FINAL EXAM Flashcards
Identify the context of this quotation: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” What are two possible ways that this language could be
interpreted?
Heller. Could mean that those prohibitions are constitutional, or that the Court isn’t saying either way
What are the similarly-named cases (a) from
1851, which could have supplied an alternative foundation for the result in Dred Scott, without getting into the citizenship of African-Americans or the constitutionality of the Missouri Compromise, and (b) from 1880, which gave an important explanation of the principle expressed in the Fourteenth Amendment, which overruled Dred Scott?
Strader and Strauder.
What case from 1833 involves the
interpretation of constitutional clauses using
the passive voice?
Barron (interpreting passive voice in 5A & I/9)
How can the distinction between “this
Constitution” and the rest of the Preamble be used to support the interpretive move in Heller, in light of Article VI?
Article VI makes “this Constitution” binding,
not the purposes, fitting with Heller making the operative provision binding, even if it
doesn’t fit with the 2A preamble.
What cases refuse to overrule earlier cases
after (a) 137 years, (b) 58 years, and (c) 19
years? What cases overrule others after (a) 1
year, (b) 17 years, and (c) 58 years?
McDonald, Bolling, Casey, Knox (or Jones &
Laughlin), Lawrence or Malloy, Brown.
Identify the context of this quotation: “Our
Nation’s history, legal traditions, and practices thus provide the crucial ‘guideposts for responsible decisionmaking’ that direct and restrain our exposition of the Due Process Clause.” Does the Court agree today?
Glucksberg; no—Obergefell disavows, at least for “marriage and intimacy” cases.
What case disappointed those who were
hoping for an analogy of the form “Reed is to Craig as Romer is to ____”?
Windsor, refusing to raise level of scrutiny for sexual-orientation discrimination, as CA2 had done.
What does Roe say about arguments for
abortion rights that (a) are consistent with fetal personhood, or (b) deny fetal personhood?
Arguments like (a) (e.g., Thomson) are
completely ignored, because the Court says
personhood requires abortion prohibition.
The Court is agnostic on arguments like (b)
(e.g., Tooley).
Identify the context of this quotation: “[T]he
law need not be in every respect logically
consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.” Name two earlier cases that disagree with this general approach.
Williamson; different approach in Lochner
and Nebbia.
How do the majority and dissent in Heller use Miller differently?
The Heller majority notes that the case would have been much easier under the Heller dissent’s interpretation, because the gun-owner in that case, Miller, was obviously not part of a state-run militia. The Heller dissent generalizes from Miller’s reasoning that a relationship of the gun to a militia was required to a general requirement of a relationship between a gun-owner and a militia.
What 1960s incorporation cases change earlier answers to whether a right in the Bill of Rights is applied to states? What cases change or refine the earlier question, i.e., the mode of analysis used to decide such issues?
Malloy overrules Adamson and Twining;
Benton overrules Palko; Mapp overrules
Wolf; Duncan overrules Maxwell; these are all changed answers. One case refines the
question: Duncan refines the Palko “implicit in the concept of ordered liberty” analysis into one based on tradition.
What ratio of states did McDonald regard as
important to its analysis? How does that fact undermine one possible argument that Lochner was properly decided in 1905, but would not be properly decided the same way today?
McDonald cares about 22/37 in 1868, rather
than 44/50 today. That prevents us from saying that there was a consensus in favor of laissez-faire in 1905, but there no longer is one; if the 44/50 ratio doesn’t matter, it doesn’t matter whether there is a present consensus.
How can Dred Scott be used to support
Brown and attack Plessy on originalist principles?
Like Brown but not Plessy, Dred Scott sees
that racial-separation laws imply inferiority.
What provisions adopted in 1791 and 1868
might directly support the holding in Bolling?
5A due process clause and 14A citizenship
declaration.
Identify the context of this quotation: “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” How is this case generally regarded today?
Korematsu. High prestige on doctrine, low
prestige on result.
What two, or perhaps three, circumstances allow an exception to the usual rule for the level of scrutiny for alienage classifications?
Significant interest (Foley), federal government (Mathews), maybe illegal aliens (Plyler).
When was the last time the Court answered an incorporation question with a full “no”? When has the Court answered “partly”?
1947, Adamson; said partly in Apodaca in
1972 and Wolf in 1949.
