LEGL 2700 Chapter 6 Flashcards
what does the original framework establish?
separation of powers
procedure of ratification
the federal government
what did the Bill of Rights accomplish?
safeguards of liberty
safeguards of justice
powers for the states
what did article I establish?
legislative branch
what did article II establish?
executive branch
what did article III establish?
judicial branch
what does separation of powers mean?
balance of power between federal and state governments (federalism)
what is the supremacy clause?
establishes hierarchy of law where we have the US Constitution at the top and then federal law
what is preemption?
application of the supremacy clause where law is invalid because it conflicts with a federal law
what is field preemption?
a topic or area of law is so regulated that it is implied that congress preempted the states from this area (nuclear safety)
what is express preemption?
act of congress itself says the states are preempted
what is the commerce clause?
regulate commerce with foreign nations and among the several states and with the Indian tribes
which case did we discuss where the court invalidated a state law because it unduly burdened interstate commerce?
City of Philadelphia v New Jersey
what are the three categories of interstate commerce?
federal preemption
some federal regulation
no federal regulation
what is the dormant commerce clause?
state law that does not unduly burden interstate commerce is permitted (no federal regulation)
what freedoms does the first amendment give us?
freedom of speech, religion and press
what is included in “speech”?
verbal, written and symbolic
what type of speech is unprotected?
fighting words
obscenity
threatening speech
defamation
what is fighting words?
inciting someone to violence
what is threatening speech?
threatening someone that you’re making them fear for their life
True or False? governments can place reasonable restrictions on legally protected speech?
true – viewpoints neutral and it is not overly broad
For Brown v Entertainment Merchants Assoc., did the court determine that video games were speech?
yes because it has a plot and character development
what did the court decide for Brown v entertainment merchants assoc.?
the law is an unconstitutional violation of the video games merchant constitutional rights
what protection has the Supreme Court interpreted the press clause of the first amendment as providing to the press/media?
Freedom for prior restraints which means you cannot prevent the media from running in advance
what is commercial speech?
freedom of speech protests corporations and individuals
when can the government limit commercial speech?
only when a compelling state interest is at stake
what is substantive due process?
the government must have justification for its actions
what is procedural due process?
there must be proper notice and proper procedures
what is the incorporation doctrine?
the due process clause has been used to incorporate the bill of rights and make provisions applicable to the states
what is equal protection of the law?
the law should not treat people differently without a satisfactory reason
what are the analysis of equal protection claims?
what is the classification?
what level scrutiny applies?
does the government action meet that level of scrutiny ?
what is under minimum rationality/ rational basis?
height, weight, marriage, testing
what is an example of minimum rationality/ rational basis?
mass bd of retirement v Murgia – Court upheld law that required police officers to retire at 50
what is under Quasi- strict scrutiny ?
gender
what is an example of quasi-strict scrutiny?
US v Virginia – Court struck down law excluding women from a state military college
what is under strict scrutiny?
race, national origin, legitimacy
what is an example of strict scrutiny?
Loving v Virginia – court struck down law forcing interracial marriage
what is interstate commerce?
commerce that passes across state lines
what is intrastate commerce?
commerce that stays within a single state
