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Constitutional Law I
Santa Clara University School of Law
Hsieh, Marina C.

1.      Constitutional Intepretations
A.    originalism-judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution – view – desirable to limit unelected judges in a democratic society
B.    non-originalism-courts should you be on that set of references and enforce norms that cannot be discovered within the four corners of the Constitution; view – essential so that the Constitution does not remain virtually static and therefore can evolve
C.    Forms of Constitutional Interpretation
i.        Textual – originalist style argument (using the words and construction of words) – Interpretation of Necessary
ii.      Intent of the Framers – framers intend did at the time or if the framers were shot forward 200 years (wire tapping and phone did not know about some free reign or infringe upon right of privacy – Baltimore v Barron)
iii.    Historical Practice – what those words they meant at the time they were written, this is what the framers did (Roe v Wade) – abortion allowed; Slide around – any prior to case at hand
1.     historical meaning – at the time the words were added to the Constitution; Civil war amendments
iv.    Precedent (Doctrine) – Primary part of the answer (use precedent and expand from there)
v.      Prudentialism – common sense arguments (real word) – Consequence arguments “Power to tax is power to destroy”
vi.    Constituional Structure – counter majoritarian argument (
1.     separation of power; Commerce Clause; Dormant Commerce Clause
2.     Lawrence v Texas
a.      Constitutional Structure
i.        Democracy – let the legislative decide
ii.      Individual rights – courts to protect the minority
vii. Ethos – traditional
1.     Lawrence v Texas
a.      Ethos – Kennedy argument is based on ethos (the most obvious example of the Ethos opinion)
i.        Says it is just wrong
2.     Introduction
A.    Three Standards of Review
i.        three standards:
1.     mere rationality: of the three standards, the easiest to satisfy is t

d. In other words, the fit between means and the and must be extremely tight. (It’s not enough that there is a rational relation between means any end, which is enough under the mere rationality standard.)
i.        No less restrictive alternatives: in practice, this requirement that the means be necessary means that there must not be any less restrictive means that would account government’s objective just as well.
3.     Middle level review:
a.      important objective: here, the governmental objective has to be “important” (between legitimate and compelling).
b.     Substantially related means: Ann, the means chosen by the government must be substantially related to the important government at objective (between rationally related and necessary).
ii.      When used:
1.     mere rationality:
dormant Commerce Clause: