Judicial Review
What is Judicial Review?
Courts are vested with the authority to determine the legitimacy of the acts of the executive and legislative branches of government. Actions judges inconsistent are declared unconstitutional and, therefore, are null and void.
What are the Fourteenth Amendment and Fifth Amendment? How are they different?
Fourteenth Amendment: No state shall deprive any person of life, liberty, or property without due process of law.
Fifth Amendment: No person shall deprive any person of life, liberty, or property without due process of law.
The difference is that the Fourteenth Amendment applies to the states, and the Fifth Amendment applies to the federal government.
1. How many members of congress are there?
a. House Representative
b. Senator
2. Name the Supreme Court Justices
1.
a. 435
b. 100
2. Alito, Thomas, Roberts, Sotomayor, Kavanaugh, Grich, Coney-Barrett, Jackson-Brown, Kagan
What is the First Amendment?
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
What is the 1st Amendment for Freedom of Religion?
Congress shall make no law abridging the Freedom of Speech
What is the difference between Original Jurisdiction and Appellate Jurisdiction?
Original Jurisdiction: The only way a case could be heard as original jurisdiction in the Supreme Court is if it referred to a representative if a foreign government (ambassador, public ministers, consuls) and when the state is a party.
Appellate Jurisdiction: The Supreme Court will serve as an appellate court on almost any other case that involves a point of constitutional or federal law, and Supreme Court can expand or remove appellate jurisdiction.
What is Substantive and Procedural Due Process?
Substantive Due Process: protects against government intrusion upon or deprivation of fundamental rights as defined by the Supreme Court.
Procedural Due Process: Guarantees only that there is a fair decision-making process before the government takes action directly impairing a person's life, liberty, or property.
What is the State Action Doctrine?
The Constitution applies to government at all levels, federal, state, and local, and to the actions of government officers at all levels.
What standard in Kennedy replaced the Lemon test?
Historical practices and understanding of the Founding Fathers prevail.
What is the definition of Speech?
a government has no power to restrict expression because of its message, idea, subject matter, and content. A plaintiff will assert a First Amendment claim due to enacting a law, regulation, or ordinance impeding or burdening their free speech.
What decision came out of Malbury vs. Madison?
The Court established judicial review based on the theory that it can declare laws unconstitutional.
What is Intermediate Scrutiny and Rational Basis? In what instances are each used?
Intermediate Scrutiny: the standard applied would be that the policy or law would have to be substantially related to a government issue, with the government holding the burden of proof. Also, there must be an exceedingly persuasive justification for discriminating on gender and the legitimacy of marital children.
Rational Basis: a law will be upheld if it is rationally related to a legitimate government purpose. The challenger has the burden of proof.
Intermediate Scrutiny would be used in cases involving Gender and Rational basis in cases of economic interest.
What is Strict Scrutiny?
The policy or law must serve a compelling government interest and be narrowly tailored to the pursuit of that interest.
What is the Hybrid Clause?
If a combination of a fundamental right and a free exercise clause violation is in question, the claim cannot be determined as Constitutional or Unconstitutional. Therefore, it does not follow the generally applicable law rule.
What are the Protected and Unprotected forms of speech?
Protected: Content-Based, Content-Neutral, Symbols/ Conduct, Prior Restraint, Government Speech
Unprotected: Fighting Words, Incitement of Illegal Activity, obscenity
What is incorporated in Article III of the Constitution?
The Original Jurisdiction and Appellate Jurisdiction?
What are the nine Fundamental Rights?
1. The right to marry
2. Right to contraception
3. Right to procreate
4. Right to Vote
5. Right to Control of upbringing
6. Right to Consensual Intimacy
7. Right to refuse medical treatment
8. Right to Custody of one's child
9. Right to travel
What are the exceptions to the State Action Doctrine?
1. Public Functions: A private entity must comply with the constitution if it is performing a task traditionally done by the government.
2. Entanglement: Private conduct must comply with the constitution if the government has authorized, encouraged, or facilitated constitutional conduct.
What is the Establishment Clause? What are the two key terms that the Court tries to prevent from happening in cases of Enstablishment?
Bars laws that tend to support a religious group and religious activities in general or prevents government from declaring general practice of religion.
The two key terms are coercion and endorsement. The court wants to prevent coercion in secondary schools. ie. mandated prayer in schools. Also, the Court does not want laws or policy to look as if the government is supporting religion.
What is the Brandenburg Test, and when is it used?
Test:
1. Is there an intent to cause imminent illegality
2. Is there a likelihood of producing illegal actions
3. Is there an imminent harm
It is used when it has been decided that the law was not vague or overbreadth, or content-based; if it is none of these then you apply the test.
Random Question
N/A
What is the difference between a classification existing on the face of the law and a facially neutral law?
On the face Law: the law, in its very terms, distinguishes people based on a particular characteristic.
Facially neutral law: have a discriminatory impact on the law or discriminatory effect from its administration and must show proof that there is a discriminatory purpose behind the law.
What is the Incorporation Doctrine, and when is it used?
The doctrine makes the constitutional Amendments apply to State, Local, and Federal governmental actions and conduct. It can be either be fully or partially incorporated or its not applied.
Full: 1,2,4,8
Partial: 5,6
No: 3,7
What is the Free Exercise?
Individuals have the right to worship in the way they see fit without government interference.
What is the analysis for Freedom of Speech regarding conduct/symbols?
1. First Amendment; with the inclusion of the incorporation clause
2. Freedom of Speech defined
3. Speech: attempting to convey a message to the world or enabling speech that an individual wants to put in the marketplace to represent the person
a. the speaker intended to convey a message and the message is one likely to be understood by the listener.
b. Test
1. Is the regulation within the constitutional power of the government
2. Does the regulation further an important government interest
3. Is the government interest unrelated to the impression of free speech
4. If there is an incidental restriction on first amendment freedoms, it must be no greater than what's essential to furthering government interest in question