Quiz 2 Content (Test 1)

Question 1

what are the 4 primary sources of law?

Answer 1

constitutional, statutory, administrative, common law

Question 2

federalism

Answer 2

• compromise
• 10thA: “all powers that have not been given to fed gov in the constitution belongs to the state”

Question 3

system of checks & balances

Answer 3

we don’t want a king with full power so instead we have 3 branches (legislative, executive, judicial)

Question 4

judicial review

Answer 4

• part of checks & balances
• the ability of the Court to declare a Legislative/Executive act in violation of the Constitution
• the power of the USSC to review laws/actions from Congress/President to determine whether they are constitutional
• established this doctrine in Marbury v Madison

Question 5

supremacy clause

Answer 5

• state supremacy
• supremacy gave the STATE judges the power of JUDICIAL review (authority is only state laws)
• “this constitution & the laws of the US… shall be the supreme law of the land”
• “judges in every state shall be bound”

Question 6

Marbury v Madison

Answer 6

• write of mandamus = court order to do your job (judiciary act gave USSC this power), USSC has power over fed law
• courts have the power to strike down laws & statutes that they find to violate the Constitution
• judicial review of fed law

Question 7

judicial restraint

Answer 7

• a court doesn’t sit in judgment of the motives or wisdom of legislators, nor will it hold a statute “invalid” merely because it’s unwise/unfair
• imposes on judges, key part of judicial review
• you must presume that the law is valid
• only determine if it went too far
• job is NOT to REWRITE it, job is to see if it’s CONSTITUTIONAL

Question 8

what are the 2 theories of constitutional interpretation?

Answer 8

strict constructionist & living constitution/activists

Question 9

strict constructionist

Answer 9

• view that looks just to the constitution
• if the words aren’t in it, can’t do it
• they look JUST at the LANGUAGE

Question 10

living constitution/activists

Answer 10

• views that if the language isn’t in the constitution, look at it as a WHOLE (other info, trends, etc)
• one that EVOLVES, changes over time, adapts to new circumstances, without being formally amended

Question 11

interstate commerce

Answer 11

regulate commerce BETWEEN the states

Question 12

Gibbons v Ogden

Answer 12

• state law in NY gave rights to biz’s, conflicted with the CC
• Ogden sued Gibbons
• USSC created test: intrastate law (commerce in ONE state), ask “does that state law substantially affect interstate commerce?”
• USSC said this case does
• case was decided according to the CC; argued that the state of NY could NOT grant exclusive rights to navigate waterways

Question 13

Wickard v Filburn

Answer 13

• growing wheat, limit as to how much farmers could make/sell
• farmer Filburn argued that commerce laws deals with commerce not PERSONAL, so he can grow however much he wants for personal use
• USSC said it would be a problem for biz if everyone grew their own wheat, so said they have the right to control every farmer’s wheat
• decision dramatically INCREASED regulatory POWER of fed gov

Question 14

US v Lopez

Answer 14

• gun law in DC (fed law): can’t bring weapon on school grounds
• NOT a commerce law… a criminal activity
• Lopez challenged that only states can make the laws
• USSC agreed it was a states problem (criminal); gun possession is not an economic activity that has any impact on interstate commerce
• 1st time they agreed that Congress WENT TOO FAR under the CC

Question 15

Gonzales v Raich

Answer 15

• someone growing their own medical mj
• fed law didn’t like it, banned use & growth
• Gonzales appealed, said it’s in state jurisdiction and it was just for personal use
• USSC said what happens if you grow more than you can use? You end up selling it… which will end up being commerce issue
• ruled UNCONSTITUTIONAL
• CONTRADICTED Lopez case before
• under the CC, Congress may criminalize the production& use of homegrown mj even if state law allows its use for medicinal purposes

Question 16

Patient Protection & Affordable Act (Obamacare)

Answer 16

• not about the CC
• individual mandate said if you don’t get insurance, you have to pay a penalty
• they said it was an “inactivity” NOT on commerce grounds, but about tax (which Congress controls)

Question 17

full faith & credit clause

Answer 17

• requires states to honor each other’s laws & court decisions
• ex: out-of-state drivers license, can drive across country
• legal systems remain the same across borders
• an ABSOLUTE right

Question 18

privileges & immunities clause

Answer 18

• ensures that when an individual visits another state, they have the SAME RIGHTS as the residents of that state
• ex: MA resident can go to UVA
• NOT an absolute right (treated like a VA student, but must pay more)
• prevents a state from discriminating against citizens of other states

