Con Law Super Flashcards
1
Q
Q: What was the original application of the Bill of Rights concerning state and federal governments?
A
A: The Bill of Rights originally limited only the federal government, with states largely retaining authority over individual rights.
2
Q
Q: Which amendment introduced the Due Process and Equal Protection Clauses, providing federal checks on the states?
A
A: The 14th Amendment.
3
Q
Q: What was the significance of the Slaughter-House Cases (1873) in incorporation?
A
A: They interpreted the Privileges or Immunities Clause narrowly, undermining the argument that all Bill of Rights provisions were fundamental privileges of federal citizenship.
4
Q
Q: What test did Palko v. Connecticut (1937) introduce for selective incorporation?
A
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.
5
Q
Q: What is ‘jot-for-jot’ incorporation?
A
A: Once a right is incorporated, it applies to the states identically as it does to the federal government, with no watering down.
6
Q
Q: What right did Griswold v. Connecticut (1965) establish?
A
A: The right of married couples to use contraception, recognizing a ‘zone of privacy.’
7
Q
Q: How did Eisenstadt v. Baird (1972) expand the right to contraception?
A
A: It extended contraception rights to unmarried individuals, grounding the right in individual privacy.
8
Q
Q: What standard did Planned Parenthood v. Casey (1992) replace Roe v. Wade’s trimester framework with?
A
A: The undue burden standard.
9
Q
Q: What is the primary basis for reproductive freedom according to constitutional law?
A
A: Autonomy, bodily integrity, equality, and the role of intimate decisions in shaping a person’s destiny.
10
Q
Q: What did Cruzan v. Director, Missouri Department of Health (1990) establish about the right to refuse medical treatment?
A
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.
11
Q
Q: What did Washington v. Glucksberg (1997) rule regarding physician-assisted suicide?
A
A: It rejected a fundamental right to physician-assisted suicide, upholding state bans as rationally related to legitimate interests.
12
Q
Q: What are the three levels of scrutiny used in Equal Protection cases?
A
A: Strict Scrutiny, Intermediate Scrutiny, and Rational Basis.
13
Q
Q: When is Strict Scrutiny applied?
A
A: To suspect classifications (e.g., race, national origin) and classifications burdening fundamental rights.
14
Q
Q: What standard did the Court apply in Romer v. Evans regarding rational basis review?
A
A: Rational Basis with Bite, striking down laws motivated by bare animus.
15
Q
Q: How has affirmative action been treated under Equal Protection scrutiny?
A
A: It triggers strict scrutiny and must meet very narrow criteria, with recent cases severely limiting race-based preferences.
16
Q
Q: What is the ‘Public Function Test’ in determining state action?
A
A: If a private entity performs a task traditionally and exclusively performed by the government, their actions are deemed state action.
17
Q
Q: Give an example of state action under the ‘Entanglement/Nexus Test.’
A
A: Judicial enforcement of racially restrictive covenants, as seen in Shelley v. Kraemer.
18
Q
Q: What are the two clauses of the First Amendment related to religion?
A
A: The Establishment Clause and the Free Exercise Clause.
19
Q
Q: What test did Lemon v. Kurtzman (1971) establish for the Establishment Clause?
A
A: The Lemon Test: secular purpose, no primary effect advancing/inhibiting religion, and no excessive entanglement.
20
Q
Q: How did Kennedy v. Bremerton School District (2022) change the approach to the Establishment Clause?
A
A: It largely abandoned the Lemon Test in favor of historical practices and ensuring no coercion.
21
Q
Q: What was the significance of Employment Division v. Smith (1990) for the Free Exercise Clause?
A
A: It held that neutral, generally applicable laws do not require religious exemptions, shifting away from strict scrutiny.
22
Q
Q: What are the three main theories justifying freedom of speech under the First Amendment?
A
A: Political Speech/Democracy Rationale, Marketplace of Ideas/Truth-Seeking, and Self-Realization/Autonomy.