Was Justice Blackmun’s position on the existence of a constitutional duty to protect consistent between 1973 and 1989?
Yes—Roe assumes duty to protect, because
personhood of fetus requires state to ban
abortion. DeShaney disagrees, but Blackmun dissents.
Identify the context of this quotation: “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.” Which way does that cut in Obergefell?
From Windsor; if federal government can’t
take position on SSM contrary to states,
Obergefell claim fails, but if it’s not essential to holding, might still be OK to nationalize SSM.
What do cases from 1857 and 2008 say about the limits placed on constitutional interpretation by framers’ originally-understood applications?
Binding, because framers couldn’t assert
principles inconsistent with their actions (Dred Scott), not limited to them, e.g., muskets (Heller).
How did the Court’s attitude toward the constitutionality of implications of racial inferiority change between 1880 and 1896?
It didn’t. Plessy agreed with Strauder that they are unconstitutional, but said segregation wasn’t such an implication.
Explain the context of this quotation: “We do
not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.” How is this claim in tension with the cases on which this case relies?
Griswold’s reaffirmation of rejection of
Lochner, which is odd, since it relies on
Pierce, which comes from Meyer, which relies centrally on Lochner.
How did the Court’s standard for incorporation from 1937 get changed in 1968 and 2010?
Palko’s “implicit in concept of ordered liberty” gets understood to mean “required by Anglo-American legal tradition” in Duncan, then restricted to “required by American legal tradition” in McDonald.
What differing uses did the majority and dissent in Heller make of Miller?
Scalia says on dissent’s reading, made no sense to talk about status of gun, since Miller the man wasn’t in militia; Stevens says relationship of person to militia should match relationship of gun to militia.
If “a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,” what is that called? What case adopts this standard?
“Undue burden,” Casey.
How can Dred Scott be used to support Bolling and Brown?
The court infers lack of citizenship from lack
of equality manifested in separation laws. This (a) supports Brown, because the Court
recognizes that separation connotes inequality, and (b) supports Bolling, because citizenship entails equal citizenship, and the citizenship declaration of 14A/1 binds Congress.
What feature of equal-protection jurisprudence has been criticized by Justices Marshall, Stevens, Burger, and Scalia?
Tiers of scrutiny.
How did the Court’s attitude toward judicial policy-making change between 1905 and 1976?
In Lochner in 1905, the court was willing to
assess the reasonableness of lots of regulations, but in Washington v. Davis in 1976, the court refused to adopt a disparate-impact test because it was unwilling to do so.
What two cases from 1896 were reaffirmed or overruled on the same day in 1954?
Gibson, saying E/P doctrine applies to feds,
reaffirmed in Bolling; Plessy, saying separate can be equal, overruled in Brown.
As of 1947, which parts of the Bill of Rights had been incorporated against states?
5A takings and all of the 1A.
How long after Slaughterhouse did the Court start using substantive due process to scrutinize the reasonableness of regulations?
Just 4 years, in Munn.
How is Apodaca in tension with McDonald and with Justice Black’s approach to the Fourteenth Amendment?
Apodaca says 6A jury right is only partially
incorporated. McDonald disagrees with that
approach with respect to the 2A. Justice Black advocated total incorporation, which is obviously inconsistent with Apodaca.
After 1937, are there any elements of constitutional protection for economic liberty left?
Still contracts-clause limits, 5A takings, 1A
commercial speech, SDP limits on punitive
damages.
After the Court acquiesced in the New Deal,
what did the Court say about the standard to
be applied in normal cases where someone
complains that a legislature has invaded his
economic liberty?
Ordinary standard under Carolene Products
upholds legislation if it has a rational relation to a legitimate state interest.
How has the Supreme Court’s assessment of
sex discrimination under the Fourteenth
Amendment changed from 1873 to 1923 to
1937 to 1971 to 1976?
Bradwell in 1873, may ban women lawyers
under P/I. Adkins in 1923, no different
minimum wage under SDP. West Coast
Hotel in 1937 overrules Adkins. Reed in
1971, sex discrimination in trustees struck
down under EPC rational basis. Craig in
1976, 3.2-beer-age discrimination struck down under EPC intermediate scrutiny.
What are the three basic sorts of arguments for the result in Griswold?
Policy (doesn’t promote any interest, White),
tradition (not enforced for long time, unusual
law, Harlan), purpose (penumbras, Douglas).
