict scrutiny or rational basis. |
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Term
| What is the constitutional basis for equal protection? |
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Definition
| 14th amendment, bowling case held that the 5th amendment due process includes 14th amendment equal protection. |
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Term
| What are the steps for analyzing an equal protection claim? |
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Definition
1. identify the classification. (a) facial, (b) non-facial.
2. figure out the level of scrutiny.
3. apply the standard of review. |
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Term
| What are the levels of scrutiny? |
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Definition
1. rational basis review.
2. intermediate scrutiny.
3. strict scrutiny. |
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Term
| What classifications use rational basis review? |
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Definition
| economic means, social standing, and geographic standing classifications. |
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Term
| What classifications use intermediate scrutiny? |
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Definition
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Term
| What classifications use strict scrutiny? |
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Definition
| Race/Ethnicity/National Origin, and distinguishing among people, only allowing some to exercise a fundamental right (Lawrence). |
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Term
| What is the test and burden of proof for rational basis? |
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Definition
Goals: Legitimate state or government interest.
Means: Rationally related to achieving the goal.
Burden: Plaintiff. |
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Term
| What is the test and burden of proof for intermediate scrutiny? |
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Definition
Goals: Important state or government interest.
Means: Substantially related to achieving the goal.
Burden: Government. |
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Term
| What is the test and burden of proof for strict scrutiny? |
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Definition
Goals: Compelling state or government interest.
Means: Narrowly tailored to achieving the goal.
Burden: Government. |
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Term
| What are over and under inclusiveness? |
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Definition
overinclusive - covers more than it should.
underinclusive - covers less than it should. |
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Term
| What is another way of saying the rational basis test? |
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Definition
| we must uphold a law if there is any reasonably conceivable set of facts that could provide a rational basis for the classification. |
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Term
| What have been suspect classifications? |
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Definition
Segregation - struck down in Brown v. Board.
Affirmative action - have to aim at broad diversity but prior history of discrimination can be a factor. School district case.
Sex classifications - seems to be in flux. |
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Term
| How are various fundamental rights classified? |
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Definition
1. Rational Basis - Age, income or poverty, legally resident aliens - US Gov't only.
2. Intermediate Scrutiny - Children born out of wedlock.
3. Strict Scrutiny - legally resident aliens (state only, however for voting or public positions of trust, no strict scrutiny). |
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Term
| Other things that are in flux and may be fundamental rights? |
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Definition
Mental retardation - rational basis review with bite (or teeth). Cleburne.
Sexual orientation - in flux with a focus at the state level. Colorado case. |
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Term
| What ways can a law be discriminatory against a classification? |
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Definition
1. Facially. (if it is, apply standard)
2. Facially neutral, yet discrimination as applied. Yick Wo - no chinese got laundry permits.
3. Facially neutral, yet discriminatory purpose. |
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Term
| What is the burden shifting test? |
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Definition
1. the plaintiff has to make a prima fascia case of discriminatory purpose (have to have enough evidence that would enable a person to conclude that there was discriminatory purpose.)
2. then the defendant gets to try to show that they would have done the same thing even absent the alleged discriminatory purpose.
3. if the defendant shows they would have done the same thing anyway, case over.
4. if the defendant cannot show they would have done the same thing anyway, then the court applies the test based on classification. |
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Term
| How is a prima fascia case of discriminatory purpose shown? |
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Definition
1. historical background.
2. sequence of events leading up to decision.
3. procedural regularity.
4. legislature statements.
Note - the plaintiff does not have to show that an intent to discriminate was the only reason, just a motivating factor.
Note - it is not enough to know that a law would favor a particular group. |
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Term
| What if a law distinguishes between people trying to exercise a fundamental right? |
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Definition
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Term
| What is the 2nd amendment rule? |
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Definition
| all people have a right to possess an operable weapon of the kind that would be used in a militia to be used in cases of confrontation, subject to a few exceptions, like felons, mentally ill, and possession at schools, government facilities, etc. Heller case. |
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Term
| What are the unprotected forms of speech that allow a total ban? |
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Definition
1. "fighting words"
2. true threats, or threats with violent illegal act, with perceived intent.
3. libel - saying or publishing something false that can damage reputation.
4. Incitement to violence.
5. Obscenity. |
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Term
| What are the tests for incitement to violence? |
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Definition
Old Schenck test - government can restrict speech if the speech presents a clear and present danger of an unlawful activity.
