Con Law 1- Professor Joh- Spring 2017
CON LAW ATTACK DOCTRINES
Art. I: Congress
Art. I, § 8: The Congress shall have Power to … regulate Commerce w/ foreign Nations, & among the several States, & w/ the Indian Tribes;… to declare War, grant Letters of Marque and Reprisal, & make Rules concerning Captures on Land & Water”
Art. I, § 9[2]: Suspension Clause: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
Art. II: President
Art. II, § 1[8]: Oath: “Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the US, and will to the best of my Ability, preserve, protect and defend the Const of the US.”
Art. II § 2[1]: Commander in Chief: “The President shall be Commander in Chief of the Army and Navy of the US & of the Militia of the several States, when called into the actual Service of the US, he may require the Opinion, in writing of principal Officer in each of executive Departments, upon any Subject relating to Duties of their respective Office, & he shall have Power to Grant Reprieves and Pardons for Offenses against the US, except in Cases of Impeachment.
Art. II § 2[2]: He shall have Power, by and w the Advice & Consent of Senate, to make Treaties, provided 2/3 of Senators present concur; & he shall nominate, and by and w/ the Advice and Consent of Senate, shall appoint Ambassadors, other public Ministers & Consuls, Judges of the Supreme Ct, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Art. II, § 2[3]: The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Art. III: Judiciary
Art. III, § 1: “The judicial Power of US, shall be vested in one Supreme Court, & in such inferior Courts as Congress may from time to time ordain & establish. Judges, both of supreme & inferior Courts, shall hold their Offices during good Behaviour, & shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
life tenure for judges as long as “good Behaviour” (no high crimes and misdemeanors)
indep of fed judiciary – prevent tyrant/executive from ousting a govt officer on whim.
Once fed judge, salary can’t be cut. Protects position. Prevents exec from leveraging salary.
Art. VI, § 3: Oath to support Const: Senators & Representatives and members of the several state legislatures, and all exec and judicial officers, both of US and of the several states, shall be bound by oath or affirmation, to support this Const; but no religious test shall ever be required as a qualification to any office or public trust under the US.
Art. VI, § 2: Supremacy Clause: This Const, and the laws of the US which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the US, shall be the supreme law of the land, & the judges in every states shall be bound thereby, anything in the Const or laws of any State to the contrary notwithstanding.
1A: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the govt for a redress of grievances.
5A/14A: Due Process Clauses
5A: “nor shall any person… be deprived of life, liberty, or property w/o due process of law”
14A: “nor shall any State deprive any person of life, liberty, or property w/o due process of law…
9A: The enumeration in the Const, of certain rights, shall not be construed to deny or disparage others retained by the people.
10A: The powers not delegated to the United States by the Const, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
13A: neither slavery nor involuntary servitude, except as punishment for a crime, duly convicted, shall exist w/in the US.
GENERAL ANALYSIS
Governmental Actor
1) Does government actor have the power in the XN to do it?
2) If so, did actor execute it within Xnal means?
Look at means. How did the gov’t actor do it.
FUNDAMENTAL RIGHTS: When State (14A) or Fed (5A) takes away the right to do something.
Petitioner Arguments (Frame Right Broadly so you can
Choice to be who you want to be is…
4) Casey: Doesn’t have to be fundamental to have protections???
5) Lawrence: Right to associate/ behave how you want
Consensual, private, adults
Once you determine what type of right, Characterize it as Fundamental or Personal and choose scrutiny analysis:
ARBITRARY AND SHOCKS THE CONSCIOUS
FACT INTENSIVE AND BRING IN CASE LAW→ SPECIFICS
SCRUTINY ANALYSIS:
Strict Scrutiny: Only if Enumerated/ Fundamental. Found in tradition/ Xn
State interest: Must be COMPELLING (if not compelling argue this but if not concede it is compelling and go to Fit/ Means analysis)
Fit/Means: Needs to be Narrowly Tailored Fit
1) Does effect extend beyond scope of Act intended to protect?
2) Does it affect too many people?
3) Are there other avenues/ means available that are better suited to meet this interest. EXAMPLE: Accomplished better via…
4) Slippery Slope Argument: If they do this they will be able to…
Middle Tier:
State Interest: Must be COMPELLING (if not compelling argue this but if not concede it is compelling and go to Fit/ Means analysis)
Fit/ Mean: Means cannot be an undue/ substantial burden/ obstacle
Fact intensive:
Must be more than just “incidental impediments”
Ex. Waiting 24 hours to have abortion
Rational Basis with Teeth
State Interest: Really legitimate (lower standard than compelling, likely will have to concede that it is really legitimate depends on facts)
Fit/ Means: Really Reasonable
Lawrence: ban on same sex sodomy, means makes problems, how will they found out if done in private, may violate rights???
