Constitutional Law I Outline

LEDP Outline

I. 14th Amendment (Is for state, unless its 14th drawing from 5th Due Process)
a. P & I, Due Process, Equal Protection
i. No State shall make or enforce any law that abridges the privileges or immunities of citizens of the U.S. Nor shall any state deprive any person of life, liberty, or property without due process of law. Nor deny any person within its jurisdiction equal protection of the laws.
b. Problems of EPC
i. Public v. Private – public (gov’t) and private are split, if it is a public institution funded by the public government I will have a constitutional claim but if it is a private institution I do not have a constitutional claim so private institution can discriminate and public institution cannot.
ii. Sameness v. Difference – formal equality treats everyone the same and substantive treats people differently and difference should be taken into account.
iii. Assimilation v. Anti-subordination – the end goal of equality is assimilation through formal equality of everyone being the same. Anti-subordination, there can be a particular group but no group should be subordinated.
iv. Formal v. Substantive – formal equality on formal level – anyone in US can apply for a job, Substantive equality – true but not really because you have to take background and other factors into account, equality of technical level
v. Backward (remedial) v. Future-looking – affirmative action – we have to start where we are and look forward (formal, assimilation) to the future
vi. Class v. Classification – difference between gender (class) and women (classification) – if we are concern about classification for groups that are subordinated we worry about classification. = what is wrong is b/c or classification.
vii. Intent v. Effects – legislature has to intent what they are doing is discriminatory but we have to look at the effects, what happens by a certain law.
viii. Process v. Substantive – is everyone given the same process (ie trial, etc…) or substantive – no one should be denied anyways.
II. THEORIES OF CONSTITUTIONAL INTERPRETATION Note: How does Court evaluate constitutionality of laws? Limits to their power? As lawyers, we need to argue all these theories in court.
a. Originalist Theories of Judicial Review
i. Difficulties with originalist, consent-based theories
1. Was there consent to Constitution which is drafted by men who can’t envision what future would be like? Did framers all have the same thought?
2. Did Framers or founding generation intend their successors to be bound by their social contract?
3. Can judges of different persuasions come up with determinate answers to new interpretive issues from text?
ii. Texturalism: Primary metholodogy to interpret contracts, wills, statutes.Problem: Const. was drafted 200 yrs. ago, it can’t address all present issues.
1. Cause-Bound Textualist: Focus on the plain meaning of the constitution. How would reasonable person in Framer’s era understand the language? Says that one part of sentence should not be construed to render another part unnecessary. Ex. John Marshall in Marbury says Article III gave Judicial power but not mandamus. Problem is that Const. is too