Constitutional Law II

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Constitutional Law II
2012-04-30 13:34:14
Spring 2012

Spring 2012 - Professor Eastman
Show Answers:

  1. What phrase in the constitution prohibits states to make law that retroactively apply to contracts?
    • the same phrase that prohibits them from making ex post facto laws
    • no state shall pass a law “impairing the obligation of contracts.”
    • found in Article 1 section 10 --> limit on states' powers
  2. Sturges v. Crowninshield
    Overturned NY bankruptcy law that retroactively applied to contracts
  3. Ogden v. Saunders
    A bankruptcy law that applied to only future contracts was upheld
  4. Fletcher v. Peck
    Contracts Clause applies to contracts for which the state is a party
  5. Dartmouth College v. Woodward
    when private monies were invested in a public charter, changes in the charter were governed by the Contracts Clause
  6. Charles River Bridge v. Warren Bridge
    Ambiguity in contracts were resolved in favor of the public interest
  7. United States Trust Co. v. New Jersey
    • A state’s impairment of its own contract must be shown to be reasonable and necessary to serve an important public purpose
    • Applicable to contracts in which the state is a party and those that are purely private
    • State is deferred less to on its own contracts
  8. Stone v. Mississippi
    The state could not bargain away its ability to decide what criminal laws it did or did not have
  9. What was the regulation in Blaidsdell, and was it ruled constitutional?
    Temporary restriction of creditors remedies during the great Depression was ruled constitutional
  10. When is the Blaisdell test applied?
    when the state is acting as a regulator instead of a market participant
  11. What factors did Blaidsell and its subsequent cases look to to determine whether a restriction on contracts was constitutionally permissible?
    • Emergency
    • Legislation addressed to legitimate end – basic interest of society
    • The relief granted was reasonable given the situation
    • The conditions were not unreasonable
    • Legislation was temporary
  12. What law was in question in Allied Structural Steel v. Spannus?
    A MN law required private companies to fund pensions that had not yet vested (according to the employment/retirement fund contract), in effect, the law forced the pension to vest earlier than the private contract specified
  13. Why was the law in Allied Structural Steel v. Spannus found to be unconstitutional? What was the test used?
    • The court used the test set forth in Home Building:
    • - the field was not already heavily regulated
    • - the regulation was not temporary
    • - it severely impaired the contractual relationship (nullified express terms of the company's contractual obligations)
    • - the narrow focus of the law demonstrated no broad public policy concern
  14. In what cases were laws imparing contracts found to be constitutional because the fields were already heavily regulated, and what were the fields in question?
    • - Energy Reserves Group v. Kansas Power and Light Co.
    • - Exxon Corp. v. Eagerton
    • - General Motors Corp. v. Romein- coordination of benefits for injured or disabled workers
  15. The Federal Government is not limited by the ______ clause, but is limited in a less searching manner by the _____ _____ Clause.
    Contracts; Due Process
  16. What is the text of the Takings clause, and where is it found?
    nor shall private property be taken for public use without just compensation; Amendment V
  17. What are two types of takings and their descriptions?
    • - regulatory takings (deprivation of all economic value)
    • - physical takings
  18. How is it determined whether a taking is permissible?
    • - It must be for a legitimate purpose
    • - The taking must not be an irrational means for accomplishing that purpose
  19. How is imminent domain power implied?
    • - States - police power
    • - fed - necessary and proper clause (and other enumerated powers - building of post roads, etc.)
  20. What are three purposes for which taking private property has been found to be permissible?
    • - public ownership (hospitals, roads, military bases)
    • - available for public use via common carrier (railroads, public utility, stadium)
    • - "public purpose" (hazy category)
