con law

Question 1

In a sentence or two, define the Tenth Amendment.

Answer 1

The Tenth Amendment helps to define the concept of federalism, the relationship between federal and state governments. The Amendment says that the federal government has only those powers specifically granted by the Constitution.

Question 2

What is the Freedom of Association?

Answer 2

The Freedom of Association recognizes an individual’s right to freely associate with other individuals in groups.

Question 3

What are content-neutral regulations to speech?

Answer 3

Content-neutral speech or communicative conduct regulations are aimed at regulating the time, place, manner of the speech, not its message or content.

Question 4

In a sentence, define a bill of attainder.

Answer 4

A bill of attainder is legislative acts that punish specific individuals without a judicial trial. A bill of attainder is impermissible.

Question 5

Affirmative action measures based on race must pass strict scrutiny. The only two justifications for affirmative action that have been upheld are:

Answer 5

(1) Remedying the effects of past or present discrimination in a particular institution; and (2) Achieving a diverse student body in an institute of higher education

Question 6

What level of scrutiny applies to content-neutral regulations in a public forum?

Answer 6

Intermediate scrutiny. This requires that the regulation only imposes reasonable restrictions on time, place and manner of speech that are narrowly tailored to serve an important government interest, and the regulation must leave open alternative channels of communication to engage in such speech.

Question 7

There must be a source of power for any congressional power. Where are these powers granted?

Answer 7

Congress has limited, enumerated powers granted by the Constitution.

Question 8

When may Congress place a limit of the receipt of federal funds?

Answer 8

Yes, the Supreme Court has held that congress may place a condition on the receipt of federal funds if: (1) the spending serves the general welfare; (2) the condition is unambiguous;
(3) the condition relates to the federal program; (4) the state is not required to undertake unconstitutional action; and (5) the amount in question is not so great as to be considered coercive to the state’s acceptance.

Question 9

In a sentence or two, define ripeness.

Answer 9

Ripeness bars consideration of claims before they have fully developed. To be justiciable, a claim must be ripe meaning that the plaintiff has been harmed or suffers threat of immediate harm.

Question 10

Under the Dormant Commerce Clause, where the regulation is discriminatory either on its face or practical effect, what level of scrutiny applies?

Answer 10

Where the regulation is discriminatory either on its face or in practical effect, it is subject to strict scrutiny and is only permitted if it is necessary to achieve an important noneconomic governmental interest. The state must show that no less reasonable nondiscriminatory alternatives could advance the state’s interest.

Question 11

What is state action?

Answer 11

When alleging a constitutional violation, the plaintiff must show that the violation is attributable to government action. This is also known as state action.

Question 12

In a sentence or two, define the Abstention Doctrine.

Answer 12

Abstention is a doctrine under which federal courts may choose not to hear a case, even if all the formal jurisdiction requirements are met.

Question 13

What is the impeachment power?

Answer 13

Through a majority vote, the House of Representatives can impeach the President, Vice President, federal officers for treason, bribery, or high crimes and misdemeanors. After impeachment, there is a trial in the Senate. Removal from office requires a 2/3 vote in the Senate.

Question 14

Generally, under the Tenth Amendment, Congress cannot compel or commandeer a city or state to pass a law. When regulations apply to both public and private sectors, are these regulations valid.

Answer 14

Yes, regulations that apply to both public and private sectors equally are usually valid.

Question 15

In a sentence, define the Equal Protection Clause of the Fourteenth Amendment.

Answer 15

The Equal Protection Clause of the Fourteenth Amendment prohibits states from treating different classes of people differently without adequate justification.

Question 16

In a sentence, define the Free Exercise Clause.

Answer 16

The Free Exercise Clause of the First Amendment bars any law that prohibits the free exercise of religion. The Free Exercise clause only applies if the purpose of the law is to limit or interfere with religious practice.

Question 17

When there is discrimination on the basis of gender, the government must show:

Answer 17

intermediate scrutiny as well as “an exceedingly persuasive justification.”

Question 18

Generally, the government may regulate content-neutral speech if the regulation satisfies:

Answer 18

intermediate scrutiny.

Question 19

In a sentence, define substantive due process.

Answer 19

Substantive due process limits the government’s ability to limit all persons from engaging in an area of human life. This encompasses both fundamental and non-fundamental rights.

Question 20

What is a limited public forum?

Answer 20

A limited forum is a type of a designated public forum. In a limited the government limits access to a designated public forum to certain classes or types of speech, e.g., a school opened to host a specific community event.

Question 21

The jurisdiction of the federal government is limited to the following 7 cases and controversies:

Answer 21

(1) cases, in law and equity, arising under the Constitution, Laws of the United States and Treaties; (2) cases affecting ambassadors, public ministers and consuls; (3) cases of admiralty and maritime jurisdiction; (4) controversies to which the United States shall be a party; (5) controversies between two or more states; (6) cases between a state or its citizens and a foreign country or foreign citizen; and (7) cases between citizens of different states (“diversity of citizenship” cases).

Question 22

In a sentence, define the First Amendment’s Freedom of Speech

Answer 22

The First Amendment protects an individual’s right to free speech. It is applicable to the states through the Fourteenth Amendment.

Question 23

There are three levels of scrutiny that apply to the Equal Protection Clause. List them.

Answer 23

1. Strict Scrutiny
2. Intermediate Scrutiny
3. Rational Basis Review

Question 24

Under Substantive Due Process, what level of scrutiny applies to the deprivation of fundamental rights?

Answer 24

Strict scrutiny applies to fundamental rights under substantive due process. The government must show the law is necessary to achieve a compelling government interest.

Question 25

In a sentence, define the scrutiny level: Rational Basis Review.

Answer 25

Rational basis review holds that a law will be upheld if it is rationally related to a legitimate government purpose. The burden of proof is on the challenger of the law.

Question 26

When may the government regulate protected commercial speech?

Answer 26

The government may regulate protected commercial speech if the regulation serves a substantial government interest, directly advances that interest, and is reasonably tailored to serve that interest.

Question 27

What are content-based regulation to speech?

Answer 27

Content-based speech regulations restrict speech based on its subject matter or viewpoint.

Question 28

What is a designated public forum?

Answer 28

A designated public is a public property that is not regularly open to speech-related activities, but which the government has thrown open for such activities on a permanent or limited basis, e.g., schools that are open for after school by social, civil or recreational groups. The First Amendment regulations for public forums apply to designated public forums.

Question 29

Under Substantive Due Process, what level of scrutiny is applies to the deprivation of nonfundamental rights?

Answer 29

Rational basis review applies to nonfundamental rights under substantive due process. The law is upheld if it is rationally related to a legitimate government purpose. The burden is on the challenger.

Question 30

What is included in the nonsuspect “catch all” classification?

Answer 30

A nonsuspect classification is a catch all, this includes discrimination based on age, disability, economic and social welfare.

Question 31

When is commercial speech unprotected?

Answer 31

Commercial speech that is false, misleading, deceptive or is illegal or concerns illegal activity is not protected and may be regulated by the government.

Question 32

Under the Equal Protection Clause, there are varying classification levels to determine what level scrutiny to apply. List these classification levels.

Answer 32

(1) Suspect classifications and fundamental rights (are subject to strict scrutiny); (2) Quasi-Suspect classifications (are subject to intermediate scrutiny); (3) Nonsuspect classifications (are subject to rational basis review)

Question 33

In order for a case to be heard in federal court, it must be justiciable. This means that there must be a case or controversy presented. What should be considered when evaluating whether a case or controversy exists?

Answer 33

To determine whether there is a case or controversy, the case must satisfy the requirements for: (1) Standing; (2) Ripeness; (3) Mootness; and (4) Political Question Doctrine

Question 34

List what is considered “unprotected” speech under the First Amendment.

Answer 34

1) Obscenity; (2) Misrepresentation and Defamation; (3) Imminent Lawless Action; (4) Fighting Words

Question 35

What is a nonpublic forum?

Answer 35

A nonpublic forum is a government property not held open for public speech, e.g., the principal’s office at a public school.

Question 36

When may the government restrict symbolic speech?

Answer 36

The government can regulate symbolic speech if the regulation furthers an important government interest unrelated to the suppression of speech, and prohibits no more speech than necessary.

Question 37

There are three ways to show that a law is treating similarly situated persons differently. List them.

Answer 37

(1) When a law is discriminatory on its face; (2) When a law is facially-neutral but is applied in a discriminatory manner; (3) When a law has a discriminatory intent or purpose.

Question 38

In a sentence, define procedural due process.

Answer 38

Procedural due process requires the government to use a fair process before depriving a person of life, liberty or property.

Question 39

What speech is considered to be obscene?

Answer 39

Speech is considered obscene if it appeals to the prurient interest; is patently offense in its sexual portrayal: and taken as a whole, lacks serious literary, artistic, political or scientific value.

