How to Answer a Question:
-identify the legal issue (1)
-State the legal rule (R) or legal standard
-Analyze the issue and apply the rule to the facts (A)
-Conclusion (C)
-DO THIS FOR BOTH SIDES OF EACH ISSUE (do it as part of the discussion in the majority opinion or in the dissent)
Commerce Clause
-is it a “thing” or article in commerce y/n
-Does the activity substantially effect IC? y/n
-Is it economic or commercial activity y/n
-if yes, deference to Congress
-if yes, aggregation permitted
If no, little deference to Congressional findings
If no, aggregation not permitted
10th Amendment Issue
-Does it commandeer the states? y/n
-Is it a traditional state matter? (crime, education) y/n
-Right to control upbringing of one’s children? y/n
-Right to refuse med treatment? y/n
-Right to control one’s body? y/n
Does the govt. regulation significantly interfere with a person’s life, liberty or property?
●if yes, then continue analysis
●if no, then end there
Strict Scrutiny
-is there a compelling govt interest?
-is there a narrow tailoring (means chose must be necessary- means must be least restrictive alternative – a close fit)
If not a fundamental right, Use rational basis test
● Is there a legitimate government interest?
● Are means rationally related (loose fit ok)
Interpreting the Constitution
“Originalism”- view that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution. *Constitution should evolve solely by amendment.
*Constitution only applies if clear framers intent or language.
*If right not specified in Con. it doesn’t exist.
*Democracy requires decisions be made by officials elected by the MAJORITY.
“Moderate Originalism” – ascertain general intent not specific intentions; every perovision has a general concept but in each generation the courtes creat the own conception.
-Problem: all of the ones with Originalism, how to know the intent of framers.
“non-originalists” argue that the Con. evolve by interpretation and not only by amendment. “courts should go beyond the set of references of the Con.” Says originalism mis-defines democracy, it is not the same as majority rule. Democracy is based on upholding certain substantive values – right of minority.
*Con. should evolve by amendment and by interpretation.
Example: 2nd Amendment, right to bear arms/ well regulated militia
Should we interpret how the framers of the constitution at the time thought? Meaning states should be able to protect themselves from Federal government by arming, and not the right of every citizen to own a firearm? What role for tradition?
“Original Meaning” attributable to Scalia mostly. Con. is limited to Text or Original meaning as reflected in traditions and practices of the time.
Benefits: constraint on interpretation, avoid need of dertmining intent which is difficult.
Flaws: How do we know what the intent of everyone was at the time?
“Tradition” protect a right only if there is a tradition of social recognition.
Advantage: Constraint on courts, allows Con. to evolve based on experience.
Flaw: tradition is indeterminate. Assumes that tradition is right.
“Process Based Theory” John Hart Ely
Courts role is create a fair process for govt. and leave substantive choices to majority decision making.
Court only gets involved to allow it to perfect the process of decision making
Court should be originalist in matters concerning substance—the rights.
“Aspirationalism”
Court identifies those values that it regards as important to be protected from the majority.
Court decides based on tradition, precedent, social needs, content of Con.’s open provisions.
Advantage: allows evolution by interpretation
Flaw: no constraint on courts, inconsistent.
2nd Amendment Interpretations
3 Main Interpretations of 2nd Amendment from Emerson
1) “Collective Right” does not apply to individuals, recognizes merely the right of a state to arm militia.
2) some limited speicies of individual right. Only to be recognized pertaining to members of a functioning, organized militia. Reasonable relationship to militia.
3) Substantive Guarantee As A Whole recognizes the right for all to keep and bear arms..
Authority: United States v. Emerson
The Authority for Judicial Review
1) “A law repugnant to the constitution is void” Judiciary Act for example
2) Duty of judiciary is to say what the law is.
3) Supreme Court can’t enforce an illegal law
Why this is important
the controlling word. Court argues though that necessary can be interpreted in many ways, and should be looked at liberally. Two reasons,
1) The clause is placed among the powers of congress, not among the limitations of those powers.
2) It’s terms purport to enlarge, not to diminish the powers vested in the government. It’s purpose to be an additional power, not a restriction on those already granted.
It is concluded that all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
Three Principles Established
1) Federal government is supreme over the states.
2) Congress has expansive powers under Art. I to achieve its purposes.
3) The Constitution limits the ability of the states to interfere with federal activities through taxation or regulation.
Commerce Clause
Art. 1 § 8 – The Congress shall have the power… to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
*What is commerce? All business activities.
*What is “among the states”? Congress may regulate any commerce even if internal to one state- that has interstate effects (ie. can regulate those internal concerns which affect another state)
*What role of 10th Amend. (States powers)?
-Does not reserve a zone of activities for exclusive state control if Cong. has authority to act, can do the same as if there were no state governments.
Commerce Clause reaches three main categories of problems: (Perez v. U.S.)
1) when the channels of interstate commerce are being misused, ie shipment of stolen goods, kidnapping
2) protection of the instrumentalities of interstate commerce. Cargo planes, trucks etc.
3) Those activities affecting commerce.