Question 19

bill of rights

Answer 19

• meant to apply to protections against the FED gov, not meant to protect citizens from STATE govs
• amendments 1-10

Question 20

1st amendment

Answer 20

freedom of religion, speech, press, assembly

Question 21

1stA: religion, (establishment & exercise)

Answer 21

• free to practice whatever, ABSOLUTE (gov can’t prohibit you from establishing your own religion)
• exercise is NOT absolute… when you start acting on your beliefs, gov now has a say
• covers religious practices
• if the gov has a COMPELLING INTEREST to overcome this practice, they may
• religion is not a license to engage in what society finds to be EXTREME BEHAVIOR

Question 22

Wisconsin v Yoder

Answer 22

• freedom of religion
• Amish children taken out of school to farm
• state said they need to be educated
• court said the Amish is allowed to take them out after 8th grade, so respected their religion, CONSTITUTIONAL

Question 23

Employment Division v Smith

Answer 23

• freedom of religion
• employees found smoking mj (ingested peyote for Native American religious ceremony)
• got fired
• court had compelling interest to stop behavior, so UNCONSTITUTIONAL

Question 24

Burwell v Hobby Lobby Stores

Answer 24

• freedom of religion
• if employer covers insurance, Obamacare said the insurance policy had to cover birth control
• HL stores said bc is against their Christian religion, claimed it violated their free exercise clause and the Religious Restoration Act
• court agreed, no compelling interest to force you to go against your religion, so HL didn’t have to provide bc, CONSTITUTIONAL

Question 25

Masterpiece Cakeshop v CO Civil Rights

Answer 25

• freedom of religion
• 2 gay men wanted a wedding cake, baker refused, said gay was against religion
• court initially acted hostile towards baker, but then said he didn’t receive neutral treatment and that we had to respect people’s religion
• they did not rule whether it was constitutional or not to make the cake, just said needed to RESPECT the RELIGION

Question 26

Federal Alien & Sedition Act

Answer 26

• freedom of speech
• made it a crime to say/write anything false, scandalous, malicious against the gov
• Adams passed it bc ppl were critical of him
• later repealed

Question 27

Federal Sedition Act/Schenk v US

Answer 27

• freedom of speech
• during WW1
• law criminalized to say/write anything disloyal, profane, scurrilous, abusive about US gov, military, constitution, flag
• didn’t want ppl talked out of joining war
• several convictions
• Schenk told ppl not to sign up for war, arrested for violating, took it to court, they said it’s NOT an absolute right
• at times of war, your personal rights get put on the back burner… “clear & present danger test”
• we could’ve passed out leaflets not during war
• said there were limitations to 1stA
• UNCONSTITUTIONAL

Question 28

Federal Alien & Registration Act (Smith Act)

Answer 28

• freedom of speech
• more than 2,000 convictions
• during WW2
• can’t talk smack about gov, drafts
• made it a crime to organize groups advocating, suggesting, any overthrow of gov during war

Question 29

Dennis v US

Answer 29

• freedom of speech (under Smith Act)
• communist party convicted under this act for advocating the overthrow of the US gov
• court said there was a clear & present DANGER
• asks if invading the freedom of speech is necessary to avoid the danger

Question 30

Yates v US

Answer 30

• freedom of speech (under Smith Act)
• hold that simply the teaching of abstract ideas was not the same as educating a conspiracy (communists)
• OVERRULED Dennis v US
• you have to be ADVOCATING for it to be criminal
• drew a distinction between the “advocacy & teaching of forcible overthrow as an abstract principle” and the “advocacy and teaching of concrete action for the forcible overthrow of the gov”
• held that 1stA protected radical & reactionary speech, unless it posed a “clear & present danger”***

Question 31

Brandenburg v Ohio

Answer 31

• freedom of speech (under Smith Act)
• KKK convicted of using clear & present danger test of Schenk, made violent speech
• court reversed Schenk, “just because there may be a clear & present danger… not enough” to restrict 1stA
• must lead to “IMMINENT” test lawless action
• so now if you say “fire” in a crowded theater, allowed if deemed imminent (if it’s actually about to happen)
• CONSTITUTIONAL

Question 32

Chaplinsky v NH

Answer 32

• fighting words doctrine
• dealt with a state law restricting speech
• made it illegal for anyone to say anything annoying/offensive in the street
• court created “fighting words of exception” (there are certain well-defined & narrowly limited classes of speech that are NOT protected by 1stA because they inflict violence & disturb the peace)
• no right to say these under freedom of speech: the lewd & obscene, defamatory, fighting words