  21. What was the purpose claimed in Kelo v. New London to justify the taking?
    economic development
  22. What are two other legitimate purposes for takings set forth in Midkiff and Berman?
    • eliminating blight
    • eliminating oligopoly
  23. What are the three categories of takings allowed, according to O'Connor's Dissent in Kelo?
    • Private lands taken for public ownership
    • Private lands taken for public use (i.e. common carrier)
    • Private lands taken for a public purpose, but given to another private party
  24. Pennsylvania Coal Co. v. Mahon
    taking the "stick" of subsidence rights took the police power too far
  25. Penn Central Transp. Co v. City of New York
    • NYC's prevention of building a skyscraper over a historical landmark was held to be OK based on:
    • Economic impact of the regulation on the claimant (The extent to which the regulation interfered with the owner’s investment related expectations)
    • Character of the governmental action
    • § Physical
    • § Non-physical
    • Versus:
    • Why the taking is being done - Is it promoting the general health, safety, morals, welfare? - balance w/economic impact on the owner
  26. What is the most suspect part of the Penn Central balancing test?
    that the non-taking was for the "public good" rather than to prevent harm
  27. May a regulation burden the use of land which constitutes a nuisance?
    Yes - the bundle of property rights never includes a use that is a nuisance
  28. What rule is applied when a regulation puts a burden on a use of land which is not a nuisance?
    If it works too great a burden on property owners, the regulaton cannot go forward without compensation.
  29. Two types of categorical takings in Lucas v. South Carolina Costal Council
    • physical
    • deprivation of all economic benefitc
  30. What three factors in Lucas were used to determine whether the use was a nuisance?
    • · The degree of harm to public lands and resources or adjacent private property
    • · The social value of the claimant’s activities
    • · The activities’ suitability to the locality in question
  31. What is the most common modern test for a taking?
    the diminution in value test:

    • § The economic impact of the regulation on the claimant
    • § The extent to which the regulation has interfered with distinct investment-backed expectations
    • § Character of the governmental action (physical taking or regulatory taking)
    • -The benefit to the public
  32. In what three ways may nuisance be proven?
    • - If a private suit for nuisance could be brought
    • - If the state could have brought suit for public nuisance
    • - If the rule against the use (as a nuisance) was traditional
  33. What is the issue with Scalia's "all economic value" statement in Lucas?
    because it is rare that all economic value will be taken from any property
  34. How and why did the Court rule in Tahoe-Sierra?
    That a temporary restriction on property use is subject to a Penn Central balancing test.
  35. What is the latest law on takings?
  36. The rule from Nollan and Dolan
    • there must be a sufficient nexus between the government purpose and the purported regulatory taking
    • there must be rough proportionality between the harm sought to be avoided and the exaction
  37. When are takings claims ripe?
    Takings claims are not ripe until state fails in a final decision to provide adequate compensation for the taking.
  38. The Fourteenth Amendment applies only to _________ action.
    State (as demonstrated in the Civil Rights Cases)
  39. Batson
    A prosecutor may not use preemptories for racial purposes
  40. the test from Edmonson
    • The extent to which the actor relies on governmental assistance and benefits
    • Whether the actor is performing a traditional governmental function
    • Whether the injury caused is aggravated in a unique way by the incidents of governmental authority
  41. Shelley v. Kraemer
    judicial enforcement of a racially restrictive covenant would have constituted state action (or would have constituted the state's affirmation of private discriminatory action); peculiar to this circumstance
  42. Johnson v. California rule for determining whether preemptories were used for a racially discriminatory reason?
    • Burden on plaintiff to make Prima Facie case that there was discrimination (simple statistics)
    • Burden on government to give a race-neutral reason for the discrimination
    • Is the (reason offered above) purely pretext
  43. Marsh v. Alabama
    There is a cause of action under the 14th amendment when a private entity is acting “in loco government”
  44. Smith v. Allwright
    Political parties may not have racially discriminatory primary elections
  45. NCAA v. Tarkanian
    NCAA was a private actor; no cause of action for discrimination
  46. What are two situations in which the state has created a "special relationship" with an individual that creates an affirmative obligation of the state to the individual?
    • Prisioners incarcerated
    • Patients involuntarily committed
  47. What is the rule from DeShaney?
    The state is not obligated to protect you from the actions of others (under the due process clause) in most situations, rather, is only obligated to protect you against itself
  48. Due Process clause of 5th Amendment
    • Applicable only to Federal Government
    • no person may be deprived of life, liberty, or property without due process of law
  49. Due Process Clause of 14th Amendment
    • only applicable to the states
    • no state shall deprive a person of life, liberty or property without due process of law
  50. Board of Regents v. Roth - What was the determining factor for the majority in determining whether there was a property interest in the job?
