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Constitutional Law I
University of Alabama School of Law
Fair, Bryan

Constitutional Law Fair Fall 2017

Exam Notes From Prof Fair
Objective questions: best answer is usually framed around a RULE. A test, a court ruling.
Anytime you make an argument, have a case authority to back it up.
Use the language of the court, frame the issues like the courts do
Look for rule statements by the court
Where does the court draw a limitation; Look for limiting language in cases to find boundaries of rules
Understand the plausible arguments that would be made by the court for or against any particular issue.
Show development of law, use chains of cases
When writing to prof. confronting federal law, I.D. source of power congress used
Know how an advocate for competing positions would argue for any side of an issue. 
Always be looking for factual triggers, if prayer, then cite the prayer cases, ect. (e.g. you need a gun issue for right to bear arms 2nd amendment)
Don’t impose a standard of review on the court case if the ruling doesn’t do so itself.
Must set out the controlling law/principals (FROM CASES) for each issue before arguing  
If you see, “Is this claim justiciable?” on the exam, asking to analyze standing.
Anytime you have a statute, be looking for vaugue/overbreadth
When you see: “Thorough Analysis” , must include each issue that you see, the principles that govern that issue, the arguments and materials one side will use, the arguments and materials the  other side will use, and who has the best argument.
Use syllabus pg 25. Guidelines: First paragraph, frame issues. Outline them all.
Long answer: Identify the issue (for every issue), Identify the rules / write a rules sections, Develop string of cases, Analyze, THEN give conclusion, don’t start with conclusion.
Spot the issue
General principles of the spotted Con. Claim, show general knowledge of the law for the claim, what has the court done?
Show the controlling cases that help both sides
Look for challengers to both sides of the claim
On These facts, who might raise challenges
E.g. Locke v. Davey; Davey thinks it’s FE unconstitutional not to let him use the $ to become a priest; if the court allows it, then a tax payer like Zelman will say it’s unconstitutional because of Est. Clause
How 1 set of facts can generate multiple constitutional issues and how you can addressed
Use the assigned cases as a guide for what issues are raised by the facts s
Look at page 25 for format
Begin with Standing for all issues, if there is an issue with standing
Before you get into the weeds set out the guiding principles
Then when you get into the weeds you link your arguments to the guiding principles you set you using majority/minority opinions
Open with the rules like LEEWS
But the rules are from cases, incorporation, principles of the amendments (e.g. they’re not absolute)

Standards of Review, (least to most restrictive)
1) Rational basis review
-Burden of justification on challenger
2) Intermediate scrutiny
3) Strict scrutiny: government must show compelling interest, and that the regulation is narrowly tailored.  
-Burden of justification is on government
These are presumptions towards the law
There is NEVER and absolute constitutional right
-The question is what restrictions the government has to justify
What are the key rights of people?
Rights framed by Constitution
Rights framed beyond the Const. aka the 9th Amendment (attempt to prevent interference with personal rights)
No right is absolute. All rights are bounded by some exceptions.
Enumerated by the constitution
Decisions by the courts, a.k.a. unenumerated right (privacy, marriage, etc.)
Key con law question: is claim to a right constitutionally framed or judicially implied.
What are the key powers of the government?
Engages principles of Federalism, sometimes horizontal (balance of power among three federal branches), sometimes vertical (balance of power between state and federal governments.)
Originalism: seeking to understand how the founders understood constitutional doctrines
Living Constitutionalism: seeking to understand how social values / cultural norms have emerged and changed through time and interpreting the constitution accordingly.
Constitutional Claims
Every case we read will feature a constitutional claim. Notice how plaintiff’s frame their constitutional claim, has to be done just like this. Must reference constitutional right or implied right. Every case will need to establish key claim, whether substantive or procedural, discrimination, extent of governmental powers, establishment claim, free exercise claim. {Discrimination claims fall under equal protection clause.}
Identify type of claim, source or claim, what party is saying about that claim, what government is saying about nature of that claim, how court reviews the plaintiffs position vs the gov’s position, who wins, rational for who won, procedural history

-As a general matter, Constitution applies to what the government can and can’t do, not private action
Standards of Review 
Rational Basis (presumption of validity) When legislation arrives at court it has presumption of validity. Challenger has burden of establishing irrationality, burdensomeness, bad legislative intent, etc. Court generally defers to the legislature.
Intermediate (Heightened) Scrutiny: two-part test. Burden on gov. to prove  
1. Important interest and
2. Regulation is substantially related to interest
Strict Scruity (presumption of invalidty): Heavy burden of justification. Two prong test. Gov has burden of justifying regulation. Very difficult to meet. Gov. must show
1. Compelling governmental interest
2. Regulation is narrowly tailored to accomplish that governmental interest
Traditionally, any legislation that places a burden on fundamental rights is usually reviewed strictly (e.g. Yoder)
However, when a court declares something a fundamental right, does not necessarily guarantee strict scrutiny standard of review will be applied.
Choice in review as to type of case has significant impact on result of case

Incorporation: Court applies bill of rights to state/local gov. through 14th Amendment

religious institution  

General policy of the people of NJ to reimburse bus fares for children going to schools, including religious schools.
Two claims: due process takings claim about transfer of money via taxes. Unimportant claim. Whether reimbursements to parents sending children to parochial schools violates the establishment clause. Everson loses on both claims.
Legal standard: no tax in any amount large or small can be levied to support any religious activities, or institutions… to teach or practice religion.
Majority: not a tax that supports religion. Permissible for the gov. to extend benefits of a general welfare program without regard to whether students are attending public or parochial schools. Failure to do so violates free exercise clause.
Dissent: is a tax that supports religion.

Lemmon – Financial Aid
-Passes Prong 1)+2)
-Fails Prong 3)

Legal standard
With very little exception, courts reviewing establishment clause concerns almost always apply the
Lemmon Test:
(1) Purpose: The statute must have a secular legislative purpose.
(2) Neutral: The statute’s principal or primary effect must neither advance nor inhibit religion.
– Neutrality safeguard. [Fair thinks prong is fairly redundant because this is covered by the establishment clause / free exercise clause. Gov supposed to make “no law” concerning establishment, not “neutral” laws.] (3) Entanglement: The statute must not foster “an excessive government entanglement with religion”.
– Example: policing, monitoring, regulating, etc. to ensure that funds are used in a secular fashion. See Everson.

Zellman- Public financial aid going to private Christian schools via school choice vouchers
-Passes prong 1)
-Passes prong 2) of neutrality because it’s a true private choice, nither purpose or effect of inhibiting/promoting religion (general program, open to broad class, 3rd party making choice towards religion)
-Court does not address prong 3)

-If true private choice then NO est. clause issue.

Legal Standard: Application of Prong 2 of the Lemmon Test requiring neutrality. Program neither advances nor inhibits religious because it is an instance of true private choice and an instance of where public aid is neutral in regard to religion. Driven by need. Court is not really applying Prong 3 of the Lemmon Test in Zellman.
Dissent: Because many parochial schools had lower tuition, vouchers disproportionately steer parents and students to private religious schools.