US and Texas Constitutional Law Lecture Notes

Vocabulary-style flashcards covering concepts from US and Texas Constitutional Law, including Federalist Papers, Supreme Court cases, and legislative structures.

Faction (Federalist No. 10)

A number of citizens united by passion or interest adverse to the rights of others.

Controlling Factions (Madison)

Controlled by managing their effects through a large, diverse republic.

Griswold v. Connecticut ($1965$) Central Question

Where to find a ‘right to privacy’ not explicitly mentioned in the Constitution.

Robert Yates (Brutus) Prediction on Justices

Supreme Court justices would evade or ignore the Constitution’s text and not confine themselves to fixed rules.

Jacobson v. Massachusetts ($1905$) Holding

Compulsory vaccination was valid under state police power.

Article III ‘Good Behavior’

Refers to life tenure for judges, removable only by impeachment.

Silent Subversion (Yates)

The prediction that federal courts would ‘silently and imperceptibly’ subvert state powers.

Supremacy Clause (Article VI)

Establishes that the Constitution is the ‘supreme Law of the Land’ and federal law supersedes conflicting state law.

Causes of Faction (Madison)

Liberty, human nature, property distribution, religion, and other interests.

Federal Court Authority (Yates)

Yates predicted courts would interpret the Constitution to enlarge their authority and extend federal power.

Judicial Independence Requirements (Federalist No. $78$)

Good behavior tenure (lifetime) and fixed compensation.

Least Dangerous Branch (Hamilton)

The judiciary, because it has neither force nor will, only judgment.

‘Ambition must be made to counteract ambition’

Federalist No. $51$'s phrase referring to each branch having the means and motives to resist the others.

Penumbra Approach Critics

Argue that it allows judges to ‘discover’ rights not intended by the Framers.

Necessary and Proper Clause

Allows Congress to make all laws necessary for executing its enumerated powers.

‘Establish Justice’ (Preamble)

Primarily refers to creating a federal court system and fair application of law.

Penumbra (Constitutional)

The shadow or implied zone of rights emanating from explicit constitutional protections.

Section $6-a$ (Texas Constitution)

Added in $2021$ to protect religious services from government prohibition in response to COVID-$19$ restrictions.

Texas Bill of Rights Placement

Placed first in the constitution, not appended like the U.S. Bill of Rights.

Texas Bill of Rights (Article I) Sections

Contains $37$ sections.

Texas Legislature Schedule

Meets biennially for a maximum of $140$ days.

Plural Executive (Texas)

Means executive power is divided among multiple elected officials.

Inclusio unius est exclusio alterius

The principle that rights not specifically listed would be considered excluded or unprotected.

Texas Constitution of $1876$ Origin

Primarily a reaction against the Reconstruction Constitution of $1869$.

Year of Texas Constitution Adoption

$1876$.

Total Texas Constitutions

Texas has had $7$ constitutions throughout its history.

Neutrality Principle (Religious Aid)

Constitutional if aid is distributed through genuine private choice, such as students independently selecting schools.

Content-Based Restriction

A restriction that treats different speakers differently based on the subject of their speech.

Strict Scrutiny Review Standard

The government must prove a restriction promotes a compelling interest and is narrowly tailored.

First Amendment Absolute Status

Protections are not absolute because competing values such as reputation, health, or safety may outweigh expression.

Natural Rights Theory

Reflected in the Declaration of Independence’s statement that men are endowed with unalienable rights by their Creator.

Compact Theory

Treats individual liberties as products of a negotiated contract between citizens and government.

Texas Habeas Corpus (Section $12$)

Provides an absolute prohibition, stating it ‘shall never be suspended.’

Texas Grand Jury Protection (Section $10$)

Greater than the Fifth Amendment because the federal grand jury right is not incorporated against states.

Unprotected Speech Category (Abuse)

Child pornography depicting actual minors engaged in sexual conduct.

Miller Test Requirement $1$

Material must appeal to a prurient interest in sex.

Miller Test Requirement $2$

Material must portray sexual conduct in a patently offensive way.

Miller Test Requirement $3$

Material must lack serious literary, artistic, political, or scientific value.

Brandenburg Test (Suppression Criterion)

Speech must be directed at inciting imminent lawless action and be likely to actually produce it.

Symbolic Speech Protection

Applies when conduct communicates an idea capable of being understood by others, such as burning a flag.

Content Neutrality

Government does not discriminate against speech based on its subject matter or content.

Establishment vs. Free Exercise Tension

Government accommodation may appear to establish religion, while neutrality may appear to burden free exercise.

Traditional Public Forum

A place where First Amendment protections are strongest, such as a public sidewalk.

Overbreadth Doctrine

A speech law is unconstitutional if it regulates more speech than necessary to address the identified harm.

Rational Basis Review (Conduct)

Applies when government regulates conduct that only incidentally affects speech.

Employment Division v. Smith (Peyote)

Exemption denied because Free Exercise does not require exemptions from neutral, generally applicable laws.