    The right to the job hadn't vested in the professor; he was at-will, not tenured
  51. Are property interests always tangible?
  52. What are some attributes of property interests from Roth?
    • more than an abstract need or desire for it
    • legitimate claim of entitlement
    • reliance
  53. What Constitutional right did Douglas, in Dissent, claim was at stake in Roth?
    The First Amendment Right to free speech
  54. Bi-Metallic Investment Co. v. State Board of Equalization regarding due process
    deprivations of property cannot result from the legislative process (the legislative process is the process that is due)
  55. Goldberg v. Kelly requirements for due process
    • Notice
    • Opportunity to respond
    • Unbiased trier of fact
    • An attorney?
  56. Why was the benefit in Goldberg determined to be a property interest?
    Because welfare was so necessary to its recipients
  57. BMW of North America v. Gore: In determining whether the award of punitive damages is so high as to be unconstitutional:
    • The degree of reprehensibility of the defendant’s conduct
    • The disparity between the harm or potential harm and the award of the punitive (1:10 rule)
    • The difference between the punitive damages and any potential criminal liabilities (had the case been prosecuted in criminal court
  58. NY Times v. United States (Pentagon Papers)
    It was not proper in this situation for a prior restraint, however, six justices held that there might be some situations in which a prior restraint might be Constitutional
  59. Per NY Times v. United States, when may a prior restraint be Constitutionally permissible?
    When imminent harm will result.
  60. Is the freedom of "the press" vested in the media?
    no - the freedom is vested in individuals, not an institution
  61. Collateral bar rule
    even if an injunction is unconstitutional, one who violates the injunction can still be prosecuted for the violation of that injunction
  62. What are the three types of forums, and what type of review are they entitled to?
    • Traditional Public Forum - strict scrutiny
    • Limited/Designated Forum - intermediate scrutiny
    • Non-public forum - rational basis (sort of)
  63. The restriction in Hill v. Colorado was determined to be a ______________ restriction.
    resonable time, place, or manner
  64. Why was the restriction on student publications in Rosenberger v. Rector unconstitutional?
    because the newspaper was a limited public forum, and the restriction was a viewpoint restriction
  65. What kind of forum is a residential neighborhood?
    A traditional public forum - per Carey v. Brown
  66. What is the rule regarding proving libel in NY Times v. Sullivan?
    • Private individual: mere negligence is sufficient to prove a libel claim
    • Public official: acual malice must be proven - the libeler must know the information is false or recklessly disregard the truth or falsity of the statement
  67. Simply prefacing a false statement as _______ does not avoid a libel suit
    an opinion
  68. How did Bolger v. Young Drug define commercial speech?
    • Advertisement
    • Refers to a specific product
    • Is economically motivated
  69. What are the four categories of "speech" included in the First Amendment?
    • Non-protected speech
    • Conduct/expressive action
    • Commercial speech
    • Fully-protected speech
  70. When can the government ban commercial speech?
    • - When it is more likely to decieve the public than to inform it
    • - When it is related to illegal activity
  71. What is the Central Hudson test that is applied to regulations that restrict commercial speech?
    • 1) the speech must be commercial per Bolger
    • 2) there must be a substantial governmenal interest
    • 3) the regulation must directly advance that interest
    • 4) it may not be more extensive than necessary
  72. In proving the pernicious secondary effects of nude dancing, is a city required to do its own study?
    No - per Pap's AM v. City of Erie, they may borrow from other cities to prove their case
  73. What rule from O'Brien applied to public indecency statutes in Barnes?
    • o 1) Public indecency statute is within the constitutional power of the State
    • o 2) The statute furthers substantial governmental interests of protecting order and morality - the statute is justified (even if appearing nude in public is “expressive” conduct) - also Souter's "pernicious secondary effects"
    • o 3) The statute is not aimed at erotic dancing, rather, all types of public nudity (not like Texas v. Johnson – in which the expressive conduct itself [flag burning] was the targeted conduct)
    • 4) incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest
  74. What was the subject matter of O'Brien?
    draft card burning
  75. What is the four-factor O'Brien test applied to expressive conduct?
    • Valid governmental purpose
    • Regulates communicative acts in the interests of some other non-speech related goal
