Con Law Super Flashcards
Q: What was the original application of the Bill of Rights concerning state and federal governments?
A: The Bill of Rights originally limited only the federal government, with states largely retaining authority over individual rights.
Q: Which amendment introduced the Due Process and Equal Protection Clauses, providing federal checks on the states?
A: The 14th Amendment.
Q: What was the significance of the Slaughter-House Cases (1873) in incorporation?
A: They interpreted the Privileges or Immunities Clause narrowly, undermining the argument that all Bill of Rights provisions were fundamental privileges of federal citizenship.
Q: What test did Palko v. Connecticut (1937) introduce for selective incorporation?
A: Only rights ‘implicit in the concept of ordered liberty’ and ‘rooted in the traditions and conscience of our people’ would be protected against the states.
Q: What is ‘jot-for-jot’ incorporation?
A: Once a right is incorporated, it applies to the states identically as it does to the federal government, with no watering down.
Q: What right did Griswold v. Connecticut (1965) establish?
A: The right of married couples to use contraception, recognizing a ‘zone of privacy.’
Q: How did Eisenstadt v. Baird (1972) expand the right to contraception?
A: It extended contraception rights to unmarried individuals, grounding the right in individual privacy.
Q: What standard did Planned Parenthood v. Casey (1992) replace Roe v. Wade’s trimester framework with?
A: The undue burden standard.
Q: What is the primary basis for reproductive freedom according to constitutional law?
A: Autonomy, bodily integrity, equality, and the role of intimate decisions in shaping a person’s destiny.
Q: What did Cruzan v. Director, Missouri Department of Health (1990) establish about the right to refuse medical treatment?
A: A competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment, and states can require ‘clear and convincing evidence’ of prior wishes for incompetent patients.
Q: What did Washington v. Glucksberg (1997) rule regarding physician-assisted suicide?
A: It rejected a fundamental right to physician-assisted suicide, upholding state bans as rationally related to legitimate interests.
Q: What are the three levels of scrutiny used in Equal Protection cases?
A: Strict Scrutiny, Intermediate Scrutiny, and Rational Basis.
Q: When is Strict Scrutiny applied?
A: To suspect classifications (e.g., race, national origin) and classifications burdening fundamental rights.
Q: What standard did the Court apply in Romer v. Evans regarding rational basis review?
A: Rational Basis with Bite, striking down laws motivated by bare animus.
Q: How has affirmative action been treated under Equal Protection scrutiny?
A: It triggers strict scrutiny and must meet very narrow criteria, with recent cases severely limiting race-based preferences.
Q: What is the ‘Public Function Test’ in determining state action?
A: If a private entity performs a task traditionally and exclusively performed by the government, their actions are deemed state action.
Q: Give an example of state action under the ‘Entanglement/Nexus Test.’
A: Judicial enforcement of racially restrictive covenants, as seen in Shelley v. Kraemer.
Q: What are the two clauses of the First Amendment related to religion?
A: The Establishment Clause and the Free Exercise Clause.
Q: What test did Lemon v. Kurtzman (1971) establish for the Establishment Clause?
A: The Lemon Test: secular purpose, no primary effect advancing/inhibiting religion, and no excessive entanglement.
Q: How did Kennedy v. Bremerton School District (2022) change the approach to the Establishment Clause?
A: It largely abandoned the Lemon Test in favor of historical practices and ensuring no coercion.
Q: What was the significance of Employment Division v. Smith (1990) for the Free Exercise Clause?
A: It held that neutral, generally applicable laws do not require religious exemptions, shifting away from strict scrutiny.
Q: What are the three main theories justifying freedom of speech under the First Amendment?
A: Political Speech/Democracy Rationale, Marketplace of Ideas/Truth-Seeking, and Self-Realization/Autonomy.
Q: What distinguishes content-based regulations from content-neutral regulations?
A: Content-based laws target the subject matter or viewpoint and trigger strict scrutiny, while content-neutral laws regulate time, place, or manner and trigger intermediate scrutiny.
Q: What standard must speech advocating illegal action meet to be unprotected?
A: Brandenburg Test: directed to inciting imminent lawless action and likely to produce such action.
Q: What did New York Times v. Sullivan (1964) establish for defamation cases involving public figures?
A: Public figures must prove ‘actual malice’ to win defamation claims.
Q: What constitutes ‘fighting words’ and are they protected?
A: Words that ‘inflict injury or tend to incite immediate breach of peace.’ They are unprotected but the category is very narrow.
Q: What fundamental rights are protected under the Due Process Clause concerning family?
A: The right to marry, raise children, and maintain family relationships.
Q: What did Loving v. Virginia (1967) rule regarding marriage?
A: Struck down bans on interracial marriage as violations of Equal Protection and Due Process.
Q: How did Turner v. Safley (1987) address inmates’ rights?
A: Confirmed that inmates retain the fundamental right to marry, subject to legitimate prison regulations.
Q: What is the significance of Shapiro v. Thompson (1969) in the context of the right to travel?
A: It struck down residency requirements for welfare benefits that penalized recent movers, recognizing the right to interstate travel as fundamental.
Q: What standard did Saenz v. Roe (1999) apply to laws affecting the right to travel?
A: Strict scrutiny for policies that penalize interstate movement by denying benefits to recent arrivals.
Q: What did McDonald v. City of Chicago (2010) establish regarding the Second Amendment?
A: Incorporated the Second Amendment against the states through the 14th Amendment’s Due Process Clause, recognizing the right to keep and bear arms as fundamental.
Q: What is the current doctrine regarding state restrictions on firearms post-McDonald?
A: State restrictions are subject to meaningful constitutional review, balancing public safety and individual rights, with some regulatory authority acknowledged.
