Constitutional Law
Wilson Huhn
whuhn@uakron.edu
330-972-6791 (w)
216-831-2693 (h)
1. Constitutional questions
a) Governmental Power
i) One branch of the government lacks this power because it belongs to another branch
ii) The particular power in question does not fall within the scheme of checks and balances
b) Individual Rights
i) The government may have the power to adopt a law, but it cannot use that power to interfere with a particular individual right
ii) Values
(1) The right of the individual to believe, say, or do something
2. Lawrence v. Texas
a) Facts
i) Police encountered two men having sex with each other
ii) Men were charged & convicted of sodomy
b) Procedure
i) Established by the type of ruling be reviewed
(1) Three levels of review
(a) Rational basis
(b) Intermediate scrutiny
(c) Strict scrutiny
c) Issue
i) Form of issue
(1) Is (a certain governmental action) constitutional under (a certain provision of the Constitution)
ii) Does the Texas statute making it a crime for two persons of the same sex engaged in sexual conduct violate Due Process
d) Holding
i) Yes
e) Reasoning
i) Liberty
ii) Right to privacy
(1) Right of individual to be free from unwarranted gov’t intrusion into matters affecting
3. Hamdi
a) Two issues
i) May an enemy combatant be detained
ii) If so, is s/he entitled to a hearing
4. Five types of legal arguments
a) Textual
i) Identify the specific words of the Constitution that are to be interpreted
ii) Evidence – words of law
iii) Three types of textual arguments
(1) Plain meaning
(a) Attack plain meaning by arguing a different plain meaning or tha
xpression unius est exclusion alterius
1. “The expression of one is the exclusion of all others”
(ii) Ejudem egneis
1. “The existence of one thing implies the existence all other things similar”
(iii) No part of the law should be interpreted so as to render another part meaningless
(c) Choice of cannon is made by the judge
(3) Intra-textual arguments
(a) Use of context clues and other parts of a document to support the argument
(b) Intra-textual argument goes toward intent based on construction, organization, overall structure of the document
(c) Look at placement, context, structure
(4) Inter-textual argument
(a) Compare law under consideration to outside sources
(i) Prior law, rejected versions, etc.
b) Intent
i) Focus on the meaning of the law that the framers intended
ii) Evidence – Look at legislative history, former law, alternate versions of the legislations not adopted, committee reports, etc.
c) Attacking precedent
i) Three arguments
(1) Prior decision was not authoritative
(a) Case can be distinguished
(2) Prior decision has been overruled
(3) Prior decision should be overruled
ii) Evidence – Case law, language in opinions
d) Tradition
i) Focus on how the American people behaved based upon how they acted
ii) How have people considered the particular issue over an extended period of time
iii) Evidence – Historical practice, how people have behaved over time
e) Policy
i) Two steps
Factual prediction at consequences