    • Narrowly tailored
    • Minimally restricts the speech protected by the First Amendment
  76. Which case dealt with flag burning?
    Texas v. Johnson
  77. What three things did the court hold in Texas v. Johnson regarding flag burning?
    • 1) it was symbolic speech (expressive conduct)
    • 2) there no actual or threatened disturbance of the peace or fighting words
    • 3) because the restriction is content-based, it is subject to strict scrutiny
  78. Is obscenity protected speech?
    No - Roth v. United States
  79. If adult theatres were to be prohibited from 95% of a city, would it be constitutionally permissible?
    Yes, as a reasonable, time, place, or manner restriction - City of Renton v. Playtime Theater
  80. New York v. Ferber
    The government has a compelling interest in preventing the use of children in pornography
  81. Is violence in video games regulatable?
    Probably not - a CA law in Brown v. Entertainment Merchants Association didn't pass strict scrutiny
  82. How did Miller v. California define obscenity?
    • average person would find appeals to the prurient interest taken as a whole (community based)
    • describes or depicts in a patently offensive way, sexual conduct specifically defined by state law (community based)
    • as a whole, lacks serious literary, artistic, political, or scientific value (national standard)
  83. Does the Miller test apply to pornography on the internet?
  84. What does the Contracts Clause say?
    No state shall...pass any ... law impairing the obligation of contracts...
  85. Where is the Contracts Clause found in the text of the Constitution?
    Article I, Section X, Clause 1
  86. Why was the NY bankruptcy law in Sturges v. Crowninshield held to be invalid?
    because it retroactively applied to already-existing contracts
  87. What was the court's dicta in Dartmouth College v. Woodward regarding the revocability of pubic charters?
    That they would ordinarily be revocable.
  88. Stone v. Mississippi is one of the ______ cases.
  89. Where is the Free Speech Guarantee found and what does it state?
    The First Amendment; Congress shall make no law ... abridging the freedom of speech, or of the press ...
  90. Is ther First Amendment incorporated against the states?
    Yes, through the Fourteenth Amendment.
  91. When might prior restraint be acceptable?
    when the issuing agency's restriction is based on a time, place, and/or manner (but not content)
  92. Why is there more of a presumption against prior restraint than there is against post-speech regulation of the speech (according to NY Times v. US)
    Because a prior restraint has a greater chilling effect on speech
  93. According to NY Times v. US, when might prior restraint be constitutional?
    If the prior restraint is imposed in order to prevent imminent harm.
  94. _____ v. _____ illustrates the _____ exception to the prohibition on prior restraint.
    Hill v. Colorado; abortion
  95. What are some types of speech that are not protected?
    • obscenity
    • fighting words
    • incitement to illegal activity
  96. What is a traditional public forum?
    a place where long tradition assembly and debate have been permitted, such as streets, sidewalks, and parks (Perry Education Assoc. v. Perry Local Educators' Assoc.)
  97. What are some examples of reasonable time/place/manner restrictions?
    • - noise control ordinances in school zones (Grayned v. Rockford)
    • - abortion protests near clinics (Hill v. Colorado) -- this case was questionably a viewpoint restriction
    • - distribution of campaign literature within 100 feet of a polling place (Burson v. Freeman)
  98. Why was the picketing regulation in Carey v. Brown ruled unconstitutional?
    Because neighborhood streets are considered to be traditional public forums.
  99. Why did the court (majority) uphold the restriction in Hill v. Colorado?
    • - Because it wasn't viewpoint restrictive
    • - it wasn't content restrictive
    • - it passed intermediate scrutiny
    • the state had a legitimate interest in protecting the health of its citizens
    • the law was closely drawn
    • the restriction left ample alternatives for expression
  100. What was the minority's biggest contention to the holding in Hill v. Colorado?
    That the majority based its opinion on the "right to be left alone" which is no right at all because “If protecting people from unwelcome communications is a compelling state interest, the First Amendment is a dead letter.”
  101. What is an example of a limited public forum?
    a public school newspaper (Rosenberger v. Rector)
  102. Is an airline terminal a public forum?
    No - Int'l Society for Krishna Consciousness v. Lee - the airport terminal's primary purpose is to facilitate air transport, and a public forum is only created when a place is intentionally opened up for public use
  103. Is libel protected?
  104. Government may regulate ____ but not _____.
    action; belief - Yates
  105. What is the requirement to prove that speech is considered incitement to illegal activity for the purposes of the First Amendment?
    Imminent, immediate action and is likely to produce that effect (Brandenburg, Hess)
  106. Did the government in NAACP sucessfully regulate the speech?
    No - because there was no proof that the speech would likely produce violence
  107. What are fighting words?
    Speech 1) directed at another that is 2) likely to provoke a violent response
  108. What forum was in question in Snyder v. Phelps, and how did the court's decision play out?
    The forum was a traditional public forum, and the picketers were advocating a matter of public concern, however, there was still the possibility for a reasonable time, place, or manner restriction in the future.
  109. What was the subject matter in Rust v. Sullivan?
    • Title X funding for abortions was disallowed due to the three conditions being placed on providers through regulations:
    • 1) no counseling for abortion as a family planning method (preconception services only)
    • 2) any Title X funded programs may not engage in behavior encouraging or advocating abortion
    • 3) Title X activities must be physically and financially separated from abortion activities
  110. What proposition does the holding in Rust v. Sullivan stand for?
    That the government may choose what type of speech it engages in (as long as it doesn't completely rule out the free speech rights of citizens)
  111. What are some examples of the government unconstitutionally causing individuals to enage in speech?
    • forcing schoolchildren to say the pledge of allegiance - West Virginia v. Barnett
    • forcing citizens to bear the state's motto on their license plates - Wooley
  112. Suppose an artistic organization were recieving federal funding, and the government refused to allow those funds to be used for anti-religious artistic work, would limiting the use of the funds be constitutional?
    Yes, because the government is acting as a market participant and may choose what type of speech it wants to engage in - NEA v. Finley
  113. Must workers contribute to the political activities of their unions?
    No - United States Department of Agriculture v. United Foods, Inc.
  114. Are library computers public forums?
    No, it is government speech, so access to pornographic websites may be blocked - United States v. American Library Association
  115. What did Connic v. Meyers state about public employee speech?
    That a state may not condition public employment on a basis that infringes on the employee's constitutionally protected interest in freedom of expression
  116. What is the three-step test from Pickering that applies to public employee speech?
    • 1) Was there an adverse effect on employment?
    • 2) was the employee speaking as a citizen on a matter of public concern?
    • 3) Is the employees interest outweighed by the injury to the employer's function?
  117. How did the court apply the three-step Pickering test to the teacher in Garcetti v. Ceballos?
    • 1) there was adverse action
    • 2) He was not exactly speaking as a citizen on a matter of public concern - more as an employee
    • 3) His speech had the potential to affect the employer's operations
  118. May party affiliation affect eligibility for government positions or continuing employment?
    • Per Elrod v. Burns:
    • For policymaking positions --> yes
    • For non-policymaking posisions --> no
  119. Is it constitutionally permissible to prohibit judges from speaking on their views regarding disputed legal or political issues?
    no - because it undermines the election process - Republican Party of Minnesota v. White
  120. What are two important points that can be taken from Morse v. Frederick?
    • Advocacy of illegal drug use is non-protected speech for students.
    • For students, it is not required to prove incitement and imminency
  121. What did the court find was not necessary for the school to tolerate in its assembly in Fraser?
  122. Where is the Privileges AND Immunities clause found, what does it say, and what actor(s) does it apply to?
    • Article IV
    • The citizens of each state shall be entitled to the Privileges and Immunities of the citizens of the several states.
    • It applies to states only
  123. Where is the Privileges OR Immunities clause found, what does it say, and what actor(s) does it apply to?
    • The Fourteenth Amendment
    • No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
  124. Is there a market participant exception to the privileges and/or immunites clauses?
  125. What are two possible views of the privileges and immunities clause?
    • That it intends to foster equality
    • That it intends to protect fundamental rights
  126. What are some things that the court has considered to be the privileges and/or immunities protected?
    the right to engage in a profession for which one is qualified (Supreme Court of New Hampshire v. Piper; Slaughter-House Cases)
  127. What is one process that will succeed under the Fourteenth Amendment Due Process Clause?
    The legislative process
  128. What is the difference between substantive due process and procedural due process?
    • Substantive: what is the interest protected/ what constitutes life, liberty or property?
    • Procedural: what is due process of law?
  129. What can we pull from Carolene Products, fn 4 regarding due process and the legislative process?
    • That the court will step in and not apply rational basis scrutiny when the legislature engages in legislative action when
    • 1) it tramples enumerated rights
    • 2) it impedes the political process
    • 3) it discriminates against discreet and insular minorities
  130. Due process violations can only occur when there is ______ action.
  131. What constitutes state action for due process inqueries?
    • IS: when government space is leased for private purposes (symbiotic relationship); when a prosecutor uses race as the basis for a preemptory
    • is NOT: when a discriminatory lodge is granted a liquor license; when a privately-owned common carrier discriminates
  132. If a private entity is discriminating, can a violation of the Fourteenth Amendment be found?
    Yes, if the private actor is acting "in loco government" or if there is sufficient entanglement with state actors
  133. May political parties racially discriminate in their primaries?
  134. Is there a property interest in a procedure?
    No - Town of Castle Rock v. Gonzalez
  135. What was the subject matter of Goldberg v. Kelly?
    Termination of welfare benefits without an evidentiary hearing
  136. What are the five elements of due process from Goldberg v. Kelly?
    • 1) opportunity to be heard
    • 2) hearing at a meaningful time in a meaningful manner
    • 3) timely and adequate notice
    • 4) effective opportunity to defend through presentation of evidence and cross-examination
    • 5) Unbiased decision-maker
  137. If a statute grants a substantive right, may that statute prescribe processes for terminating that right that don't pass the Goldberg test?
    No; Clevland Board of Education v. Loudermill
  138. Was the termination of the disability benefits in Matthews v. Eldridge found to be permissible? Why/why not?
    Yes, because disability benefits are not conditioned on financial need
  139. Where is the Equal Protection Clause found and what does it state?
    Fourteenth Amendment; All persons born or naturalized in the United States, and subject to the jurisdiction thereof ... no state shall deny to any person within its jurisdiction the equal protection of its laws.
  140. What is the difference between the Equal Protection clause and the Due Process clause?
    The Equal Protection clause applies to persons, but the Due Process Clause (and the Privileges and Immunities clause) apply only to citizens.
  141. What are the three steps of an equal protection analysis?
    • 1) What is the classification?
    • 2) What is the appropriate level of scrutiny?
    • 3) Does the government's explanation of the classification satisfy the appropriate level of scrutiny?
  142. What effect did the Dred Scott case have?
    It invalidated the Missouri Compromise
  143. What was the general subject matter of Plessy v. Ferguson?
    A person was prevented from sitting outside of his race's railroad car. (the segregation was upheld)
  144. Did a Fourteenth Amendment claim succeed in Brown v. Board of Education?
  145. When is affirmative action permissible?
    To remove the vestiges of de jure segregation.
  146. What was the subject matter of Washington v. Davis?
    a test administered to applicants for DC Metro PD
  147. What constitutional challenge was brought to the admissions test in Washington v. Davis?
    A Fifth Amendment challenge (because the equal protection clause had been read into the Fifth Amendment in order to keep the federal government accountable in equal protection situations)
  148. Why did the claim in Washington v. Davis fail?
    Because although there was shown to be some discriminatory impact, there was no evidence of discriminatory intent.
  149. Is title VII applicable when only disparate impact is proven?
    No - City of Boerne v. Flores
  150. What is one way of proving discriminatory intent?
    Proving that, when discriminatory impact is proven, a race-neutral reason for a classification is only pretext.
  151. What are the steps that are followed in a discrimination claim case?
    • Plaintiff must prove a prima fascie case for discrimination
    • Defendant must prove a race-neutral reason for the discrimination
    • Plaintiff may show that the race-neutral reason is just a pretext masking the discriminatory purpose
    • (from McDonnel-Douglas)
  152. What rule can be taken from the Arlington Heights v. Metropolitan Housing Development Corp zoining case?
    That discriminatory purpose in government action may still be permissible if it is one of many (but not the primary) purposes; in which case, the burden is on the plaintiff to prove the same action would have been taken if only the discriminatory purpose were present
  153. What is the general definiton of a benign classification?
    One which the majority imposes on itself.
  154. What is the rule from Reynolds v. Sims?
    States must make good-faith efforts to make districts as equally-proportioned (as to population) as possible
  155. Do standardless manual recounts violate the Equal Protection and Due Process clauses?
    Yes - Bush v. Gore
  156. Match each of these clauses with their applicable branches - Privileges and Immunities, Equal Protection, Due Process
    • Privileges and Immunities - Legislative
    • Equal Protection - Executive
    • Due Process - Judicial
  157. Was the right of women to vote upheld in Minor v. Happerset?
  158. What was the significance of the VMI case?
    it applied heightened scrutiny to cases of gender discrimination in that it required the state to have "exceedingly persuasive justification" for gender discrimination
  159. Why did Kennedy opine that Colorado's amendment 2 was invalid?
    because he felt that animus was the only underlying motivation for the statute
  160. What did the minority hold in the Romer v. Evans case?
    That it was simply the majority's efforts to deny preferential treatment to a minority
  161. Where are implied Fundamental Rights found?
    in the Ninth Amendment: the enumeration of rights in the Constitution shall not be used to deny or disparage others retained by the people
  162. What are some fundamental rights that have been established?
    • Directing the upbringing of one's children (Myer v Nebraska; Pierce; Troxel)
    • Marrying whom one wants (Loving)
    • Procreation (Skinner)
    • Family living arrangements
    • Contraception (Griswold; Einstadt)
    • Abortion (Roe; Planned Parenthood v. Casey)
    • Homosexual conduct????
  163. What have the courts declared not to be fundamental rights?
    • Assisted suicide (Vacco v. Quill; Washington v. Glucksberg)
    • Homosexual conduct (Bowers v. Hardwick)
    • Abortion in the third trimester (Gonzalez v. Carhart)
  164. Why did the visitation statute in Troxel v. Granville fail to pass constitutional muster?
    • Becuase the grandparents had no standing
    • The statute was overbroad
    • The statute permitted the state to interfere with parental rights even if there was no showing of harm to the children
    • The statute was not narrowly tailored to protect the children within its care
  165. Is the right to marry as establishe in Loving v. Virginia absolute?
    no - there are other limitations which have been found to be constitutional (i.e. bans on polygamy and incest as well as age limitations)
  166. Why did the criminal sterilization statute in Skinner v. Oklahoma fail?
    It did not measure up to Due Process because it applied differently to similar classes of criminals (it was not narrowly tailored per strict scrutiny review)
  167. What did Moore v. City of East Clevland hold?
    That it would repsect family bonds by blood, marriage, or adoption
  168. Was the restriction in Village of Belle Terre v. Borras upheld?
  169. Was CA's presumtion that a child born to a married woman is the child of her husband found to be constitutional?
    Yes, in Michael H. v. Gerald D. - because CA's legislature had already decided that it would respect the sanctity of relationships within the unitary family
  170. What fundamental right did Griswold articulate?
    that there was a right to privacy regarding the use of contraceptives in the marital bedroom
  171. How did Einstadt v. Baird add to the holding of Griswold?
    It re-interpreted the right to privacy in the use of contraceptives as an individual one, not a marital one.
  172. On what two grounds did the plaintiffs in Roe v. Wade object to the TX and GA abortion statutes?
    • Vagueness
    • Violation of the right to privacy (implied in the pneumbras of the Fourteenth Amendment)
  173. What was the "trimester framework" that Planned Parenthood v. Casey stated was establisehd established by Roe v. Wade?
    • 1st trimester - no regulation allowed
    • 2nd trimester - regulations to protect the woman's health are allowed
    • 3rd trimester - prohibitions are permitted when the life and health of the mother are not at stake
  174. What was the holding and test found in Planned Parenthood v. Casey?
    • The right to an abortion is not absolute and may be regulated
    • An undue burden on a woman's access to abortion may be found if:
    • 1) there is a substantial obstacle to obtaining the abortion
    • 2) the fetus is nonviable
  175. What law was in question in Planned Parenthood v. Casey?
    • a PA law that required:
    • 1) 24 hour waiting period before a woman obtains an abortion (with medical emergency exception)
    • 2) certain info regarding abortion procedure be given to the woman beforehand
    • 3) Minor had to get at least one parent's consent or a judicial bypass prior to obtaining an abortion