Q: What is the primary focus of procedural due process?
A: Ensuring fair procedures before the government deprives a person of life, liberty, or property.
Q: What test is used to determine the required procedures under procedural due process?
A: The Mathews v. Eldridge (1976) Test, which balances the private interest, the risk of erroneous deprivation, and the government’s interest.
Q: What should you identify first when analyzing an Equal Protection case?
A: The classification and whether it is suspect, quasi-suspect, or non-suspect.
Q: When applying the Free Exercise Clause, what determines the level of scrutiny?
A: Whether the law targets religion (strict scrutiny) or is neutral and generally applicable (rational basis under Smith).
Q: What is a key strategy for analyzing Establishment Clause cases post-Kennedy v. Bremerton?
A: Focus on historical practices and ensure there is no coercion.
Q: What is the significance of McDonald v. City of Chicago (2010) in the context of incorporation?
A: It incorporated the Second Amendment against the states through the 14th Amendment’s Due Process Clause, recognizing the right to keep and bear arms as fundamental.
Q: What doctrine has led to nearly the entire Bill of Rights applying to the states?
A: The selective incorporation doctrine.
Q: What was the Court’s approach in Gideon v. Wainwright (1963) regarding the Sixth Amendment?
A: It incorporated the right to counsel, ensuring that states must provide legal representation to defendants who cannot afford an attorney.
Q: How did Mapp v. Ohio (1961) affect the Fourth Amendment?
A: It applied the exclusionary rule to the states, preventing illegally obtained evidence from being used in state courts.
Q: What did Whole Woman’s Health v. Hellerstedt (2016) emphasize regarding abortion restrictions?
A: Courts must weigh the health benefits of abortion restrictions against their burdens on access, ensuring that restrictions do not unduly hinder the right to abortion.
Q: How are state laws regarding contraception and reproductive rights evaluated today?
A: They are tested against whether they intrude on the fundamental autonomy over reproductive decisions recognized under substantive due process.
Q: What framework did Roe v. Wade (1973) establish for abortion regulation?
A: A trimester framework balancing a woman’s liberty interest and the state’s interests in potential life and maternal health.
Q: What does the right to refuse medical treatment include?
A: The liberty interest in refusing unwanted medical treatment, including life-sustaining procedures, grounded in bodily integrity.
Q: How does the state balance personal autonomy with its interests in right-to-die cases?
A: By requiring clear and convincing evidence of prior wishes for incompetent patients and ensuring that state interests in preserving life and preventing abuse are met.
Q: What did Bowers v. Hardwick (1986) rule regarding same-sex sexual conduct?
A: Upheld a state sodomy law criminalizing same-sex sexual conduct, reasoning that it did not fall under a fundamental right.
Q: How did Lawrence v. Texas (2003) change the legal landscape for sexual liberty?
A: Overruled Bowers, striking down laws criminalizing consensual same-sex sexual conduct between adults in private, emphasizing liberty, dignity, and respect for private life.
Q: What does the post-Lawrence understanding of sexual liberty entail?
A: It is part of the Fourteenth Amendment’s protection of personal autonomy and intimate association, avoiding strict scrutiny labels but treating it as a liberty interest.
Q: What broader implications did Lawrence v. Texas (2003) have?
A: It laid the groundwork for later decisions protecting same-sex couples, such as Obergefell v. Hodges, by recognizing personal identity and intimate choices as protected under substantive due process.
Q: What did Zablocki v. Redhail (1978) determine about marriage restrictions?
A: It invalidated a law requiring individuals with outstanding child support obligations to get court approval before marrying, triggering heightened scrutiny.
Q: How did Turner v. Safley (1987) address inmates’ rights to marry?
A: It confirmed that inmates retain the fundamental right to marry, subject to legitimate prison regulations.
Q: What rights regarding parenting and control over children were established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?
A: These cases recognized parents’ rights to direct their children’s education and upbringing, striking down laws that interfered with teaching certain subjects or compelled only public schooling.
Q: What was the outcome of Prince v. Massachusetts (1944) concerning parental rights and child welfare?
A: It held that while the right to raise children is fundamental, states can regulate child welfare, balancing parental rights against the state’s interest in protecting children.
Q: How did Wisconsin v. Yoder (1972) impact parental rights?
A: It exempted Amish parents from compulsory high school attendance laws due to religious freedom and longstanding tradition, respecting parental control over education and cultural upbringing.
Q: What did Moore v. City of East Cleveland (1977) rule about family living arrangements?
A: It struck down housing ordinances limiting occupancy to narrowly defined family units, protecting extended family living arrangements.
Q: How does Saenz v. Roe (1999) relate to the Privileges or Immunities Clause?
A: It recognized the right of newly arrived citizens to enjoy the same privileges as longer-term residents, partly based on the Privileges or Immunities Clause.
Q: What is the relationship between the right to travel and Equal Protection?
A: Policies that discourage or penalize interstate movement must meet a compelling interest under Equal Protection principles, protecting mobility and national unity.
Q: Why is the right to travel considered fundamental?
A: It is essential to national unity and individual freedom, allowing citizens to move freely between states without undue restriction.
Q: What is the main purpose of the Equal Protection Clause?
A: To ensure that similarly situated individuals are treated alike unless differential treatment is justified by appropriate governmental purposes.
Q: What triggers Strict Scrutiny in Equal Protection cases?
A: Suspect classifications (e.g., race, national origin) and classifications burdening fundamental rights.
Q: What are quasi-suspect classes, and which classifications fall under this category?
A: Quasi-suspect classes include gender and nonmarital children, which trigger Intermediate Scrutiny.
Q: What is the standard for Intermediate Scrutiny?
A: The government must show an important interest, and the classification must be substantially related to that interest.