23
Q
Q: What distinguishes content-based regulations from content-neutral regulations?
A
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.
24
Q
Q: What standard must speech advocating illegal action meet to be unprotected?
A
A: Brandenburg Test: directed to inciting imminent lawless action and likely to produce such action.
25
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.
26
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.
27
Q: What fundamental rights are protected under the Due Process Clause concerning family?
A: The right to marry, raise children, and maintain family relationships.
28
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.
29
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.
30
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.
31
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.
32
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.
33
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.
34
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.
35
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.
36
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.
37
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).
38
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.
39
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.
40
Q: What doctrine has led to nearly the entire Bill of Rights applying to the states?
A: The selective incorporation doctrine.
41
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.
42
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.
43
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.
44
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.
45
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.
46
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.
47
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.
48
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.
49
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.
50
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.
51
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.
52
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.
53
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.
54
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.
55
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.
56
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.
57
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.
58
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.
59
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.
60
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.
61
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.
62
Q: What triggers Strict Scrutiny in Equal Protection cases?
A: Suspect classifications (e.g., race, national origin) and classifications burdening fundamental rights.
63
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.
64
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.
65
Q: What is Rational Basis Review, and when is it applied?
A: It is the default standard requiring that the government has a legitimate interest and that the classification is rationally related to that interest, applied to non-suspect classes like age, disability, and wealth.
66
Q: What does 'Rational Basis with Bite' refer to in Equal Protection analysis?
A: A more searching form of rational basis review used when the Court suspects animus or discrimination against historically disfavored groups, striking down laws motivated by bare animus.
67
Q: How has affirmative action been treated under Equal Protection scrutiny in recent cases?
A: It triggers strict scrutiny and must meet very narrow criteria, with recent cases like Students for Fair Admissions v. Harvard/UNC severely limiting race-based preferences.
68
Q: What did Grutter v. Bollinger (2003) establish about affirmative action?
A: It upheld race-conscious admissions policies as part of a narrowly tailored holistic review to achieve diversity, under strict scrutiny.
69
Q: How did Regents v. Bakke (1978) impact affirmative action policies?
A: It struck down quota systems but allowed race to be one of several factors in admissions decisions to promote diversity.
70
Q: What did Romer v. Evans (1996) decide regarding sexual orientation classifications?
A: It struck down an amendment banning protected status for sexual orientation, applying Rational Basis with Bite to eliminate laws motivated by animus.
71
Q: What is the standard for laws affecting wealth under Equal Protection?
A: Rational Basis Review, as wealth is a non-suspect classification, unless the law prevents access to fundamental rights, triggering higher scrutiny.
72
Q: What must a government show when a classification burdens a fundamental right under Equal Protection?
A: It must satisfy Strict Scrutiny, demonstrating a compelling interest and that the classification is narrowly tailored to achieve that interest.
73
Q: How does Plyler v. Doe (1982) relate to Equal Protection?
A: It struck down laws denying public education to undocumented children, treating education as a fundamental right deserving Intermediate Scrutiny-like protection.
74
Q: What is the significance of Harper v. Virginia Board of Elections (1966) in Equal Protection?
A: It struck down poll taxes as violations of Equal Protection because they imposed a financial burden on the fundamental right to vote.
75
Q: How do courts determine the level of scrutiny for Equal Protection cases?
A: By identifying if the classification is suspect, quasi-suspect, or non-suspect, and whether it burdens a fundamental right.
76
Q: What does the 'Entanglement/Nexus Test' assess in determining state action?
A: It assesses whether the government is heavily involved, encourages, or is symbiotically intertwined with the private entity’s conduct.
77
Q: Why does mere licensing not typically constitute state action?
A: Because it does not create a substantial nexus where the private party’s action is essentially that of the government.
78
Q: What was the key finding in Shelley v. Kraemer (1948) regarding state action?
A: Judicial enforcement of racially restrictive covenants constitutes state action, making such covenants unenforceable under the Constitution.