Brandenburg: when your speech is intended to and is likely to produce imminent lawless action, it is unconstitutional. (key words, intent and imminent.) |
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Term
| What are the tests for obscenity? |
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Definition
(1) Whether the average person taking contemporary community (community where jurors are drawn from) standards would find that the work appeals to the prurient interest (sexually arousing, produce lustful thoughts.)
(2) Whether the work depicts or describes something that is patently offensive way. (again using the community standards, examples include representations of sexual acts, normal or perverted.)
(3) Whether it lacks serious literary, artistic, political, or scientific value (national/uniform analysis) - SLAP.
Miller Case - sending book ads to non-consenters. |
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Term
| How is child pornography handled? |
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Definition
the miller test is relaxed, not all 3 parts of the test are applied.
Obscene speech can be banned entirely, so there is no right to buy it, but under privacy due process, you do have a right to possess it in your home. |
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Term
| What about speech against government actions? |
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Definition
If speech is on a matter of public concern, by someone speaking as a citizen then you get the Pickering test. If you speak pursuant to your job duties, you get no protection from discipline.
Pickering balancing test: Weigh the employee's interest, the employer's (gov't) interest, and the public's interest.
Balancing test is pro employee.
Without balancing test, pro employer. |
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Term
| What is a matter of public concern? |
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Definition
| a subject of legitimate news interest. |
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Term
| What areas of speech get less protection? |
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Definition
1. Commercial speech.
2. Nude dancing or non-obscene sexual speech.
3. sexual speech or innuendos in schools (K-12).
4. Profanity and indecency on broadcast TV and radio (patently offensive references to excretory or sexual functions.) |
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Term
| What is commercial speech? |
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Definition
| No clear definition, but some are obvious like advertising. One court said commercial speech is speech related solely to the economic interests of the speaker and its audience. |
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Term
| What is the test for commercial speech? |
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Definition
4 parts, gov't has burden, not strict scrutiny or rational basis. Central Hudson Gas case, virtually strikes down all laws.
1. Is the commercial speech misleading or concerning unlawful activity (unprotected if true.).
2. Is there a substantial gov't interest.
3. Regulation has to directly advance the substantial gov't interest.
4. Regulation cannot be more extensive than necessary to advance the substantial gov't interest. (largely about overinclusiveness). |
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Term
| What is the test for speech that is not fully protected speech? |
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Definition
1. ask if is speech per the Johnson test?
2. if it is, is the speech wholly proscribable (totally banned - Y/N)?
2a. if it is, is a content distinction being made?
2a1. if no, content distinction, law ok.
2a2. if yes, then the law must pass strict scrutiny or meet the RAV exceptions.
3. If the law is not totally banned, is it commercial speech?
3a. if it is commercial speech, apply hudson gas test, if it passes, law fine, if not, not fine.
3b. if the law is not commercial speech, it is fully protected speech.
4. if needed, ask if the law is overbroad or vague. |
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Term
| What are the RAV exceptions? |
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Definition
1. we can ban the worst of the worst.
2. can be banned if a subset is tied to secondary effects and the gov't doesn't want those bad things to happen.
3. gov't wants to ban a piece of something, if there is no realistic possibility that the gov't is attacking speech because of its content. |
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Term
| What is the Johnson expressive speech test? |
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Definition
(1) Whether there is an intent to convey a particularized message and
(2) Whether the likelihood was great that the message would be understood by those who viewed it. |
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Term
| What is the test for fully protected speech? |
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Definition
1. Is the speech content based or content neutral?
1a. Content based
1a1. is the speech occurring on gov't owned property?
1a1a. If no, the law is invalid unless it passes strict scrutiny.
1a1b. If yes, what kind of forum is it?
1a1b1. If it is a public forum, the law is invalid unless strict scrutiny.
1a1b2. If it is a non-public forum, then we want to know if the law is reasonable and viewpoint neutral.
1a1b3. If it is a limited public forum, do both analysis (non-public and public.)
1b. Content neutral
1b1. Is it valid under O'brien test questions (2 more steps)
1b1a. if it fails, then it is not valid T/P/M, it will fail.
1b1b. if it passes, ask if it is occurring in a public forum.
1b1b1. if it is in a public forum, there you have to ask if there are ample avenues of communication.
2. then ask if the law is overbroad or vague. |
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Term
| What are the 2 other O'Brien questions? |
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Definition
1. if the regulation furthers an important or substantial government interest. (like intermediate scrutiny).
