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Barbri > Constitutional Law > Flashcards

Constitutional Law Flashcards

1
Q

to pass C muster under 1st A, a statute or ordinance that burdens speech based on its content generally must be

A

necessary to serve a compelling state interest

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2
Q

level of scrutiny applied to non-content based regulations of the conduct related to speech

A

intermediate standard

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3
Q

to be valid, a time, place, and manner regulation of a limited public forum must be

A

viewpoint neutral and rationally related to a legitimate government purpose

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4
Q

if a regulation of speech is found to be over broad, but judged in relation to its plainly legitimate sweep it does not prohibit a substantial amount of protected speech, may it be enforced

A

yes, but only against persons engaging in activities that are not C protected

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5
Q

commercial speech under 1st A

A
  • protected
  • but if false or misleading NOT protected
  • can be regulated if the regulation serves a substantial government interest, directly advances that interest and is narrowly tailored to serve that interest
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6
Q

unprotected speech

A
  • fighting words
  • speech creating a clear and present danger of imminent lawless action
  • obscenity
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7
Q

under the clear and present danger test, speech may be sanctioned whenever it

A

is directed to producing or inciting imminent lawless action and is likely to produce such action

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8
Q

deprivations of liberty under the DPC

A
  • person loses significant freedom of action
  • person denied freedom provided by C or statute
  • gov acts that cause denial of right to engage in gainful employment, loss of a freedom provided by C or denial of the right to vote
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9
Q

for DPC purposes, a person will be deemed to have a property interest in continuation of a gov benefit if the person has

A

a legitimate claim or entitlement to the benefit

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10
Q

factors the court considers when determining the procedures required under DPC when a person faces deprivation of a protected benefit

A
  • the importance of the individual interest
  • value of specific safeguards to that interest
  • government’s interest in efficiency
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11
Q

what standard of review is usually applied when a law involving a fundamental right is challenged

A

strict scrutiny and the gov has burden of proving the law is necessary

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12
Q

when gov classification intentionally discriminates on the basis of gender or legitimacy, the classification will be found unC unless the gov can prove the classification is at the least

A

substantially related to an important gov purpose

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13
Q

if gov action is challenged under the DPC or EPC and no fundamental right or suspect classification is involved, the law will be upheld unless…

A

it is arbitrary or irrational (rational basis standard)

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14
Q

required for federal court jurisdiction

A
  • real, live controversy
  • harm or an immediate threat of harm
  • concrete stake in the outcome
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15
Q

for P to have standing to bring an action in federal court, what is required

A

injury in fact, causation, redressability

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16
Q

the SC can review a decision from the highest court in a state if

A

the state court decision turns on federal grounds

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17
Q

federal courts have judicial power over cases and controversies involving…

A
  • a case arising under the C, laws, or treaties of the US
  • case between citizens of different states
  • case in which the US is a party
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18
Q

federal taxes must be ____ among the states

A

uniform

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19
Q

congress may spend to achieve any public purpose that does not…

A

violate the C

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20
Q

congress’s commerce power extends to…

A

intrastate activity that is economic and has a substantial effect on ISC

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21
Q

take care clause

A

provides the president shall take care that the laws be faithfully executed

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22
Q

the president lacks the power to declare war but may…

A

unilaterally commit troops in actual hostilities

23
Q

in determining whether gov action is valid under the establishment clause, courts will usually consider whether…

A
  • action has a secular purpose
  • the action has a primary effect that neither advances nor inhibits religtion
  • the action does not produce excessive gov entanglement with religion
24
Q

the free exercise clause prohibits the courts from…

A
  • assessing the veracity of a particular religion’s belief

- BUT a court may assess the sincerity of a person’s religious beliefs when relevant to a particular case

25
Q

the 1st A free exercise clause prohibits…

A

gov from punishing conduct just because it is religious

26
Q

under the commerce clause, congress can adopt laws discriminating against…

A

ISC and so can states if authorized by federal law

27
Q

if congress has not enacted laws regarding the subject, a state gov may regulate local aspects of ISC if…

A

the regulation does not discriminate against out of state competition and does not unduly burden ISC

