Constitutional Law Flashcards
to pass C muster under 1st A, a statute or ordinance that burdens speech based on its content generally must be
necessary to serve a compelling state interest
level of scrutiny applied to non-content based regulations of the conduct related to speech
intermediate standard
to be valid, a time, place, and manner regulation of a limited public forum must be
viewpoint neutral and rationally related to a legitimate government purpose
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
yes, but only against persons engaging in activities that are not C protected
commercial speech under 1st 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
unprotected speech
- fighting words
- speech creating a clear and present danger of imminent lawless action
- obscenity
under the clear and present danger test, speech may be sanctioned whenever it
is directed to producing or inciting imminent lawless action and is likely to produce such action
deprivations of liberty under the DPC
- 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
for DPC purposes, a person will be deemed to have a property interest in continuation of a gov benefit if the person has
a legitimate claim or entitlement to the benefit
factors the court considers when determining the procedures required under DPC when a person faces deprivation of a protected benefit
- the importance of the individual interest
- value of specific safeguards to that interest
- government’s interest in efficiency
what standard of review is usually applied when a law involving a fundamental right is challenged
strict scrutiny and the gov has burden of proving the law is necessary
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
substantially related to an important gov purpose
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…
it is arbitrary or irrational (rational basis standard)
required for federal court jurisdiction
- real, live controversy
- harm or an immediate threat of harm
- concrete stake in the outcome
for P to have standing to bring an action in federal court, what is required
injury in fact, causation, redressability
the SC can review a decision from the highest court in a state if
the state court decision turns on federal grounds
federal courts have judicial power over cases and controversies involving…
- 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
federal taxes must be ____ among the states
uniform
congress may spend to achieve any public purpose that does not…
violate the C
congress’s commerce power extends to…
intrastate activity that is economic and has a substantial effect on ISC
take care clause
provides the president shall take care that the laws be faithfully executed
the president lacks the power to declare war but may…
unilaterally commit troops in actual hostilities
in determining whether gov action is valid under the establishment clause, courts will usually consider whether…
- 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
the free exercise clause prohibits the courts from…
- 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
the 1st A free exercise clause prohibits…
gov from punishing conduct just because it is religious
under the commerce clause, congress can adopt laws discriminating against…
ISC and so can states if authorized by federal law
if congress has not enacted laws regarding the subject, a state gov may regulate local aspects of ISC if…
the regulation does not discriminate against out of state competition and does not unduly burden ISC
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…
the dormant commerce clause
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…
necessary to serve a compelling gov interest
regulations of core political speech are upheld if they meet the ____ standard
strict scrutiny
according to current SC precedent 1st A free exercise prohibits the gov from punishing conduct just because…
it is religious
regulations of core political speech are upheld if the government can show that they are…
necessary to achieve a compelling gov interest
in determining whether gov action is valid under the establishment clause, courts consider whether…
- 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
a law or gov program must be ______ if it includes a preference for some religious groups over others
necessary to serve a compelling gov interest
if the limitation on 1st A activities is severe, it will be upheld if it only if…
narrowly tailored to achieve a compelling interest
a law adopted under the enabling clause in section 5 of 14th A will not be upheld unless congress can point to
- a history of state violation of already recognized rights AND
- the law is at least congruent and proportional to preventing or remedying the violation
the 14th A prohibits ____ from depriving any person of life, liberty or property without due process and equal protection
states
15th A prohibits the states and federal gov from denying the right to vote to any citizen on the basis of…
race, but generally is inapplicable to private conduct
factors a court will consider in determining the type of procedures required under DPC
- 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
factors a court will consider in determining whether legislation is valid under the K clause
- 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
when the gov takes private property for public use, damages are usually measured by…
the fair market value of the property at the time of the taking
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 bill of attainder
ex post facto law
law that retroactively changes the criminal law in a way that deprives an individual, for purposes of punishment, of a right previously enjoyed
15th A
prohibits gov from denying the right to vote to any citizen on the basis of race
a person has a property interest in continuation of a government benefit if the person has a…
legitimate claim or entitlement to the benefit
when the gov takes private property for public use
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
under strict scrutiny the gov has the burden to prove…
the law is necessary to achieve a compelling gov interest
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…
it is arbitrary
what standard of review is applied when gov classification is based on gender or legitimacy
intermediate scrutiny under which the law will be upheld if it is substantially related to an important government purpose
taking requiring just compensation under the 5th 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
gov action that does not contain a sect preference will pass muster under the establishment clause if…
it has a secular purpose, its primary effect neither advances not inhibits religion, and it does not require excessive gov entanglement with religion
DPC of 5th A
person has a liberty interest in the exercise of specific rights provided by the C, including freedom of sppech
the mere fact that legislation or gov action has a discriminatory effect is NOT sufficient to trigger…
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