2. Is the means substantially broader than necessary to achieve the interest. |
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Term
| What does content based mean? |
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Definition
| The interest has to do with the content of what is being said. |
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Term
| What does content neutral mean? |
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Definition
| You don't need to know what was said. |
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Term
| What is a non-public forum, and what are the tests involved? |
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Definition
Government property with no tradition of public speech, like: oval office, inside prisons or military bases, Petty's office, airports.
Tests: Gov't can completely ban speech.
Or if less restrictive, has to be reasonable and viewpoint neutral. |
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Term
| What does viewpoint neutral mean? |
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Definition
| subject matter portion of content based speech, but not based on viewpoint. (subject matter would be death penalty, subset would be those against the death penalty.) |
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Term
| What is a limited public forum (or designated)? |
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Definition
Gov't owned that could be non-public, but has been intentionally opened up to allow speech, like bulletin boards, or school facilities after hours.
Tests - identical to public or non-public forum test, to be safe, use both tests. |
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Term
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Definition
a place that has historically, or traditionally been used for expressive purposes, like parks, streets, street corners, sidewalks, and town squares.
Tests: Content based - strict scutiny.
content neutral - Time/Place/Manner test. |
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Term
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Definition
Time/Place/Manner test for public forums, it is the O'Brien test plus:
1. Content Neutral.
2. Significant gov't interest.
3. Means cannot be substantially broader than necessary to achieve the interest.
4. ample alternatives for communication. |
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Term
| What is overbreadth, and what is its test? |
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Definition
an overbroad (overinclusive) law that is facially invalid.
Test:
1. look at the domain of speech that it is ok for the gov't to regulate (unprotected) and
2. look at the domain of protected speech that the gov't is trying to regulate.
3. ask whether this law purports to regulate substantially more than that.
3a. if it does, then it is invalid. |
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Term
| What are some of the abnormal rules regarding overbreadth? |
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Definition
| the law can still be overturned even if the law can be constitutionally applied in some instances, in fact your case can be the one instance where the law can be applied constitutionally. |
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Term
| What are the vagueness rules? |
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Definition
A law has to be clear enough that a person of ordinary intelligence can read the law and understand what is being banned.
Example: fighting words can be hard to define. |
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Term
| What are the parts of the religious clause? |
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Definition
1. free exercise clause.
2. establishment clause. |
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Term
| What are the tests under the free exercise clause? |
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Definition
1. if a law is telling people what to believe or what they must claim to believe, absolutely unconstitutional (Torcaso case)
2. If a law has as its animus related object, the burdening of religion, it gets strict scrutiny. (Church of Lukume)
3. if a law is neutral and generally applicable (no built in case by case assessments), then the free exercise clause gives you no protection.
4. if a law is neutral and not generally applicable, then Serbert applies (strict scrutiny).
5. if we are talking about the federal gov't, RFRA gives the law as a matter of legislative grace. |
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Term
| How do we determine if a law has animus? |
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Definition
1. historical setting of the law.
2. effect of the law.
3. ordinances using religious laden terms may be suspect. |
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Term
| What are exceptions to areas that would normally apply strict scrutiny to free exercise? |
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Definition
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Term
|
Definition
| it restores a compelling interest test from Sherbert (even to laws that are neutral), where congress gives people more religious freedom than it has to. |
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Term
| What are the main establishment clause tests? |
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Definition
1. Lemon Test.
2. Kennedy Coercion test - Psychological coercion.
3. Scalia Coercion test - law can punish you if you don't do something.
4. Scalia Endorsement test - only kind of endorsement outside of coercion is any dispute over monotheistic views.
5. O'Connor endorsement test - in the eyes of an objective reasonable observer who is acquainted with the legislative history and context, does the gov't have the purpose of endorsement and did the gov't convey endorsement.
6. Is there a history or tradition of doing things this way. |
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Term
| What is the modified Lemon test? |
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Definition
1. law must have a secular purpose (it must predominate.)
2. Primary effect (consequence) of the law cannot advance or inhibit religion (religion neutral).
3. the law cannot foster an excessive gov't entanglement with religion. |
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Term
| Is funding of religions ok? |
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Definition
| direct funding of religion is an obvious violation. |
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Term
| What funding of religion is allowed? |
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Definition
Where a private decision maker decides where money is spent on education, that is ok, even if it goes to religion, as long as that is not the only option.
The gov't can also pay for buildings at religious colleges as long as they are used for secular purposes.
Teachers can be sent from the state to a religious school. |
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