- Nov 2021
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mmcr.education mmcr.education
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Dissent by Stevens
Stevens dissented but did not write a separate opinion (or at least not one that appeared in our textbook.
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Dissent by Justince Kennedy
Justice Kennedy concurred with the Court's opinion.
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The Court agrees and argues that the most important principle behind the First Amendment is that government may always prohibit the expression of an idea whenever society finds the idea itself offensive or disagreeable. As a result, the Texas law is a permissible regulation of speech.
The opposite of this.
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Looking at Johnson's actions, there is no evidence of an expressive element in his actions.
There WAS an expressive element in his actions.
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Second Amendment
First Amendment
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an act of Congress
a state law
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Yes. By a vote of 5‐4 the Court ruled in favor of Johnson.
Does not specify who wrote the Court's opinion. (It was Justice Brennan.)
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Arthur Smith, painted an American flag on his bare chest, but painted it upside down.
The protester was Gregory Lee Johnson, and his action was to douse a flag in gasoline and set it on fire.
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491 U.S. 397
Correct format: 491 U.S. 397 (1989)
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mmcr.education mmcr.education
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free exercise
establishment
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Stevens: dissenting
There is no separate opinion from Stevens.
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dissenting
concurring
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turns
does not turn
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Here, the program is not one of true private choice. It is not neutral in all respects toward religion and is part of an attempt to channel funds to wealthy citizens who send their children to religious schools. Only certain religious groups are free to participate.
The Court found exactly the opposite of this.
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violates
does not violate
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7–2
5-4
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14th
First
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only 10 percent of the private schools available were religious, and only 5 percent of students used their vouchers at private schools.
80 percent of the private schools were religious, and 97 percent of the students used their vouchers to attend the religious schools.
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Baltimore
Cleveland
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(1982)
2002
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Epstein and Walker, p194
Correct format: 536 U.S. 639 (2002)
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- Oct 2021
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mmcr.education mmcr.education
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But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE.
What is he saying here? How does confidence reconcile inconsistencies? Is he saying that the Constitution is like the stock market, where the value of something depends on public confidence in it?
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In the Legislature of the Union alone are all represented.
Are they, though? Washington, D.C. has a delegate, but that delegate does not get a vote. What about Puerto Rico? Other U.S. territories? Have there been any Supreme Court cases on the constitutionality of those Americans not being represented in Congress?
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It has also been insisted
By whom? Or is this a straw man argument?
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mmcr.education mmcr.education
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Roberts: dissenting
Justice Roberts was not on the court at the time. Justice Vinson was joined by Justices Reed and Minton in his dissent.
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Jackson: dissenting
Jackson concurred.
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Holding
The author of the opinion (Justice Black) is not specified.
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but Congress has clearly chosen to rid itself of that power and give it to the president
This is just flat-out not true, nor does the Court opinion state it to be true.
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his order commands the steel industry to follow policy set by Congress
The Court determined that Truman's order did NOT did not direct the industry follow to a Congressional policy, but rather "a presidential policy to be executed in a manner prescribed by the President..."
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can
The Court said that Truman's action could NOT be upheld as an exercise of his military power as Commander-in-Chief.
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the Court ruled against Youngstown Sheet & Tube
The Court ruled in FAVOR of Youngstown Sheet & Tube.
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Congress
It was not regarding the power of Congress to do so, but rather the power of the president.
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the union
Does not specify which union. It was the United Steelworkers Union.
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sugar manufacturing
Factual error. The dispute was in the steel industry, not the sugar manufacturing industry.
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Vietnam War
Factual error. The dispute occurred during the Korean War, not the Vietnam War.
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- Sep 2021
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mmcr.education mmcr.education
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the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.
Is Marshall overreaching a bit here by extrapolating the values of the U.S. Constitution to those of other countries' constitutions, or has that statement generally held true?
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a legislative act contrary to the constitution
Isn't that kind of what an amendment is? Is he saying here, intentionally or unintentionally, that an amendment can't be considered law?
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mmcr.education mmcr.education
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I'm asking, does the Constitution of the United States permit a State or a city to say, we give everybody in this city police protection, but not churches? We give everybody fire protection, but let the church burn down.
Justice Breyer takes a tactic similar to Justice Alito in providing hypotheticals that cast the respondent's position in a negative light. He says he fails to see a difference between providing funds for playground resurfacing--a potential health issue if the playground surface is in bad shape--and providing things such as police and fire protection or vaccines under a public health program. Here he is making his view on the constitutionality of such an approach more explicit than Alito did, though, by asking if they should let a church burn down rather than send in the fire department just because it is a religious institution. It seems pretty obvious this is more or less a hypothetical question.
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So if you have a -- a synagogue that is at high risk for an attack by an anti-Semitic group or a mosque that is considered to be at high risk for attack by an anti-Muslim group, would the Missouri constitution permit the erection of bollards like we have around the court here?
I have little doubt that Alito took the majority opinion on this case. The hypothetical quests he poses here offer a pretty scathing rebuke to the respondent's logic on not only legal but emotional grounds. He is putting the respondent in the uncomfortable position of having to argue in favor of denying funds to victims or potential victims of terrorism on the grounds that they are religious institutions, which casts it in a light of being discriminatory rather than a reasonable precaution against unconstitutional behavior.
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there's something attractive about having some play in the joints where States can go their own way and make their own choices.
Justice Kagan is the other justice besides Sotomayor who makes some comments that are more favorable toward the dissenting view. Here, she is essentially asking, "Why NOT allow states to make their own choices in regards to whether or not they will give funds to religious institutions? How is that unconstitutional if it doesn't violate the Establishment clause?" She seems to be hinting that a ruling in favor of Trinity Lutheran would be an infringement on states' rights.
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No one is asking the church to change its beliefs. In fact, no one is asking the church as a condition of saying don't use what we give you for religious purposes; they're not even doing that. They're just saying we don't want to be involved with the church.
Justice Sotomayor makes some of the strongest comments that would seem to favor the dissenting view. Essentially, she is arguing here that nothing is being forced upon the church in regards to changing their religious views or practices and they are not being deprived of anything they already have. The state is simply declining to give the church these new funds for the playground because the state does not want to be financially involved with a church.
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You just want an injunction for the future.
What was he asking for an injunction against? Against not giving money to Trinity Lutheran for their playground repair? I'm not clear on that part.
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Everson case back in 1947,
What is the case she is referring to and what was the ruling in that case?
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