Constitutional Law Exam 2

civil rights

power given to the people from the government, legal protections that guarantee equal opportunities and protection under the law for all people

civil liberties

protection of people’s rights against the government, involves individuals freedom of an undue infringement of the government

due process clause of the 14th amendment

‘nor shall any state deprive any person of life, liberty, or property without due process of the law”

what does “liberty” mean

Courts look at this on a case-by-case basis, process the Court uses to determine what liberty means is “selective incorporation”

selective incorporation

rather than the Court saying the definition of liberty broadly, they will take it up and consider it on a case-by-case basis, is the right deeply rooted in this nation’s history and tradition

which of the rights listed in the Bill of Rights has the Court decided that it is part of the definition of liberty?

establishment of religion, speech, press, petition, rights of grievance, 5 basic rights of humans

why has the third amendment not been incorporated into the word liberty?

this has not been brought to the Court as a case or controversy

why did the Court choose to do this selectively

maybe liberty should include more than just the rights of the Bill of Rights, including the right to marry

equal protection clause

“nor deny to any person within its jurisdiction the equal protection of the laws”, this clause gets you to civil rights and what requires a state to treat everyone the same

when did the States have a constitutional mandate to recognize civil rights and liberties?

not until the adoption of the 14th amendment

where in the constitution are citizens protected from individual states’ infringing upon the freedoms (speech, press, etc)?

14th amendment

where in the constitution are citizens protected from the federal government?

first amendment

five rights guaranteed in the first amendment

freedom of speech, press, religion, right to assemble (peaceful assembly), right to petition the government for a redress of grievances

D.C. v Heller

D.C. passed a law that required licensure for handguns and rifles kept at home, they had to be disassembled or have safety locks, Heller was denied a permit to keep a handgun at home for self defense, this violated his second amendment rights, reasoning comes from Constitution and previous cases

second amendment

“a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”

prefatory clause

“a well regulated militia, being necessary to the security of a free state”

operative clause

“the right of the people to keep and bear arms, shall not be infringed” the court is clarifying that this is an individual right

textualism

look at the exact words of the text, exact words of the Constitution, how would an average person understand these words?

textualists favorite tool

dictionary, they are descriptive not prescriptive, descriptive describes how a word IS used and prescriptive is a set of rules for how a word SHOULD be used

Miller Case

concerns crossing state lines with a short-barreled shotgun and National Firearms Act, Can Congress pass this? Yes, served as a limit to the second amendment, type of gun matters, militia matters, the guns they bring would have been used for hunting or self-defense

connection between self-defense and Heller

fundamental right to have a gun is a fundamental right to self-defense, creates some space for what type of gun people would defend themselves with

Heller Rule

second amendment protects the right to have a weapon in the home for lawful purposes such as self-defense, weapon people are using is a handgun and extending it to rifles

two big points about Heller Case

Court saying it is not a collective right, but an individual right and this is a narrow holding, one that tries to come in and answer as narrowly and focused as possible the legal question before the court

originalism

what did the framers intend? what did they originally intend this constitutional provision to mean? elite’s understandings, historical analysis

doctrinal

looking at the doctrine in the specific area of law (freedom of speech → First Speech Doctrine) and examine past cases in a particular area of law (speech, religion)

“McDonald v City of Chicago incorporates Heller” what does this mean?

the narrow right that was articulated in DC v Heller is now incorporated into the word liberty of the 14th amendment

why do we need McDonald v City of Chicago

McDonald answers the state and local question while Heller answers the federal question

McDonald v City of Chicago

Court is going to ask whether a right is deeply rooted in this nation’s history and tradition

what does the court use to figure out whether the right is included in the word “liberty”?

as they did in McDonald v City of Chicago, the court asked if this right was deeply rooted in this nation’s history and traditions

McDonald Rule

the second amendment protects the right to possess a handgun in the home for the purpose of self-defense, we therefore hold that the Due Process Clause of the 14th amendment clarifies the second amendment right in Heller

New York State Rifle and Pistol Association v Bruen

state of New York requires a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home, Can we carry a weapon outside the home for protection? the right to carry a firearm in public for self-defense is deeply rooted in history, no other constitutional right requires a showing of special need to exercise it, sensitive places restrictions might be appropriate but not in Manhattan

gun restrictions are constitutional only if there is a tradition of such regulation…which mode of constitutional requirements is being used?

originalism, historical analysis - tradition

modes of constitutional requirement

textualism, originalism, doctrinal

should questions of constitutional law and rights turn on the decisions of one justice?

DC and McDonald were both 5-4 decisions, if one justice went the other way it would be completely different

first amendment - religion part

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

establishment clause

there is not going to be an established church or religion for the country, Congress won’t privilege one religion over another or one religion over no religion

West Virginia State Board of Education v Barnette

WV Board of Education required public schools to include salutes to the flag by teachers and students, children in a family of Jehovah’s Witnesses refused to salute and were sent home from school for non-compliance, Did the compulsory flag-salute for public schoolchildren violate the first amendment? yes, this was unconstitutional

key points to take away from WV Board of Edu vs Barnette

first amendment cannot enforce a unanimity of opinion on any topic, national symbols should not receive a level of deference that trumps constitutional protections, first amendment gives us the right to say what we want but prevents the government from making us say things we don’t want to

Doctrine of a Captive Audience

scenario: public school teacher lead class in a prayer at the beginning of a class period, class of third graders, this is not okay because there is no meaningful way for the students to exit or leave, and no one will openly say no

who was the Bill of Rights put in place to protect?

