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Constitutional Law > Constitutional Law II Final > Flashcards

Constitutional Law II Final Flashcards

Notes: Amendments: 1, 2, 5, 9, 10 SYMBOLS: ≠

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1
Q

Exercise of Traditional Governmental Power

State Action Found (5 Cases) vs. Rejected (3 Cases)

A

State Action Found

  • Constitutional Amendment (Reitman: Affirmative Allowance = State Sanctioned Housing Discrimination)
  • Elections/Primaries (Terry: Racism in the Jaybirds Primaries and the Southern Democrats Case)
  • Acting as a City (Marsh: Company Town with Criminal Penalty on Distribution of Religious Info)
  • Judicial Enforcement (Shelley: Covenants in Deeds)
  • Jury Selection (Edmonson: Civil Litigation Litigation)

State Action Rejected

  • Malls ≠ Town Centers (Hudgens: Picketing Retail Store)
  • Licenses ≠ Endorsement (Moose Lodge: Private Club Discrimination)
  • Corporate Charter (Olympic Committee Case)
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2
Q

Governmental Involvement

State Action Found (2 Cases) vs. Rejected (3 Cases)

A

State Action Found

  • Symbiotic Relationship (Burton: Racist Coffee Shop with State Land/Benefits)
  • Excessive Entwinement with Organization (Brentwood Academy: Majority of Public Leaders)

State Action Rejected

  • Substantial Regulation (Jackson: Electricity Utility)
  • Voluntary Organizational Discipline (NCAA: Fired Coach at Behest of Organization)
  • Public Funding (Rendell-Baker: Private School or Nursing Homes)
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3
Q

First Amendment - The Text

Five Prohibited Actions

A

Congress Shall Make No Law:

  1. Respecting an Establishment of Religion, or
  2. Prohibiting the Free Exercise Thereof, or
  3. Abridging the Freedom of Speech, or of the Press, or
  4. The Right of the People Peaceably to Assemble, and to
  5. Petition the Government for Redress of Grievances
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4
Q

Procedural Due Process

Sources and Applicability

A

Fifth Amendment - Federal

Fourteenth Amendment - States (also responsible for incorporating most of the Bill of Rights)

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5
Q

Procedural Due Process Clause Analysis

A
  1. Does PDP Apply? Protected Interests:
    - Life, Liberty, & Property
  2. How Much Process Is Due? Eldridge Balancing:
    - Private Interest
    - Risk of Erroneous Deprivation & Probable Value of Additional Procedural Safeguards
    - Governmental Interest
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6
Q

New Property Interests

Test & Examples (4 Cases)

A

Must Constitute an Entitlement, More than a Unilateral Expectation of a Benefit (Roth)

  • Welfare Benefits (Goldberg: Yes)
  • School Suspension = Yes (Goss: Property and Reputation)
  • Professorship (Roth: No, No Contract; Sinderman: Yes, Implied Contract)
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7
Q

Liberty Interests

Test & Examples (4 Cases)

A

Stigma-Plus Analysis = Affected Reputation and Legal Interest

  • Drunkard Registry + Inability to Buy Alcohol = Yes (Constantineau)
  • School Suspension = Yes (Goss)
  • Shoplifter Registry = No (Paul v. Davis)
  • Law Enforcement = No (Gonzales: Restraining Order & Father-Murderer)
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8
Q

Eldridge Test Outcomes

Three Cases ≠ Goldberg, Ross, or Sinderman

A
  • Corporeal Punishment: Judicial Process = Sufficient (Ingraham)
  • Academic Probation & Appeals = Sufficient (Horowitz)
  • Judicial Recusal & (Major) Campaign Contributions = Recusal Necessary
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9
Q

Substantive Due Process

Fundamental Rights

A 
Fundamental Right = Strict Scrutiny
Proving Non-Textual Fundamental Rights
-Precedent?
-History and Tradition?
-Inherent to the Concept of Ordered Liberty (Some Justices permit looking externally)

Non-Fundmental = Rational Basis

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10
Q

Fundamental Rights

Four Categories & Eight Subparts to Main Category

A 
Travel
Voting
Guns (Heller-US, McDonald-States)
Privacy:
1. Marriage
2. Sexual Relations
3. Contraception
4. Abortion
5. Family Relations
6. Parental Rights
7. Obscene Material
8. Refusal of Medical Treatment (Cruzan)
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11
Q

FR: Parental Rights

A

Choice of Upbringing of Children

  • Meyer: Prohibition of Foreign Language Pre-8th Grade
  • Pierce v. Society of Sisters: Prevented Students from Attending Catholic School
  • Troxel: Forced Grandparent Visitation (Over Mother’s Objection)

Illegitimate Child Adoption (Permissible)
-Walcott: Over Father’s Objection (Post 11 Years)

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12
Q

FR: Contraception

A

Everyone Ability to Choose

  • Griswold v. Connecticut: Married People
  • Eisenstadt: Unmarried People
  • Carey v. Population Services: Minors
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13
Q

Griswold v. Connecticut

A

Reasoning

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14
Q

FR: Abortion (Generally)

Test & Pre/Post Viability Summary

A

Undue Burden Test: Purpose or Effect of placing a Substantial Obstacle in the way of an Abortion Pre-Viability (Balances Woman’s Interest with State’s Interest)

Pre-Viability: Right to Abort (Individual > State)
Post-Viability: Right to Regulate (State > Individual)
-Must Include Health Exceptions for Mother

State’s Legitimate Interest in the Potential Personhood of Fetus does not become Compelling until Post-Viability.