Freedom of Association Source

Derived primarily from the First Amendment's rights to peaceably assemble and petition.

Endorsement Test (Justice O’Connor)

Asks if a reasonable observer would perceive the action as a government endorsement of religion.

Campaign Contributions and Expenditures

Held by the Supreme Court to be a form of protected political speech.

Political Speech Scrutiny Level

Strict scrutiny.

Actual Malice

Knowledge of falsity or reckless disregard for the truth; required for public figures suing for defamation.

Fighting Words

By their very utterance inflict injury or tend to incite an immediate breach of the peace.

Zelman v. Simmons-Harris Principle

Aid flowing through independent private choice does not constitute government establishment of religion.

Religious Freedom Restoration Act ($1993$)

Passed in response to Employment Division v. Smith to restore the Sherbert compelling interest test.

Sherbert Compelling Interest Test

Restored by RFRA as a matter of federal statute.

Endorsement Test Message

Asks if the government is sending a message that a religion is favored over non-religion.

Lemon Test Prong $1$

The government action must have a secular legislative purpose.

Lemon Test Prong $2$

The primary effect must neither advance nor inhibit religion.

Lemon Test Prong $3$

The action must not foster excessive government entanglement with religion.

Burwell v. Hobby Lobby Stores ($2014$)

Held that the ACA contraceptive mandate violated RFRA when applied to closely held for-profit corporations.

Substantial Burden (Hobby Lobby)

The ACA mandate was found to impose a substantial burden on the owners' religious exercise under RFRA.

Vagueness Doctrine

Laws are unconstitutional if an average person is unlikely to understand the terms with sufficient clarity.

McDonald v. City of Chicago ($2010$)

Incorporated the Second Amendment right against state and local governments through the Fourteenth Amendment.

Fourteenth Amendment Due Process Clause

The mechanism used in McDonald to make Heller’s individual right enforceable nationwide.

Presumptively Lawful Firearms Regulations

Prohibitions in sensitive places (schools) and possession by felons or the mentally ill.

District of Columbia v. Heller Primary Purpose

Self-defense within the home, unconnected to service in a militia.

Prefatory Clause (Second Amendment)

‘A well regulated Militia…’; announces a purpose but does not limit the operative clause.

Operative Clause (Second Amendment)

‘the right of the people to keep and bear Arms…’; protects an individual right.

Strict Scrutiny Requirement: Government Interest

The government must prove the restriction promotes a compelling interest.

Strict Scrutiny Requirement: Tailoring

The government must prove the restriction is narrowly tailored.

Texas Bill of Rights Article

Article I.

Texas Plural Executive Power

Power is divided among multiple elected officials.

Reconstruction Constitution Year

$1869$.

Zelman v. Simmons-Harris Voucher Stat

Upholding a program where $96\%$ of voucher recipients chose religious schools.

Inciting Imminent Lawless Action

The focus of the Brandenburg test regarding government suppression of speech advocating illegal action.

Prurient Interest

The first prong of the Miller test for legal obscenity regarding an interest in sex.

Patently Offensive Way

The second prong of the Miller test regarding the portrayal of sexual conduct.

Serious Value Lack

The third prong of the Miller test regarding literary, artistic, political, or scientific worth.

Conduct incidentally affecting speech

Triggers rational basis review where government shows action is related to a legitimate purpose.

Sidewalk at a courthouse

The transcript identifies this as a traditional public forum where First Amendment protections are strongest.

Reasonable Observer Knowledge

Under O’Connor’s test, this observer knows the history and context of a display.

Actual Malice components

Knowledge of falsity or reckless disregard for the truth.

Fighting Words direction

Unprotected specifically when directed at a specific person.

RFRA standing for

Religious Freedom Restoration Act.

Legitimate governmental purpose

The standard the government must meet under rational basis review.

Less restrictive means (Hobby Lobby)

Extending the nonprofit accommodation to for-profit companies.

Offensive or opprobrious language ordinance

Likely unconstitutional under the vagueness doctrine.

Justice Scalia's Heller opinion

Held the prefatory clause does not limit or expand the operative clause.

Militia service in Heller

The Court held the individual right to bear arms is unconnected to service in a militia.

Handgun possession within city limits

The specific ban in Chicago that was struck down after McDonald.

Second Amendment Clauses relationship

The prefatory clause announces a purpose while the operative clause protects the right.

Texas Habeas Corpus wording

Texas states that the writ ‘shall never be suspended.’

Unprotected Speech (illegal acts)

Speech that is likely to produce imminent lawless action.

Traditional Public Forum Location

Public sidewalk.

Texas Bill of Rights count

$37$ sections.

Maximum day count (Texas Legislature)

$140$ days.

COVID-$19$ Response (Texas)

Resulted in Section $6-a$ to protect religious services from prohibition.

Hobby Lobby holder type

Closely held for-profit corporations.

Madison's Faction Definition

Citizens united by passion or interest adverse to the rights of others.

Large Republic Function (Madison)

Best controls the effects of faction.