Question 40

May the government regulate speech in a nonpublic forum?

Answer 40

Yes, the government can regulate speech in non-public forums if the regulation is reasonably related to some legitimate purpose, is viewpoint-neutral and not aimed at the suppression of speech.

Question 41

For purposes of standing, how can a plaintiff show an injury?

Answer 41

The injury in fact requires showing both a particularized injury – an injury that affects the plaintiff in a personal way; and secondly showing a concrete injury – one that exists in fact. This requires showing an injury or an economic loss.

Question 42

A law that is overbroad may be invalidated. Describe when a speech regulation is overbroad.

Answer 42

A speech regulation is unconstitutionally overbroad when it bans both protected and unprotected speech.

Question 43

What is speech that incites imminent lawless action?

Answer 43

The government can ban speech that is advocating imminent lawless action if (1) there is a substantial likelihood the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

Question 44

When presented with an Equal Protection issue on the MEE, before determining whether there was discrimination and what level of scrutiny applies, you must first determine whether:

Answer 44

there was state action. Also consider when private action can be considered state action

Question 45

Once there is a determination that there was a sufficient deprivation of life, liberty or property, the next step is to determine what procedural safeguards are necessary. The Supreme Court looks to the following three factors:

Answer 45

(1) The private interest that will be affected by the official action;
(2) The risk of an erroneous deprivation of this interest through the procedures used, and the probable value of additional or substitute procedures;
(3) The government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Question 46

A law that is vague may be invalidated. Describe when a speech regulation is considered vague.

Answer 46

A speech regulation is unconstitutionally vague if it is so unclearly defined that a reasonable person would not be able to tell whether the speech is permitted or prohibited.

Question 47

What are fighting words?

Answer 47

Fighting words are words that are likely to cause the listener to commit an act of violence.

Question 48

What is a prior restraint on speech?

Answer 48

Prior restraints involve a prohibition on speech before it has occurred through a court order or licensing requirement. Prior restraints are disfavored and must pass strict scrutiny.

Question 49

In a sentence, define the scrutiny level: Strict Scrutiny.

Answer 49

Strict scrutiny holds that a law will be upheld if it is necessary to achieve a compelling government interest. The burden is on the government, and the government must show there are no less restrictive or burdensome means to achieve its goal.

Question 50

The tort of defamation and the First Amendment intersect when defamation involves a public official or a matter of public concern. Where the plaintiff is a public official or public figure, the plaintiff must establish that the defendant acted with actual malice. What is actual malice?

Answer 50

Actual malice occurs when a statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not.

Question 51

In a sentence, define the scrutiny level: Intermediate Scrutiny.

Answer 51

Intermediate scrutiny holds that a law will be upheld if it is substantially related to an important government purpose. The government bears the burden of proof.

Question 52

If a government action contains no sect or religious preference, it must satisfy the Lemon test. This requires that the action:

Answer 52

(1) has a secular purpose; (2) has a primary secular effect that neither advances or inhibits religion; and (3) does not create excessive government entanglement with religion.

Question 53

Does the First Amendment provide the press with a defense to trespass or other torts?

Answer 53

No. The First Amendment does not protect the press from liability for violating generally applicable laws, even if such laws impact the ability to gather and report the news on a matter of public concern. Note: The intersection of the First Amendment and trespass appears relatively frequently on the MEE.

Question 54

What is included in the suspect classification?

Answer 54

Suspect classifications include those based on race, national origin, alienage.

Question 55

In a sentence, define the Speech or Debate Clause.

Answer 55

The Speech or Debate Clause provides immunity from prosecution for members of Congress (legislators and their aides) for activities occurring in the regular course of the legislative process.

Question 56

What is included in the quasi-suspect classification?

Answer 56

Quasi-suspect classifications include those based on gender and illegitimacy (non-marital children).

Question 57

What level of scrutiny applies to content-based regulations? Then, define this scrutiny level.

Answer 57

Strict scrutiny applies to content-based restrictions. Strict scrutiny requires the government to show the regulation is necessary (narrowly tailored) to achieve a compelling government means and it uses the least restrictive means.

Question 58

When does the First Amendment protect the press from liability when publishing?

Answer 58

The First Amendment protects the press when publishing truthful private facts about a matter of public concern where such information was legally obtained.

Question 59

What are the fundamental rights subject to strict scrutiny under Equal Protection?

Answer 59

(1) Freedom of Association; (2) Interstate Travel; (3) Privacy; (4) Voting