minorities, prevents majorities from running rough shot over minorities

does Oshkosh having a Christmas parade violate the establishment clause?

just because it has a religious connection, if it transcends to have a secular meaning, it does not violate the establishment clause

factors Court considers when trying to figure out if establishment clause has been violated

does the event or practice, in some way have meaning that transcends? does it also have secular meaning? time, how long has this practice been there; in isolation or not; does it have historical meaning other than religion; factor test

american legion v american humanist association

whether or not it violated the establishment clause because the city paid for the upkeep of this religious symbol, no it does not violate the constitution or the establishment clause, big factors: how long it was there and it transferred pans, also WW1 memorial

free exercise clause

guarantees individuals the right to practice their religion freely without government interference as long as they do not violate laws or infringe on the rights of others

no right is absolute acception

you can believe anything you want, believing one thing is pretty absolute, but you cannot always act on those beliefs

what makes a religion a “bona fide” religion?

genuine or sincerely held religious belief, practice, or observance not merely a personal preference or a fabricated excuse, factors: how many people, official doctrine? how long has this practice/religion been in place

employment division v smith

constitution protects you from government infringement, seems like a private company, state is withholding unemployment benefits from these two because they were fired for “misconduct”

what is the state action?

State Action Doctrine, very first step in the Con Law analysis process, must state what the state has done

smith rule

laws that are facially neutral and generally applicable that incidentally burden [the free exercise of] religion, do not violate the first amendment

facially neutral

laws that do not target specific religious practices and apply uniformly to all, Court will look at a law, on its face, does it target religion or is it neutral?

generally applicable

does this law apply to everyone or only small sets of people

“incidentally burden [free exercise of] religion”

if a law gets in the way of someone exercising their religion, infringe upon someone’s religious beliefs

clear and present danger test

if your speech puts others in clear and present danger, it is not protected

brandenburg v ohio

brandenberg made a speech on private land, reporter recorded it and released it days later, showed firearms and the burning of a cross, said they were going to March on Washington, per curiam (unsigned) opinion, it did not violate his rights, imminent lawless action test; state convicted brandenberg under syndicalism law and fined him

imminent lawless action test

courts have said there is a difference between advocacy and action distinction, you can advocate for violence but once your advocacy slips into action, your speech can no longer be protected

texas v johnson

is burning the U.S. flag protected speech? law in texas makes it illegal to desecrate a venerable object, convicted johnson, does burning the flag qualify as speech? yes, symbolic speech, states interests were to prevent breaches of peace or public disorder and protect the flag as symbol of national unity, his speech rights outweighed the states’ interests

prevent breaches of peace or public disorder

just because your speech pisses people off, doesn’t mean it is a breach of peace, he was engaging in fighting words - if what I am saying invites the average person to exchange fisti cuffs then it is fighting words (not protected), slurs are protected until you direct them at someone

protect the flag as a symbol of national unity

bedrock principle, even though most found his speech disagreeable that is not sufficient enough to stop and arrest him, the state’s action was unconstitutional

bedrock principle

the government cannot prohibit the expression of an idea simply because society finds the idea offensive and disagreeable

time, place, and manner restrictions

universities/states can set these reasonably, can place limits on when, where, and how people can express themselves

snyder v phelps

church members flying around, country protesting at Veteran’s funerals, had really offensive signs which caused emotional distress to grieving families, lower courts fined Phelps lots of money, he did everything right, charged because state had abandoned its content neutrality content of the message violated bedrock principle of first amendment

prior restraint (doctrine)

A legal doctrine that prohibits the government from prohibiting speech or publication before it occurs, representing a significant limit to censorship under the First Amendment, NY times v U.S.

freedom of association

can a university prevent gay/lesbian students from forming an organization on campus before Lawrence v Texas when many states made it illegal to engage in same sex sexual conduct? Court said it violates first amendment rights, extension of assembly rights

how do you confront speech

with more speech

griswold v connecticut

shop selling birth control pills in Connecticut, law banning these pills, no autonomy rights in Constitution, found in penumbras of amendments 1,3,4,5,9; Connecticut cannot infringe upon these rights and can’t tell a couple that they cannot use birth control

where can you find the right to autonomy in the constitution

it is not explicitly enumerated, found in penumbras of amendments 1,3,4,5,9

penumbra

exists on the outer edge of a right, definitely there just not enumerated

dobbs v jackson women’s health organization

court went back and revisited whether it is a constitutional right to terminate a pregnancy, this is not deeply rooted in this nation’s history and traditions, issue goes back to the states to decide, this does not affect other autonomy cases

lawrence v texas

texas had a law that made it illegal to engage in deviant sexual conduct with partners of the same sex, this right to autonomy includes the right of people to engage in adult, consensual, sexual activities in the privacy of their own home, this right is a fundamental right, this case is not just about the gays

article 3 says, only cases and controversies, how is a state going to know what people are doing in their bedroom

in Lawrence v Texas, Lawrence was having a party in an apartment complex, gunshots were fired, people fled, left the door open a crack, neighbor called the cops, they responded to a weapons disturbance and the cops entered because the door was left open

washington v glucksberg

THE case everyone cites for being deeply rooted in this nation’s history and traditions, Court held that the right to assisted suicide is not a fundamental liberty interest protected by Due Process since its practice has been offensive to our nation’s history and traditions, state’s interests: preserving human life, protecting medical ethics, shielding disabled/terminally ill from prejudice, states interests outweighed autonomy rights in this case