1) Roadmap to Con Law—Major Doctrines/Clauses
a) Federalism—the state and federal governments co-exist. Main principles:
i) Limited, Enumerated Powers: The powers of the federal government are limited to those that are enumerated in the Constitution.
ii) Separation of Powers: each of the three branches has its own enumerated powers, and one branch may not take actions reserved by the Constitution to one of the other branches.
iii) Congress’ Commerce power: most important power
b) Dormant Commerce Clause: the mere existence of the federal commerce power restricts the states from discriminating against, or unduly burdening, interstate commerce.
c) Due Process Clause of the 14th amendment has two different effects:
i) Substantive Due Process limits the substantive power of the government to regulate certain areas of human life.
ii) Procedural Due Process imposes certain procedural requirements on government when it takes an individual’s life, liberty, or property.”
d) Equal Protection Clause of the 14th amendment prevents government from making certain types of classifications, mainly one that unfairly treat similarly situated people differently.
e) Freedom of Expression under the 1st amendment protects speech against government interference.
f) Freedom of Religion is also protected by the 1st amendment. Two distinct clauses in the amendment dealing with religion.
i) Establishment Clause prevents the government from establishing a religion; thus, preventing endorsement or support of religion generally.
ii) Free Exercise Clause prevents government from outlawing or seriously burdening a person’s pursuit of whatever religion he chooses.
2) STANDARDS of REVIEW
a) United States v. Carolene Products Co: SC articulated the idea that different standards of review were necessary in analyzing constitutional claims.
i) Rational Basis Test: Legitimate State objective and Rational Relation
ii) Intermediate Scrutiny: Important objective and Substantially related
iii) Strict Scrutiny: Compelling Interest and Necessary Means
Standards [easiest…strictest]
Rational Basis Test: A law will be upheld if it is rationally related to a legitimate government purpose.
1) There is a legitimate state objective and
2) There is a rational relation between the means chosen by the government and the state objective.
© Only if the government has acted in a arbitrary and irrational matter will this rational link not be found.
©The governments’ objective need only be a goal that is legitimate for the government to pursue; it need not be the actual purpose of the litigation.
Intermediate Scrutiny: A law will be upheld if it is substantially related to an important government purpose.
1) The government objective has to be important and
2) the means chosen by the government must be substantially related to the important government objective.
Strict Scrutiny: A law will be upheld if it is necessary to achieve a compelling government purpose.
Only satisfied if the government satisfies two requirements:
1) The objective being pursued by the government must be compelling and
2) The means chosen by the government must be necessary to achieve that compelling end.
© Requires proof that the law is the least restrictive or least discriminatory alternative.
Burden of Persuasion
The individual who is attacking the government action
Depends, but usually on the government
The governmental body whose act is being attached
Effect on Actual Outcome
Governmental action will almost always be upheld.
50-50
Governmental action will almost always be struck down.
b) When to use Standards:
i) Rational Basis
(1) Dormant Commerce Clause
(a) Whether state regulation that affects interstate commerce violated the Dormant Commerce Clause. The state regulation has to pursue a legitimate state end, and be rationally related to that end.
(b) Later test: the state’s interest in enforcing its regulation must also outweigh any burden imposed on interstate commerce, and any discrimination against interstate commerce.
(2) Substantive Due Process –
(a) So long as no fundamental right is affected
(i) i.e. economic regulations
(3) Equal Protection—
(a) So long as:
(i) No suspect classification is being used and
(ii) No fundamental right is being impaired.
1. Ex. food, housing, free public education.
(4) Contracts Clause—some aspects of the obligation of contracts clause.
ii) Strict Scrutiny
(1) Substantive Due Process
(a) Where the governmental action affects fundamental rights, incl. “Privacy” cluster of marriage, child-bearing and rearing.
(2) Equal Protection
(a) Where the classification relates either to a suspect classification or a fundamental right.
(i) Suspect Classifications
1. Race
2. National Origin
3. Sometimes Alienage
(ii) Fundamental Rights
1. Right to vote
2. Access to courts
3. Right to interstate travel
(3) Freedom of Expression in a content-based way
(4) Freedom of Religion
iii) Intermediate Scrutiny
(1) Equal Protection/Semi-Suspect
(a) Will be used first to judge an equal protection claim, where the classification being challenged involves a semi-suspect trait.
