C122: Legal Concepts and Tests

Judicial Review

Established in “Marbury v. Madison,” it is the power of the Supreme Court to evaluate the constitutionality of the law, whether from federal, state, or local.

Court Jurisdiction

Essentially two ways in which normal court cases can be reviewed and “elevated” to a Supreme Court case. One way is original ——— , having the Supreme Court take responsibility for the case before any appellate review. Another is appellate ——— , where cases “climb up the ladder" of hierarchal judicial courts before they reach the Supreme Court.

Living-Breathing Document

Essentially a “loose” interpretation of the Constitution where it seeks to take liberties and “read between the lines,” as needed for the attitudes of the time.

Strict Interpretation

______ of the Constitution. When looking at the constitutionality of a law, think “did the Constitution actually say ANYTHING in plain, clear words regarding this matter?”

Originalism

A type of strict interpretation with a historical twist! Let’s debate on what is the original intent of the makers of the Constitution!

Standing

People do this position all the time, but it’s also the conditions of which cases are either “dead on arrival” or “surviving.”

Personal Injury

A condition for a case to have standing: Did the plaintiff suffer a damage, whether physically, emotionally, or indirectly (under “public interest”).

Ripeness and Mootness

______ is whether or not cases are brought “in time” where the damages are still ongoing. ______ is whether or not cases are brought in “too late” where the damages are no longer occurring. These are conditions for cases to be in standing.

Precedent or Stare Decisis

A dead, arcane concept where decisions in the court actually stay as the final ruling for later cases to reference. Sad times, innit?

1st Amendment

One of the two amendments students in this cases MUST, MUST!!!!! remember. Ever heard of freedom of speech? Freedom of press? Religion? Association? Petition to government? Remember these, big dummy! Beh! 👅

6th Amendment

It’s TWO for NINE! It’s TWO for NINE!!!!!!! Powell invoked the 14th in order give unfortunate parties a right to an attorney.

Nationalization of the 14th Amendment

When the Amendments (federal) apply to the states. A whole slew of Supreme Court cases gradually made it happen.

Due Process

Part of the 14th Amendment. Judges essentially use the language (No state shall deprive…) on everything that basically says “Back off, States! This is a citizen’s right!”

Fundamental Right

A highly contested topic that debates whether certain rights are DEFINITELY protected. Debating this is not fun, they’re mental.

Exclusionary Clause

These cops ain’t [WORD REDACTED] because Mapp gave us a protection against illegally obtained evidence in court.

Zones of Privacy

Established by the Griswold case, it ensures that people have privacy and autonomy on “sensual” freedoms. Protected by the 1st, 4th, 5th, and 9th Amendments and interpreted “living-breathingly.”

(un)Protected Speech

A contested concept where Judges play Splatoon and say “these are the conditions where speech is ______.” These speeches can be, symbolic, political, or forced.

Time, Place, and Matter

The ability for governments to control public speech where public safety may be jeopardized, under three conditions. Quiz: is it legal to say “Fire!” in a movie theater?

Content Neutral

When writing the language of a law, ask yourself: “Does the language puts certain protected categories such as race, gender, or religion in certain restraints over others?” If yes, then it is NOT ______.

Prior Restraint

The government’s ability to (or not) stop public speech before it happens or it is distributed. The government must show that the action is actually going to harm the public (many times government wants to protect itself under the term “national security.” Yeesh, the power of political language…)

Establishment Clause

White men in the colonies saw the Christian monarchy from the other side and said “Nah, we good. Let’s not have a religion be state-sponsored.”

Free Exercise Clause

We hate the Christian monarchy, but we love religion! No government interference unless we need to regulate it, my fellow citizens! Love, peace, and peace! Mwah!

Roth test

A three-prong legal test that puts the onus on states to dictate whether speech and material is obscene. The prongs are as follows:

1. Whether the theme of the material or speech is to the “average” citizen applying “community” standards, considered prurient (sensually arousing) interest.

2. Whether the material depicted is to the states considered offensive in applicable law.

3. Whether the material lacks any social, political, or in general “significant” merit to a person.

Lemon test

A three-prong test named after the fruit that creates a line where policies relating to religious schools or institutions do not break the Establishment clause. The three prongs are as follows:

1. The policy’s purpose must secular, or non religious.

2. The policy must not have the effect of advancing or hindering one religion over the other.

3. The policy must not be where school and government are not too entangled (involved) with one another.

That being said, later related cases ignored the 3rd prong just cause…….. :((((((

Tinker test

A “test,” but it is literally just asking: “Are my political or offensive speech disrupting the purpose of activities in the institution I am protesting near or to?”

Flast test

A two-prong test that opened the water gates for public to file under “public interest,” such as environmental, economic, or other that indirectly affects the person. The prongs are as follows:

1. Taxpayers need to show a relationship between themselves and the law.

2. Taxpayers need to show how the law exceeded constitutional limits.