Pol Sci 71A: Introduction to Law Test #2 Study Guide

Vocabulary flashcards covering judicial review, constitutional privacy rights, First Amendment religion and speech clauses, and major legal cases for Pol Sci 71A Test #2.

Judicial review

The authority of courts to review actions taken by the legislative and executive branches and declare them unconstitutional if they violate the Constitution.

• constitutional rights ate protected from the democratic process → f the law if unconstitional it is not a law at all EVEN if the majority voted it in

• SC is not intended to be a super legislature → there to interpret the law not create it

Federalist No. 78

An essay written by Alexander Hamilton that defends the federal judiciary,

• describes it as the least dangerous branch => bc they do not have the power of the purse or sword

• not there to make law; they are the voice of popular sovereignty

• voice of the minority => able to make decisions that the minority could not make for themselves

• justifies the practice of judicial review to protect constitutional rights & keep other branches in check (e.g. legislative can create law but judicial can strike them down)

• life tenure for judges to protect from political influence

Democracy v. constitutionalism

Democracy - by, for, and of the people => majority vote in laws

Constitutionalism - constitution guarantees certain rights, which are untouched by the govt.
The inherent tension between majoritarian rule and the restriction of governmental power through constitutional limits designed to protect individual and minority rights.

Marbury v. Madison (1803)

The landmark Supreme Court ruling that formally established the principle of judicial review under Article III of the Constitution.

• Marbury was denied his commission even though it was his right

• Solution = wrote of mandamus under Section 13 of Judiciary Act of 1789

  • However, the SC struck down Section 13 as unconstitutional because it expanded the court’s original jurisdiction beyond what it was allowed (extended to ambassadors, public ministers, consuls, etc).

  • Thus, Marbury, who used Section 13, to defend his case, was denied his commission

Substantive due process

Principle in United States constitutional law that protects fundamental, often unlisted (unenumerated) rights from government interference, even if the government follows fair procedures

• 5th amendment - No person shall be deprived of life, liberty, or property without the due process of law (protecting the people from the Fed)

• 14th amendment - Nor shall any State deprive any person of life, liberty, or property without the due process of law (protect people from the State)

The penumbras of privacy

The legal concept that implied shadows or zones of privacy are cast by various specific guarantees within the Bill of Rights (such as the First, Third, Fourth, Fifth, and Ninth Amendments).

• even though, the word privacy is not explicitly stated in the Constitution, the combindation of c

Spatial v. act-based privacy

The distinction between protecting privacy tied to physical spaces or locations (such as the home) versus protecting the privacy of specific personal decisions, choices, or behaviors.

Roe v. Wade (1973)

The Supreme Court decision holding that the constitutional right to privacy under the Fourteenth Amendment encompasses a woman's decision to have an abortion, establishing a trimester framework.

Hyde Amendment

A federal legislative provision barring the use of federal funds, particularly Medicaid, to pay for abortions except in cases of rape, incest, or life endangerment.

Informed consent

A legal and medical requirement mandating that a patient receive specific factual disclosures and information regarding risks and alternatives before undergoing a medical procedure such as an abortion.

Spousal notification

A legal requirement compelling a married woman to notify her spouse prior to obtaining an abortion, held to be an unconstitutional undue burden in Planned Parenthood v. Casey.

Parental consent

A statutory requirement requiring a minor to obtain the consent of one or both parents before obtaining an abortion, typically requiring a judicial bypass mechanism to be constitutional.

Planned Parenthood v. Casey (1992)

The Supreme Court case that reaffirmed the central holding of Roe v. Wade while abandoning the trimester framework in favor of the undue burden standard prior to fetal viability.

Undue burden

The legal standard established in Planned Parenthood v. Casey where a regulation is unconstitutional if its purpose or effect places a substantial obstacle in the path of a woman seeking an abortion prior to fetal viability.

Fetus viability

The developmental point at which a fetus has the capability of sustained survival outside the womb, with or without artificial assistance.

Free Exercise Clause

The clause of the First Amendment that protects the right of individuals to hold religious beliefs and engage in religious practices without unwarranted government interference.

Belief-action divide

The First Amendment doctrine establishing that the government may not regulate or punish religious beliefs, but may regulate religiously motivated conduct through neutral, generally applicable laws.

Establishment Clause

The clause of the First Amendment prohibiting the government from creating a national religion or improperly favoring or entangling itself with religion.