(i) Gender
(ii) Illegitimacy
(2) Contracts Clause
(a) Certain conduct under the obligation of the contracts clause
(3) Free expression/non-content based
(a) 1st amendment challenges where a governmental action purports to impair expression, but in a non-content based way. Ex. “time, place, and manner” regulations.
3) The Constitution of the United States (1787)
a) Preamble
b) Article 1
i) Creating congress
ii) All legislative power to congress
iii) Senate and house
iv) Equal representation of each state
v) Representation in the house according to population of free persons plus 3/5th of other persons. (page 25)
(1) Southern slave holding states would have benefitted from considering slaves a full person.
(2) Northern states would have wanted slaves not to count at all
vi) Power to tax individuals directly
c) Article 2
i) Establishes the presidency
ii) Executive power of one president
d) Article 3
i) Establishes judiciary… one Supreme Court and inferior courts are up to congress.
e) Article 4
i) Relationships between the states
ii) How one sister state interacts with another
f) Article 5
i) How amendments to this constitution shall be made
g) Article 6
i) Establishes the supremacy of federal law
ii) Requirement that federal officers and state officers take an oath to support constitution
h) Article 7
i) Process for ratification of the conventions of 9 states shall be sufficient for the establishments of the constitution
(a)
1) BACKGROUND and THEMES
a) The Constitution’s Functions & Purposes [including where it governs]
i) MARSHALL COURT:
(1) Louisiana Purchase (1803):
(a) President Jefferson was not sure if it was Cons
s of the US and of the state wherein they reside”
(b) Dissent [Harlan]:
(i) “The People of the US who ordained the Constitution never supposed that a change could be made in our system of government by mere judicial interpretation.”
1. Argues the majority is construing the Constitution to get the result they want.
iv) REHNQUIST COURT:
(1) Rasul v. Bush (2004): Foreigners are entitled to due process if the US has PJ over the custodian.
(a) FOREIGNERS held at Guantanamo Bay, Cuba
(b) Majority= Have a habeas corpus right in Guantanamo Bay.
(i) Stevens: Reasoningà
1. Statutory statute had long been overruled, the only thing that matters is that you have personal jurisdiction in the habeas court over the person who has custody of the detainee, not the actual detaintee.
a. PJ over the CUSTODIAN.
2. Guantanamo Bay is effectively part of the US.
a. Opinion states both, but doesn’t favor either.
(ii) These cases decided what foreigners are entitled to in terms of due process.
(c) HELD: Those being detained in Guantanamo Bay, Cuba have the right to have a habeas corpus petition heard in federal court.
(i) Due process is required and thus the Mathews v. Eldridge three part balancing test must be applied.
1. Importance of the interests to the individual
2. Ability of additional procedures to increase the accuracy of fact-finding
3. The burdens imposed on the government by requiring the procedures.
(d) The court held the US exercises “complete jurisdiction and control” over the base and may continue to exercise such control permanently if it chooses.
(i) As such, Guantanamo Bay is in every practical respect a territory of the US.
b) Creation and Amendment:
i) Ratification= Article VII
ii) Amendments=
iii) MARSHALL COURT:
(1) Introduction: Early Years
(a) Each justice had to ride circuit and no Chief Justice held office for more than six years
(b) John Marshall was elected Chief Justice in 1801 and served until 1835.
(i) Marshall focused on the purposes of the various constitutional provisions and construed them to most effectively fulfill those purposes, often making his opinions more expansive than necessary for the specific cases involved
(c) There is no express power that gives the Supreme Court power to rule on the constitutionality of acts of Congress or state statutes or power to review decisions of state courts
(i) Article III: merely extends the judicial power to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made…under their authority”
1. Section 2 spells out cases where the USSC has original jurisdiction and in all other cases the court shall have appellate power.
(d) Judiciary Act of 1789
Created the lower federal courts as permitted by the Constitution, but did not