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15
Q

Undue Burdens
Pre-Viability
-Undue Burden (1)
-Valid Restrictions (5)

Post Viability
-2 Notes

A

Pre-Viability
Undue Burdens:
-Notifying Husband/Father

Not Burdens

  • Partial-Birth Abortion (Carhart)
  • Licensed Physicians (Planned Parenthood v. Casey)
  • Provision of Accurate Information/Health Risks (Casey)
  • 24 Hour Waiting Period (Casey)
  • Parental Consent with Judicial Bypass is Constitutionally Questionable (Casey; Hodgon v. Minnesota: Court was/is Divided).

Post-Viability

  • State May Limit/Prohibit
  • Health Exception Required
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16
Q

FR: Family Relations

A

Related persons have right to live together (Moore: Grandsons Moving In)
-Not Fundamental to Unrelated Persons (City of Belle Terre)

17
Q

FR: Marriage

A

Unconstitutional: State Pre-Approval for Child-Supporters (Zamblocki: Interests in Counseling of Obligations and Preventing Further Obligations were not narrow).

18
Q

Fundamental Rights Rejected

A
  • Paternity Presumption ≠ Violative of Biological Father’s Rights (Micheal: He Has None Here)
  • Personal Appearance (Kelley: Grooming Standards for Officers)
  • Euthanasia (Glucksberg: Refusal of Treatment ≠Euthanasia, Dates back to Tort Law)
19
Q

FR: Sexual Relations

A

No Legitimate Interest in Prohibition of Private Sexual Conduct (Lawrence: Sodomy Law)
-O’Connor in Lawrence used Equal Protection, not Substantive Due Process/Fundamental Rights

20
Q

Equal Protection vs. Substantive Due Process

A

Substantive Due Process:

  • Everyone Has This Right
  • Government Cannot Regulate at All

Equal Protection Clause

  • Separation of Two Groups Is Impermissible
  • A “Different” Line Needs To Be Drawn
21
Q

Rational Basis Scrutiny in Equal Protection

A

Test: Constitutional if law is Rationally Related to a Legitimate State Interest.

  • Court looks to any conceivable interest
  • Dislike for a Group is NOT Sufficient: Court Rejected: Hippies & Food Stamps, Gays, Retarded & Zoning

Burden: Plaintiff must show law is Arbitrary or Capricious.

22
Q

Disperate Impact

A

Insufficient to Raise Equal Protection Clause: Tends to Lack an Animus (But Could be Evidence of Intent)

  • Railway Express: Business Owners vs. Advertisers
  • Dukes: Veteran Food Vendors vs. New (Reliance Interest possibility)
  • Fritz: Railroad Retirement Windfall (Congress could believe certain workers deserved it)
  • Nordlinger: Prop 16 in California Upheld
  • Washington v. Davis: Civil Service Officer Tests’ Effect on Blacks
23
Q

Discrimination

Requirement and Three Kinds

A

Requires Proof of Intent to Discriminate

Facial Discrimination (De Jure Segregation)
Discriminatory Application (Brick Laundries and Waived: Anti-Asian)
Discriminatory Motive (Gays, Hippies, Retarded)
24
Q

De Facto vs. De Jure Discrimination

A

De Facto = Permissible (Private Choices: Segregated Communities)
De Jure = Discrimination

25
Q

Intermediate Scrutiny

A

Law is Substantially Related to a Significant/Important Governmental Interest

-Legitimacy and Gender

26
Q

Quasi-Suspect Class: Gender

Test and Constitutional (5) vs. Unconstitutional (2) Cases

A

Discrimination Requires an Exceedingly Pursuasive Justification

Unconstitutional

  • Presumptions (Custody, Administrator Appointment)
  • Education (Military and Nursing Schools)

Constitutional

  • Citizenship Proof (Mothers don’t have to go through a legal process for child, fathers do)
  • Army Draft (Because Women wouldn’t Fight)
  • Male-Only Statutory Rape (Prevention of Underage Pregnancies Justified)
  • Military Benefits (Even though women didn’t get them because they weren’t soldiers)
  • Military Promotion Differences (Women have different career paths….)
27
Q

Quasi-Suspect Class: Illegitimacy

1 Case

A
  1. Must Afford Reasonable Opportunity to Assert Claim on Child’s Behalf
  2. Limitations on Opportunity must be Substantially Related to Interest in Avoiding Litigation of Stale or Fraudulent Claims

-Constitutional: Presumption against Illegitimate for SS Benefits

28
Q

Suspect Class: Alienage

Two Tests

A

Tests: Rational Basis if Relationship to a Governmental Function. Otherwise Strict Scrutiny

Governmental Functions:
-Police, Teachers, Politicans

Unconstitutional

  • Welfare Benefits Durational Requirement (or Citizenship)
  • Flat Ban on Civil Service
29
Q

Equal Protection Analysis

A

I. Applicability of Equal Protection:

  1. Two Groups (or More)
  2. Intentionally
  3. Treated Different

II. Suspect Class (4 Part Analysis)
III. If Not, Fundamental Right
IV. If Not, Quasi-Fundamental Right?

30
Q

Suspect Class Four Part Analysis

A
  1. Qualification
    A. Discrete and
    B. Insular
    C. Minority
  2. History of Discrimination
  3. Lack of Political Power
  4. Immutable Characteristic Unrelated to Merit
31
Q

Quasi-Fundamental Rights

A
  • Right important enough to the SYSTEM that if granted to some must be given to all.
  • Strict Scrutiny
32
Q

Equal Protection and Voting

A
  • Substantial Equity (1 Person=1 Vote)

- Plainly Legitimate Sweep of Law (like Voter ID laws with exceptions)

Constitutional Law (3 decks)

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