28
Q

the “market participant” exception, which allows a state to favor its own residents in ISC when the state itself acts as a participant in the market is an exception to…

A

the dormant commerce clause

29
Q

a law or gov program that prefers one religious sect over other probably will be held invalid unless it can be shown that it is…

A

necessary to serve a compelling gov interest

30
Q

regulations of core political speech are upheld if they meet the ____ standard

A

strict scrutiny

31
Q

according to current SC precedent 1st A free exercise prohibits the gov from punishing conduct just because…

A

it is religious

32
Q

regulations of core political speech are upheld if the government can show that they are…

A

necessary to achieve a compelling gov interest

33
Q

in determining whether gov action is valid under the establishment clause, courts consider whether…

A
  • the action has a secular purpose
  • the action does not produce excessive gov entanglement with religion
  • the action has a primary effect that neither advances nor inhibits religion
34
Q

a law or gov program must be ______ if it includes a preference for some religious groups over others

A

necessary to serve a compelling gov interest

35
Q

if the limitation on 1st A activities is severe, it will be upheld if it only if…

A

narrowly tailored to achieve a compelling interest

36
Q

a law adopted under the enabling clause in section 5 of 14th A will not be upheld unless congress can point to

A
  • a history of state violation of already recognized rights AND
  • the law is at least congruent and proportional to preventing or remedying the violation
37
Q

the 14th A prohibits ____ from depriving any person of life, liberty or property without due process and equal protection

A

states

38
Q

15th A prohibits the states and federal gov from denying the right to vote to any citizen on the basis of…

A

race, but generally is inapplicable to private conduct

39
Q

factors a court will consider in determining the type of procedures required under DPC

A
  • importance of the individual’s interest that is involved
  • value of specific procedural safeguards of the individual’s interest
  • gov interest in fiscal and administrative efficiency
40
Q

factors a court will consider in determining whether legislation is valid under the K clause

A
  • substantially impairs a party’s rights under an existing K
  • serves an important and legitimate public interest AND
  • a reasonable and narrowly tailored means of promoting the public interest
41
Q

when the gov takes private property for public use, damages are usually measured by…

A

the fair market value of the property at the time of the taking

42
Q

legislative act that imposes punishment without trial or one or more individuals who either are specifically named or IDed by their past conduct is…

A

a bill of attainder

43
Q

ex post facto law

A

law that retroactively changes the criminal law in a way that deprives an individual, for purposes of punishment, of a right previously enjoyed

44
Q

15th A

A

prohibits gov from denying the right to vote to any citizen on the basis of race

45
Q

a person has a property interest in continuation of a government benefit if the person has a…

A

legitimate claim or entitlement to the benefit

46
Q

when the gov takes private property for public use

A

just compensation must be paid to the former owner

- measure of damages is the loss the owner incurs, rather than the gain the taker receives

47
Q

under strict scrutiny the gov has the burden to prove…

A

the law is necessary to achieve a compelling gov interest

48
Q

if law is challenged under DPC or EPC and no fundamental right or suspect or quasi-suspect classification is involved, the law will be upheld unless…

A

it is arbitrary

49
Q

what standard of review is applied when gov classification is based on gender or legitimacy

A

intermediate scrutiny under which the law will be upheld if it is substantially related to an important government purpose

50
Q

taking requiring just compensation under the 5th A

A

if gov regulation denies a landowner all economic use of his land… BUT regulations that merely decrease the value of property do not necessarily result in a taking as long as there remains an economically viable use for the property

51
Q

gov action that does not contain a sect preference will pass muster under the establishment clause if…

A

it has a secular purpose, its primary effect neither advances not inhibits religion, and it does not require excessive gov entanglement with religion

52
Q

DPC of 5th A

A

person has a liberty interest in the exercise of specific rights provided by the C, including freedom of sppech

53
Q

the mere fact that legislation or gov action has a discriminatory effect is NOT sufficient to trigger…

A

strict scrutiny… there must be intent to discriminate on the part of the gov which can be shown by the discriminatory application of a law or regulation that appears neutral on its face

Barbri (21 decks)

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