CONSTITUTIONAL LAW – PROF. BRYANT, FALL 2005
TEXT: STONE, SEIDMAN, SUNSTEIN, TUSHNET, KARLAN
Three Standards of Review which continually reappear throughout Con Law:
1) Mere Rationality: Court will uphold governmental action if:
a) Legitimate State Objective: very broad category. Safety, health, ‘general welfare’ goal
b) Rational Relation: has to be a minimally rational relation between the means chosen and the state objective. Government cannot a completely arbitrary and irrational manner.
2) Strict Scrutiny:
a) Compelling Objective: the objective being pursued must be compelling and
b) Necessary Means: the means chosen must be necessary to achieve that compelling end. In other words, the “fit” between the means and the ends must be very tight. It must be necessary that there not be any less restrictive means that would accomplish the objective just as well.
3) Intermediate Review:
a) “Important” Objective: the objective must be important (half-way btwn legitimate and compelling)
b) ” Substantially related” Means: The means chosen must be substantially related – likewise, must be half way between rationally related and necessary.
I. Framing and Ratification
A. Inadequacy of Articles of Confederation
Articles of Confederation – created United States of America
Revolution fought under AOC
Recognized as nation
Little Jimmy Madison’s Problems with AOC:
1. Too little power in the central goverment
2. Trade Wars between the states
Interstate Disputes – Absence of interstate committee
o Failure to honor laws & judgments of sister states
o Harbor Access; Tariffs; Duties assessed on Interstate Commerce (IC)
o Barriers to IC considered very pressing problem
§ Some source of historical dispute whether this was critical period
§ Plebian (handout) says there may be to many merchants – Antifederalist
§ Merchants push for amendment to articles
§ Antifederalists saw some need for change to articles
Regulate commerce to counteract restrictions from other nations & could enforce duties and raise funds (Centinel p 8)
Mostly re: imports from other nations (Plebian p 11)
3. Minority rights would be overshadowed
4. Shay’s Rebellion- debtor’s relief legislation, internal violence (rebellion)
“Farm Aid” – Farmers in debt; going under
States did try to protect farmers
Started printing money (taking from debtors and giving to farmers)
Also simply dismissed or extended debt/loans
State debtor relief legislation – Madison says if farmers are in majority, they will be the majority in representation and can pass needed laws.
Jimmy Took this a step farther in the Federalist No. 10. Critical of small factions; Madison felt that they would accumulate power most in small government. Contrastly, in a large government, diversity of interests would help insure minority views are not oppressed; Factions controlled by “reasonable legislators”
5. State non-compliance with international law (associated with trade wars)
States were encroaching on feder
(to grant relief) – uniform rules for all states
o James Madison Federalist 51 – multiplicity of interests will make it difficult for someone to have a stable majority to overrule a minority. It’s diverse.
o Antifederalist said democracy would only work when everyone’s alike.
o Madison – harder to form a coalition across the diversity; so won’t have majority, so everyone will have to compromise. (can read p 7 to clarify Federalist No 10)
B. US Constitution and Bill of Rights
The Federalists felt the interests of the people are being served and protected as written into the constitution, no need to deliniate in a bill of rights those powers which are already implicit in the Constitution. James Madison felt there was already a system of checks and balances within federal structure intended to prevent factionalism and self-interested representation. Some of the State Rights Protection Articles of the Constitution:
· Article 1, Section 8, Clause 16 – states appoint officers of militia and conduct training according to Congress, who organizes arms and disciplines the militia
Article 1 Section 9 Clause 1 – Congress can’t overrule any current state laws re: importing people until 1808 (25 years)