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Constitutional Law I
University of North Carolina School of Law
Marshall, William P.

I. Introduction
Three Standards of Review
I.                     Three Standards: there are 3 key standards of review when reviewing government action:
a.        Rational Basis: easiest to satisfy of the three; the governmental action will be upheld if:
                                                               i.      Legitimate State Objective: very broad; practically any type of health, safety, or general welfare goal will be found to be legitimate
                                                              ii.      Rational Relationship: minimal rational relationship between the legitimate state objective and the means chosen by the govt.; only if the govt. has been completely “arbitrary and irrational will this not be found
b.       Intermediate Scrutiny: heightened from rational, not as rigid as strict
                                                               i.      Important Objective: halfway between legitimate and compelling
                                                              ii.      Substantially Related Means: means must be “substantially related” to the important govt. objective
c.        Strict Scrutiny: hardest to satisfy; standard will be satisfied if the govt. shows a:
                                                               i.      Compelling Objective
                                                              ii.      Narrowly Tailored Means: the means must be narrowly tailored to meet the compelling governmental interest; must be a tight fit
II.                   Consequences of the Choice
a.        Burden of Persuasion
                                                               i.      RB: the person attacking the governmental action must bear the burden of showing that the action is U/C
                                                              ii.      IS: not certain
                                                            iii.      SS: government must show why the action is CL
b.       Effect on Outcome
                                                               i.      RB: govt. action will almost always be upheld
                                                              ii.      SS: govt. action will almost always be struck down; “strict in theory, but fatal in fact”
III.                 When to Use the Each Standard of Review
a.        Rational Basis:
                                                               i.      Dormant Commerce Clause
                                                              ii.      Substantive Due Process: as long as no Fm right is affected; if the state is pursuing a legitimate objective and using means that are rationally related to that objective, the state will not be found to have violated the SDPC
1.        The vast bulk of economic regulations will then be tested by RB and will usually be upheld
                                                            iii.      Equal Protection: we will use RB so long as: (1) No Suspect or Quasi-Suspect Classification is Being Used and (2) No Fundamental Right is Being Impaired
1.        However, RB will be used in EP for:
a.        Economic regulations
b.       Some classifications based on alienage
c.        Rights that are not Fm, but are still important, such as food, housing, and public education
b.       Intermediate Scrutiny:
                                                               i.      EP/Semi-Suspect: IS will be used for an EP claim (must be substantially related to achieve an important governmental interest) for:
1.        Gender Discrimination
2.        Illegitimacy
                                                              ii.      Contracts Clause: obligation of Ks Clause
c.        Strict Scrutiny:
                                                               i.      Substantive Due Process/Fm Rights: where a govt. action affects Fm rights where the P claims his SDP rights are being violated, the court will use SS; this would apply to Fm rights of privacy, such as marriage, child-bearing, controlling offspring, contraceptives, abortion, family relations, etc.
                                                              ii.      Equal Protection Review: SS is used to review a violation of EP rights if the classification relates either to:
1.        Suspect Classification: race, national origin, and usually alienage
2.        Fundamental Rights: right to vote, access to the courts, and interstate travel (state residency)
II. The Supreme Court’s Authority and the Federal Judicial Power
I.                     Marbury v. Madison

b.       Taxing and Spending
c.        Washington, DC
d.       Federal Property
e.        War and Defense: Congress can declare war, and can fund the armed forces
f.         Enforcement of the Post-Civil War Amendments: 13th, 14th, etc.; can even ban private intrastate non-commercial conduct
II.                   Powers of the Executive
a.        Execution of Laws: makes sure the legislature’s laws are “faithfully executed”
b.       Commander in Chief: CIC of the armed forces; directs and leads the armed forces
c.        Treaty and Foreign Affairs: PR can
                                                               i.      Make treaties with foreign nations w/ 2/3 Senate approval
                                                              ii.      Appoint ambassadors
                                                            iii.      Control foreign policy (implied from a need for one national voice)
d.       Appointment of Federal Officers: can appoint cabinet members, federal judges, and ambassadors
                                                               i.      As far as “inferior officers,” it is to the discretion of Congress whether these should be appointed by the PR, judiciary, or heads of departments (cabinet members); Note: Congress cannot appoint themselves, but can decide who can appoint
e.        Pardons: can pardon for federal offenses, but cannot pardon for impeachment or the convicted
f.         Veto: PR may veto any law passed by both houses, though this can be overridden by a 2/3 majority of each house; Note (not on exam): if PR doesn’t veto a bill within 10 days it becomes law, unless Congress has adjourned by the 10th day – pocket veto
III.                 Judiciary
a.        The federal judiciary may decide cases or controversies that fall within federal judicial power