79
Q: How did Burton v. Wilmington Parking Authority (1961) define state action through the nexus test?
A: It held that a coffee shop in a publicly owned parking garage benefited from public support, creating a symbiotic relationship that constitutes state action.
80
Q: What principle did Moose Lodge v. Irvis (1975) establish regarding state action?
A: That merely receiving government funds or having a government license does not automatically make a private entity a state actor.
81
Q: In what scenario would private discrimination be considered state action?
A: When it is enforced or encouraged by the state, such as through judicial enforcement or significant entanglement with government.
82
Q: What must plaintiffs show to claim state action in Equal Protection or Due Process cases?
A: That the private conduct can be fairly attributed to the state through tests like public function, entanglement, or state enforcement.
83
Q: What role do courts play in determining state action?
A: Courts analyze whether the private entity’s actions are governmental in nature or if there is significant government involvement.
84
Q: What are the main principles of the Establishment Clause?
A: Government must remain neutral towards religion, neither favoring nor disfavoring any religion.
85
Q: What does the Free Exercise Clause protect?
A: The right to practice one’s religion freely, including both the right to believe and the right to act on those beliefs, within constitutional limits.
86
Q: How can providing accommodations to religion create a conflict with the Establishment Clause?
A: It might appear as if the government is favoring or endorsing a particular religion, violating the Establishment Clause.
87
Q: What was the outcome of Van Orden v. Perry (2005) regarding religious symbols on public property?
A: The Ten Commandments monument on Texas State Capitol grounds was allowed based on historical tradition.
88
Q: What did Zelman v. Simmons-Harris (2002) decide about government funding of religious institutions?
A: It upheld school vouchers for private (including religious) schools, as the aid was neutral and provided on equal terms to secular groups.
89
Q: How did Trinity Lutheran v. Comer (2020) affect religious institutions receiving government aid?
A: It ruled that excluding religious schools from generally available government aid solely based on their religious status violates the Free Exercise Clause.
90
Q: What principle did Espinoza v. Montana Department of Revenue (2020) reinforce regarding religious schools?
A: That states cannot exclude religious schools from government aid programs if the aid is available to other private schools.
91
Q: What does the 'Historical Practices & Understanding Test' focus on in Establishment Clause cases post-Kennedy v. Bremerton?
A: It focuses on whether the government practice aligns with historical practices and original understanding without coercion.
92
Q: How does Locke v. Davey (2004) illustrate the balance between Free Exercise and Establishment Clauses?
A: It allowed the exclusion of devotional theology majors from scholarship programs without violating Free Exercise or Establishment, showing some room for state discretion.
93
Q: What is the primary goal of the Freedom of Expression under the First Amendment?
A: To ensure democratic self-government, a marketplace of ideas, and personal self-realization by protecting speech and expressive conduct from government restriction.
94
Q: What is the difference between content-based and content-neutral regulations?
A: Content-based regulations target the subject matter or viewpoint of speech and trigger strict scrutiny, whereas content-neutral regulations address the time, place, or manner of speech and trigger intermediate scrutiny.
95
Q: What did R.A.V. v. City of St. Paul (1992) decide about banning fighting words based on viewpoint?
A: It ruled that a city ordinance cannot selectively ban fighting words based on their viewpoint, as it violates the First Amendment.
96
Q: What is the standard for Time, Place, and Manner (TPM) restrictions on speech?
A: They must be content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication.
97
Q: How did United States v. O’Brien (1968) define symbolic speech?
A: It defined symbolic speech as conduct intended to convey a message, which is protected unless the regulation is within constitutional power, furthers an important interest, the interest is unrelated to suppression of expression, and the restriction is no greater than necessary.
98
Q: What was the ruling in Texas v. Johnson (1989) regarding flag burning?
A: The Court held that flag burning is protected symbolic political speech under the First Amendment.
99
Q: How does Brandenburg v. Ohio (1969) protect advocacy of illegal action?
