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Constitutional Law II

Constitutional Law II. Mr. Wiecek. First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble,

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Constitutional Law II

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  1. Constitutional Law II Mr. Wiecek

  2. First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  3. First Amendment 1. Clear and present danger (c&pd) 2. Categorization 3. Hostile audience 4. Symbolic speech 5. Free exercise of religion 6. Establishment of religion

  4. Rationales for free speech • “marketplace of ideas”/search for truth • democracy & self-governance • individual dignity, autonomy, & self-fulfillment

  5. Historical background • English: • licensing (prior restraint) • seditious libel • truth not a defense • bad tendency • American • Zenger’s Case (1735): juries • Levy vs. Levy on framers’ intent • 1791-1917

  6. Clear & present danger Proximate cause Bad tendency

  7. Advocacy-incitement distinction Hand in Masses Publ. speech advocacy incitement act Dennis

  8. Clear & present danger test speech substantive evil

  9. Race and equal protection Race- neutral Race-explicit Strict scrut. Korematsu Purpose- impact Wash. V. Davis Burden minorities Affirmative action Croson, Adarand Benefit minorities ?

  10. The basic paradigm of American constitutional law governmental power individual liberty

  11. Dual federalism Federal State

  12. No-man’s land State Federal the no-man’s land

  13. The public-private distinction Private Public government can regulate immune from regulation

  14. Ideological continuum L C Liberal Conservative Epstein Bork

  15. Judicial activism economic non-economic L C (Epstein) activism L judicial self-restraint C (Bork)

  16. prosecutor report presentment House of Reps grand jury indictment impeachment criminal trial trial before U.S. Senate

  17. Regulation vs. takings taking regulation redistribution (Calder v. Bull) police power non-compensable compensation required

  18. Dolan balancing test state’s interest impact of regulation condition of permit state’s interest impact of regulation Ends test? Means test?

  19. Scrutiny levels ends means strict “compelling” “narrowly tailored” “rationally related” “legitimate” deferential

  20. Scrutiny levels (intermediate) deferential strict

  21. Umbras & penumbras

  22. Lowi, End of Repub. Era Liberal Conservative “new” “old” Capitalism Moral values Coercive gov’t [Left/ socialist] Free markets Individualism Amorality

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