Question 33

US v O’Brien

Answer 33

• symbolic speech
• O’Brien burned his draft card protesting the war
• court said “when a law prohibits conduct that combines speech & nonspeech elements if there is a sufficiently important governmental interest this can justify what the court found incidental limitations on an individuals’ 1stA rights”
• yes, he was protesting, but can he be prohibited for “nonspeech” acts?
• court said NOT allowed to burn draft card, UNCONSTITUTIONAL

Question 34

Cohen v California

Answer 34

• symbolic speech
• court OVERTURNED US v O’Brien conviction, said he was allowed to wear a jacket that said “fuck the draft”
• “one man’s vulgarity is another man’s lyric”
• CONSTITUTIONAL

Question 35

Texas v Johnson

Answer 35

• flag burning controversy
• protesting, burned flag, fined & jailed, they appealed conviction, said symbolic is ALLOWED (like the jacket)
• court said no compelling interest to stop them

Question 36

Federal Flag Protection Act

Answer 36

• flag burning controversy
• congress mad about last case, said it was CRIMINAL to burn flag

Question 37

US v Eichman

Answer 37

• flag burning controversy
• court shot back at congress, REAFFIRMED Texas v Johnson ruling
• told congress they have a right to burn flag under 1stA (but not draft card)

Question 38

NY Times Co. vs US

Answer 38

• freedom of the press
• NYT wanted to print the leaked pentagon papers (documents made gov look bad)
• court said the press has 1stA rights to publish any info unless it’s done w malice
• CONSTITUTIONAL

Question 39

Boy Scouts of America v Dale

Answer 39

• freedom of assembly
• boy scouts excluded gay scout leaders
• court said group had no right, anyone who wants to participate should be allowed regardless
• UNCONSTITUTIONAL, BUT…
• social pressure from public caused them to change this ruling

Question 40

2nd Amendment

Answer 40

• militia or right to arms
• “a well regulated militia, being necessary to the security of a free state the right of the people, to keep & bear arms shall not be infringed”
• originally written because founding fathers were worried about other countries, no US army at this time, so created amendment for militia to protect land
• 2 different theories/interpreations

Question 41

militia clause (1st interpretation of 2ndA)

Answer 41

• primary purpose of 2ndA is simply the assurance that individuals have the right to form a MILITIA
• whatever problems used to be about/initial case rulings

Question 42

right to arms (2nd interpretation of 2ndA)

Answer 42

• primary purpose was the right to BEAR ARMS
• overlook the militia part… it extends past just that
• how people look at it NOW

Question 43

US v Cruiskshank

Answer 43

• 2ndA
• IL law in Chicago that prohibited possession of handgun
• law was challenged as a violation of 2ndA
• court said 2ndA does NOT prohibit STATES from taking arms, only fed gov can do that
• CONSTITUTIONAL for IL to have this law

Question 44

Presser v Illinois

Answer 44

• 2ndA
• presser belonged to a militia that had a parade where they carried rifles & swords… violated an IL statute that prohibited unlicensed display of weapons & militia
• court said STATES can do whatever they want, so it was CONSTITUTIONAL (not a violation of 2ndA)

Question 45

US v Miller

Answer 45

• 2ndA
• law that said you can’t have a sawed-off shotgun
• Miller convicted under FED law
• court said “you don’t need a sawed-off shotgun for a militia”
• said law was CONSTITUTIONAL
• gov had interest in getting this type of gun off street

Question 46

District of Columbia v Heller

Answer 46

• 2ndA
• landmark decision
• DC law forbid owning handgun (can have other guns that are locked up & unloaded)
• ***DC laws are always considered federal
• court said this was unconstitutional, “the right to bear arms for self defense IN YOUR HOME is a FUNDAMENTAL right”
• 1st case that said 2ndA wasn’t just abt militia (transition from 1st theory to 2nd)
• still restrictions on gun laws, but court didn’t make them clear

Question 47

McDonald v Chicago

Answer 47

• 2ndA
• when you have any provision of the BoR that protects a right that is FUNDAMENTAL, applies equally to the STATE & FED govs
• incorporated 2ndA to 14thA

Question 48

NY State Rifle v Bruen

Answer 48

• 2ndA
• NY law that if you want to carry in public, need a license & proper cause to carry outside the home for self defense (open or concealed)
• court said it’s a FUNDAMENTAL right in the home… but should also be OUTSIDE home
• ruled NY law UNCONSTITUTIONAL