A: It protects speech advocating illegal action unless it is directed to inciting imminent lawless action and is likely to produce such action.
100
Q: What must a public figure prove in a defamation case post-New York Times v. Sullivan (1964)?
A: Actual malice, meaning the defendant knew the statement was false or acted with reckless disregard for the truth.
101
Q: What are 'fighting words' according to Chaplinsky v. New Hampshire (1942)?
A: Words that by their very utterance inflict injury or tend to incite immediate breach of peace, which are unprotected by the First Amendment.
102
Q: How did Cohen v. California (1971) impact the understanding of offensive words?
A: It protected the display of offensive language, holding that such speech cannot be banned simply because it is offensive or disturbs the peace.
103
Q: What distinguishes hate speech from other speech categories under U.S. law?
A: Hate speech is not a separate category of unprotected speech and cannot be selectively punished unless it fits into another unprotected category like fighting words.
104
Q: What is the Central Hudson Test for commercial speech?
A: 1) The speech must concern lawful activity and not be misleading. 2) The government must have a substantial interest. 3) The regulation must directly advance that interest. 4) It must not be more extensive than necessary.
105
Q: What are the narrow exceptions where prior restraints on speech might be justified?
A: Obscenity, classified information on atomic bombs, child pornography, or truly imminent national security risks.
106
Q: What is the 'Collateral Bar Rule' regarding injunctions against future speech?
A: Plaintiffs must comply with injunctions against future speech until the injunction is vacated.
107
Q: How does the Court view offensive language under the First Amendment?
A: Offensive language is often protected unless it directly incites harm, as exemplified by cases like Cohen v. California.
108
Q: What distinguishes Procedural Due Process from Substantive Due Process?
A: Procedural Due Process focuses on the fairness of the procedures before the government deprives a person of life, liberty, or property, while Substantive Due Process limits the government's power to regulate certain fundamental rights.
109
Q: What must a claimant demonstrate to show a deprivation of a protected interest under Procedural Due Process?
A: That there is a deprivation of a life, liberty, or property interest protected by the Constitution.
110
Q: What did Board of Regents v. Roth (1972) establish about property interests?
A: A property interest must be a legitimate claim of entitlement under state law or rules, not just a unilateral expectation.
111
Q: How did Perry v. Sindermann (1972) expand the understanding of property interests?
A: It recognized that a de facto tenure program can create a property interest in continued employment, even if not formally established.
112
Q: What did Cleveland Board of Education v. Loudermill (1985) decide regarding procedural protections?
A: Once a property interest in employment is established by state law, the procedural protections are defined by the U.S. Constitution, not by the state.
113
Q: What are the three factors of the Mathews v. Eldridge (1976) test for Procedural Due Process?
A: 1) The private interest affected by the official action. 2) The risk of erroneous deprivation and the value of additional safeguards. 3) The government's interest in efficiency and avoiding undue burdens.
114
Q: How did Goldberg v. Kelly (1970) influence Procedural Due Process requirements?
A: It required a pre-termination evidentiary hearing before cutting off welfare benefits, emphasizing the need for fair procedures.
115
Q: What does Logan v. Zimmerman Brush Co. (1982) highlight about Procedural Due Process?
A: It emphasizes that procedural protections apply not only to initial deprivations but also to how state procedures are administered.
116
Q: What is the primary goal of Procedural Due Process?
A: To ensure accuracy, fairness, and legitimacy in governmental adjudications or decisions.
117
Q: Can the government be required to provide a benefit under Procedural Due Process?
A: No, Procedural Due Process does not require the government to provide a benefit, but ensures that if a benefit is provided, it is taken away fairly.
118
Q: What is the difference between De Jure and De Facto discrimination?
A: De Jure discrimination is intentional and codified by law, triggering strict scrutiny, while De Facto discrimination is unintentional and requires proof of discriminatory intent to trigger strict scrutiny.