Appeasement v. compromise

The conceptual distinction between conceding principles to placate religious or ideological demands (appeasement) versus reaching a mutual, principled legal balance among competing rights (compromise).

Valid secular policy

The legal test establishing that a government regulation is constitutional under the Free Exercise Clause if it is enacted for a legitimate non-religious purpose and applies generally without targeting religion.

The Lemon Test

A three-part test for Establishment Clause challenges requiring that a law have a secular legislative purpose, a primary effect that neither advances nor inhibits religion, and no excessive government entanglement with religion.

Nonpreferentialism

The view of the Establishment Clause asserting that government may provide aid or support to religion as long as it does not discriminate between or prefer any particular denomination or faith over others.

Endorsement

An Establishment Clause test assessing whether a reasonable observer would perceive government action or display as endorsing or disapproving of religion.

Coercion

An Establishment Clause framework evaluating whether the government directly or indirectly pressures individuals into participating in or supporting religious activities.

Social Conflict

A theoretical rationale underlying First Amendment jurisprudence arguing that government entanglement with religion or suppression of speech inevitably causes civil strife and sectarian political conflict.

Viewpoint discrimination

An unconstitutional form of content regulation in which the government restricts speech based specifically on the particular ideological stance, opinion, or perspective of the speaker.

Absolutist approach to freedom of speech

A judicial philosophy interpreting the First Amendment's text literally, asserting that government has no constitutional power to restrict or regulate pure speech under any circumstances.

Categorical approach

A First Amendment method of analysis where speech is classified into distinct categories (such as political speech, fighting words, obscenity, or defamation) to determine its degree of protection.

Balancing approach

A judicial method in First Amendment jurisprudence where the court weighs the speaker's interest in free expression against the government's regulatory interest in preventing social harm.

Clear and present danger

A First Amendment standard from Schenck v. United States stating that speech can be restricted if it creates an immediate, substantial evil that the government has a right to prevent.

Bad tendency

An early First Amendment doctrine that permitted the government to restrict expression if it had a natural tendency to bring about illegal acts or subvert public order.

“Time to answer” test

A First Amendment principle derived from Justice Brandeis's concurrence in Whitney v. California asserting that if there is time to expose falsehood through speech and debate, the constitutional remedy is more speech, not enforced silence.

Clear and probable danger

A modified version of the clear and present danger test used in Dennis v. United States, asking whether the gravity of the evil, discounted by its improbability, justifies restricting speech.

Imminent lawless action

The standard established in Brandenburg v. Ohio holding that advocacy of illegal conduct can only be banned if it is directed to inciting or producing imminent lawless action and is likely to produce such action.

Symbolic speech

Nonverbal conduct or gestures intended to convey a particularized message that is understood by those who view it, protected under the First Amendment.

Minnesota Voters Alliance v. Mansky (2018)

A Supreme Court decision striking down a state law banning voters from wearing political apparel inside polling locations on the grounds that the prohibition was not capable of reasoned, objective application.

Hate speech

Expression that disparages, vilifies, or attacks individuals or groups on the basis of characteristics such as race, religion, gender, or sexual orientation, generally protected by the First Amendment unless it constitutes a true threat or incitement.

In loco parentis

A Latin legal doctrine meaning "in the place of a parent," granting legal institutions such as schools parental authority and responsibility over minors.

The Hicklin Test

An English common law test for obscenity that judged material based on the effect of isolated passages on the most vulnerable or impressionable members of society.

The Roth Test

The obscenity standard from Roth v. United States determining whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Community standards

A legal benchmark in obscenity jurisprudence that evaluates whether expressive material violates contemporary local or regional norms regarding sexual content, rather than an idealized national standard.

Obergefell v. Hodges (2015)

The landmark Supreme Court ruling holding that the Fourteenth Amendment guarantees same-sex couples the fundamental right to marry.

Dobbs v. Jackson Women’s Health (2022)

The Supreme Court decision that overruled Roe v. Wade and Planned Parenthood v. Casey, finding no constitutional right to abortion and returning authority to regulate or prohibit abortion to the states.

Espinoza v. Montana Dept. of Revenue (2020)

A Supreme Court decision ruling that a state violates the Free Exercise Clause by excluding religious schools from a publicly funded state tax-credit scholarship program solely because of their religious status.

B.A. v. Tri County Schools (2025)

A school law and student constitutional rights case focused on the extent of administrative authority over student expression and disciplinary procedures.