    • 4) married woman had to inform her husband prior to obtaining abortion
  176. Is it permissible for a state to adopt measures that prefer childbirth over abortion?
    Yes, provided it does not impose an undue burden on the access to it
  177. May states prohibit abortion after viability?
  178. How did the court rule the prohibition on partial birth abortion found to be constitutional?
    • The statute had a woman's life exception
    • It was specific as to what constituted the procedure
    • It required that the doctors knowingly perform the procedure
    • Three government interests at stake
    • 1)life of fetus
    • 2)mother's health
    • 3)medical profession/morals (the "gruesomeness" factor)
  179. What type of scrutiny is applied in the assisted suicide cases?
    rational basis
  180. What government interests are at play in preventing assisted suicide?
    • preserving human life
    • protecting the ethics and integrity of the medical profession
    • protecting vulnerable groups
    • avoiding the slippery slope toward euthanasia
  181. Why did the court find the law in Bowers v. Hardwick to be constitutional?
    • Because homosexual sodomy is not a fundamental right --> rational basis review only
    • Enforcing morality is a legitimate state interest
    • That is what the law does
  182. Why did the court invalidate the sodomy statute in Lawrence v. Texas?
    Because the court said there was no legitimate state interest in prohibiting the conduct
  183. Why did the court find the statute in Fletcher v. Peck to be unconstitutional?
    Because it impaired the obligations of contracts, namely, the prior conveyance of lands
  184. Ambiguity in a contract is resolved in favor of the _____.
  185. A state's impairment of its own contract must be _____ and ______ to serve an _________ _________ _________.
    reasonable, necessary; important public purpose
  186. When does government modification of the terms of contracts run afoul of the Contracts Clause?
    When it undermines the central undertaking for the seller or the primary consideration of the buyer (City of El Paso v. Simmons)
  187. What case applied a Contracts Clause - like analysis to the Federal Government?
    United States v. Winstar
  188. What kind of scrutiny applies to viewpoint or content restrictions?
  189. Why was the reqirement in Red Lion, requiring expression of all viewpoints in order to obtain broadcast license, upheld?
    Because there was a scarcity of broadcast frequencies
  190. Is there a right to reply to newspaper articles?
    No - Miami Herald
  191. Can cable companies be required to broadcast local stations?
    Yes, because it fosters free speech - Turner Broadcasting
  192. Is cross burning considered fighting words?
    No - RAV v. City of St. Paul, Virginia v. Black
  193. Why was the statute in Wisconsin v. Mitchell upheld?
    because it was aimed at conduct with a particular motive, not speech or idea
  194. If the "don't ask, don't tell" policy were still in place, would it be considered compelled speech for federal funding to be conditioned on colleges allowing recruiters on campus?
    No - Rumsfeld v. FAIR
  195. Can whistleblower statutes stand in the stead of First Amendment protections?
    Yes - Connic v. Myers
  196. Is "leveling the playing field" in campaign funding a legitimate government interest?
    No - Buckley v. Vallejo; Arizona v. Bennett (fund matching)
  197. What were the two main holdings in Citizens United?
    • That expenditure limitations were not constitutional
    • That contribution limitations were contsitutional
  198. What constitutional claim did the court entertain in the Slaughterhouse cases?
    A Fourteenth Amendment Privileges and Immunities challenge.
  199. Why is a residency term discrimination requirement for welfare benefits unconstitutional?
    because it infringes on the right to travel
  200. Can a state agency approve bonds for taxation purposes without the legislature's approval?
    No - Loan Association v. Topeka
  201. When might an economic regulation of an industry be permissible?
    When an industry is affected with the public interest
  202. What protects economic liberty?
    Due Process - Allgeyer
  203. What does the term "affected with the public interest" mean?
    subject to control for the public good
  204. What is the standard/scrutiny applied to economic regulations
    • is the regulation reasonably related to a proper legislative purpose?
    • Is it arbitrary or discriminatory?
  205. Which case contains the debtor or creditor race debate and badge of inferiority quote?
    Adarand Contructors, Inc v. Pena
  206. Why was the affirmative action plan in GRutter v. Bollinger upheld?
    Because the school's policy was holistic, and race was not the only consideration in attaining diversity.
  207. Was the redistricting in Miller v. Johnson upheld?
    No - because redistricting on the basis of race is in violation of the fourteenth amendment
  208. May race be used to determine party affiliation?