119
Q: What did Yick Wo v. Hopkins (1886) establish regarding discrimination?
A: That even if a law is neutral on its face, its discriminatory enforcement can constitute De Jure discrimination if it disproportionately affects a particular group.
120
Q: How do courts handle classifications that burden fundamental rights?
A: They apply Strict Scrutiny, requiring a compelling government interest and that the law is narrowly tailored to achieve that interest.
121
Q: What was the outcome of United States v. Virginia (1996) regarding gender discrimination?
A: The Court struck down the male-only admissions policy of the Virginia Military Institute, applying Intermediate Scrutiny to gender classification.
122
Q: How did Plyler v. Doe (1982) apply Equal Protection to education?
A: It held that denying public education to undocumented children violates Equal Protection, treating education as a fundamental right deserving protection.
123
Q: What is the significance of Collin v. Smith (2018) in Equal Protection?
A: It likely impacts hate speech and anti-LGBTQ laws, indicating courts' increased scrutiny of laws based on sexual orientation even without a formal suspect classification.
124
Q: How are laws affecting nonmarital children evaluated under Equal Protection?
A: They are subject to Intermediate Scrutiny, requiring an important government interest and substantial relation to that interest.
125
Q: How does Burton v. Wilmington Parking Authority (1961) illustrate the Entanglement/Nexus Test?
A: By showing that a private coffee shop in a publicly owned parking garage benefits from public support, creating a symbiotic relationship that constitutes state action.
126
Q: Why are private schools generally not considered state actors?
A: Unless they perform a public function or are heavily entangled with the state, private schools remain private entities and their actions are not subject to constitutional constraints.
127
Q: What determines if a private entity performing a public function is subject to constitutional limits?
A: If the function is traditionally and exclusively governmental, their actions are deemed state action and subject to constitutional limits.
128
Q: What role does 'substantial nexus' play in determining state action?
A: It ensures that there is a significant connection between the state and the private entity’s actions, making them attributable to the state.
129
Q: Can mere government regulation or funding convert a private entity into a state actor?
A: No, mere regulation or funding does not suffice; there must be a substantial nexus where the private entity’s actions are essentially that of the government.
130
Q: What are the four prongs of the United States v. O’Brien (1968) test for symbolic speech regulation?
A: 1) Within constitutional power of the government. 2) Furthers an important or substantial interest. 3) The interest is unrelated to suppressing expression. 4) The restriction is no greater than necessary.
131
Q: What did Terminiello v. Chicago (1949) establish about hostile audiences?
A: Speech that provokes a hostile audience reaction is still protected unless it meets the stringent incitement or fighting words standard.
132
Q: How did Feiner v. New York (1951) approach speech in the context of imminent riots?
A: It allowed stopping speech if it is likely to incite an imminent riot and no less restrictive means are available to preserve order.
133
Q: What does the Central Hudson Test apply to, and what are its components?
A: It applies to commercial speech and requires that the speech is not misleading, serves a substantial government interest, directly advances that interest, and is not more extensive than necessary.
134
Q: How are prior restraints on speech generally viewed under the First Amendment?
A: They are disfavored and presumptively unconstitutional unless they fall within narrow exceptions like obscenity or national security risks.
135
Q: What distinguishes hybrid rights in Free Exercise cases post-Smith?
A: When another constitutional right is combined with free exercise, it may require stricter scrutiny.
136
Q: How does Fulton v. City of Philadelphia (2021) relate to the Free Exercise Clause?
A: It held that if a system of individualized exemptions exists, denying religious claims equally can trigger strict scrutiny.
137
Q: What is a key strategy for analyzing Equal Protection cases?
A: Identify the classification, determine if it is suspect, quasi-suspect, or non-suspect, and apply the appropriate level of scrutiny.
138
Q: When analyzing an Establishment Clause case post-Kennedy v. Bremerton, what should you focus on?
A: Historical practices and ensuring there is no coercion in government actions related to religion.
139
Q: What should you determine first when analyzing State Action in a case?
A: Whether the conduct in question is by a private party or the government, and if private, whether it meets any state action tests like public function or entanglement.
140
Q: How should you approach Procedural Due Process questions on the exam?
A: Identify the protected interest, apply the Mathews v. Eldridge factors, and determine if the required procedures are met to ensure fairness.
141
Q: What is essential when applying the Brandenburg Test to advocacy of illegal action?
A: Showing that the speech is directed to inciting imminent lawless action and is likely to produce such action.
142
Q: How do you handle affirmative action questions under Equal Protection in the current legal landscape?
A: Recognize that race-based affirmative action is highly scrutinized, with recent cases severely limiting its application, and ensure that any affirmative action policy meets the strictest standards of scrutiny.
143
Q: What should you always consider when dealing with Freedom of Expression cases?
A: Whether the regulation is content-based or content-neutral, and apply strict scrutiny or intermediate scrutiny accordingly.
144
Q: In Equal Protection cases, how do you handle classifications based on sexual orientation?
A: Apply Rational Basis with Bite, scrutinizing for any animus or discriminatory intent behind the law.
145
Q: What distinguishes Procedural Due Process from Substantive Due Process in practice?
A: Procedural Due Process is about fair procedures before deprivation, while Substantive Due Process concerns the fundamental nature of the rights being protected from government interference.
146
Q: What amendment contains the Equal Protection Clause?
A: The 14th Amendment.
147
Q: Which case applied the Due Process Clause to incorporate the Second Amendment against the states?
A: McDonald v. City of Chicago (2010).
148
Q: What clause is primarily used to incorporate most of the Bill of Rights against the states?
A: The Due Process Clause of the 14th Amendment.
149
Q: What is the primary function of the Free Exercise Clause?
A: To protect individuals' rights to practice their religion freely without government interference.
150
Q: Which case overruled Bowers v. Hardwick, striking down sodomy laws?
A: Lawrence v. Texas (2003).
151
Q: What standard did Palko v. Connecticut (1937) set for selective incorporation?
A: Only rights 'implicit in the concept of ordered liberty' and 'rooted in the traditions and conscience of our people' are incorporated.
152
Q: What is the key focus of Procedural Due Process?
A: The fairness and adequacy of the procedures used by the government before depriving a person of life, liberty, or property.
153
Q: How does the Court view laws based solely on moral disapproval post-Lawrence v. Texas?
A: Such laws are unconstitutional as they do not provide a legitimate justification beyond moral disapproval.
154
Q: What did Shapiro v. Thompson (1969) establish about residency requirements?
A: That residency requirements for welfare benefits that penalize recent movers violate the fundamental right to travel.
155
Q: What principle did Yick Wo v. Hopkins (1886) establish regarding equal protection?
A: That discriminatory intent can be inferred from disproportionate impact, especially in cases of laws with racially discriminatory enforcement.
156
Q: How did Griswold v. Connecticut (1965) establish the 'zone of privacy'?
A: By identifying penumbras and emanations from the Bill of Rights that create a zone of privacy, particularly regarding marital contraception.
157
Q: What role does autonomy play in reproductive freedom?
A: Autonomy underpins the constitutional right to make intimate personal decisions, such as using contraception or choosing to have an abortion.
158
Q: How does the Court balance individual autonomy with state interests in Right to Die cases?
A: By allowing refusal of life-sustaining treatment while permitting states to impose standards ensuring genuine choice and preventing abuse.
159
Q: What is the 'zone of privacy' and which amendments contribute to it?
A: It is a concept derived from the penumbras of the 1st, 3rd, 4th, 5th, and 9th Amendments, creating a space of personal liberty protected by the 14th Amendment.
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Q: In what way did Eisenstadt v. Baird (1972) refine the understanding of privacy in reproductive rights?
A: It extended the right to use contraception to unmarried individuals, emphasizing individual privacy over marital status.
