Constitutional Law I Outline

 
Outline Con Law I, Levinson, Fall 2014
I.          Basics
            A.        Constitution
                        1.         Articles I, II, III: Branches of govt
                                    i.          II: Executive Branch
                                    ii.         III: Appellate Jurisdiction and Original Jurisdiction
                        2.         Bill of Rights: Limitations on Federal Government
                                    i.          Most amendments involve voting rights
                                    ii.         Most significant changes involve civil war amendments
                        3.         Types of interpretations
i.          Originalist: What it meant when it was created (history)àintent of the framers and understanding of text when it was ratified
ii.         Using Broad Concepts to interpret the constitution
iii.        Using tradition: sometimes we don’t get tradition right
iv.        Social Policy
            B.        Standard of Review
                        1.         Strict Scrutiny *Burden of Proof on Govt*
                                    i.          Must show govt has compelling interest, and
ii.         Law narrowly tailored to interest: (1) Need to try other alternatives, (2) Cant unduly burden people, (3) must be temporary
                                    iii.        Race, national origin, alienage w/ exceptions
iv.        Applies when there is a suspect class or a fundamental right (right to vote, right to marry, interstate travel, right to procreate)
a.         Must be infringement of fundamental right or use rational basis
                        2.         Intermediate Scrutiny
                                    i.          Must show important govt interest, and
                                    ii.         Law bears a fair and substantial relation to the interest
                                    iii.        Govt has burden
                                    iv.        Gender & non-marital children
                        3.         Rational Basis w/Bite
                                    i.          Higher than rational basis
                                    ii.         Used in Romer, Cleburne, Moreno, and Windsor
                                    iii.        Challenger has the burden of proving no purpose
4.         Rational Basis *Burden of Proof on Challenger*
                                    i.          Must show govt has a legitimate interest, and
                                    ii.         Law rationally related to interest     
                                    iii.        Challenger=burden
                                    iv.        All other equal protection laws—Economic Liberties
v.         Any conceivable rational basis suffices even if not purpose of the law—if there is a plausible reason then allowed
            C.        Supreme Court
                        1.         Lifetime Appointments b/c of Marbury v. Madison
                        2.         Why do the American People have confidence?
                                    i.          Some don’tà ct today is more partisan than anytime ever (5R,4D)
ii.         All appointments besides Kagan were on the ct of appeals for many yearsàwe knew how they would rule
            D.        Approach to a question
                        1.         What is the classification?
i.          If law is facially neutral then must show the purpose was to discriminate
ii.         Otherwise law is discriminatory on its face
iii.        Can you use an as applied test to challenge the law?
                        2.         Is there a suspect class?
                                    i.          Immutability of trait
                                    ii.         Lack of political power
                                    iii.        History of Past discrimination
                        3.         What level of scrutiny should be used?
                        4,         Does the Govt action meet the level of scrutiny
i.          Overinclusive if it applies to those who need not be included to achieve the govt prupose
ii.         Underinclusive if it does not apply to individuals who are similar to those to whom the law applies
II.        How did the ct get to be so powerful?
            A.        Marbury v. Madison
1.         Facts: Adams finishing pres. and appointed Marburyàcommission stopped by Jefferson, Marbury appeals for writ of mandamus
2.         Issue: Can Marshall order a cabinet member to not listen to the Pres? No
3..        Rule and Reasoning:  Obviously Marshall couldn’t do that because it would have lost the ct its power, Judiciary act of 1789 would be fed. Act Ct needed to decide, judiciary decides the rights of individuals, but cant decide orders of the exec., basically said ct has the right to tell pres. to do something they don’t want to do–
4.         Judiciary Act of 1789 v. Sup. Ct: Act is invalid, Retain power in sup. Ct. to tell legislature they got it wrong, unconstitutional bc it expands the authority of sup ct. beyond what is in the constitutionàConstitution> act
5.         Gave sup. Ct. judicial review for non-discretionary exec. acts and legislative acts
III.       Second Amendment
            A.        Dist of Col. v. Heller (5-4)
1.         Facts: Heller is a DC police Officer but can’t have handgun in home unless trigger locked
2.         Issue: DC regulation that banned handguns in the home: is it against 2nd amendment rights? Yes, allowed in home, but limits on who and what type
                        3.         Rule and Reasoning:
-Scalia (Majoriy): Prefatory clause establishes the purpose but is not a restraint, 1939 Miller: says wrong type of weapon so can still stand, rights of people are individual and arms is anything used to protect, look to 4 different state constitutions that say we have a right to self-defense
–DC is a federal jurisdiction and bill of rights applies to federal, cannot put an absolute ban on possessing handguns
*Handgun ordinance would not have even survived rational basisàbut does not say that is the actual standard*
-Stevens (dissent): says no we are talking about the subset of militia, 1939 Miller: says shotgun was not a weapon of military so individuals could not bear arms outside 2nd amendment, military typically stored weapons in home
-Breyer(dissent): Says right to self-def. in home is nowhere in 2nd amendmentàall about serving, talks a lot about balancing interest
IV.       Application of Bill of Rights to States
            A.        Rejections of Application before the Civil War
                        1.         Barron v. Mayor and City Council
                                    i.          Takings clause doesn’t apply
                                                a.         Framers did not intend to apply to states
b.         Should have sued state govt under state constitution, state constitution can be more restrictive than federal constitution
            B.        Civil War
1.         14th amendment: NO state can deny privileges and immunity or life, liberty, and property w/o due process and guarantees equal protection
2.         Slaughter House cases (shot down incorporation of 14th amendment)
            i.          Butchers didn’t like monopoly on one slaughterhouse
            ii.         Defer to language: Citizens of US not citizens of state
iii.        Dissent: Refer to rights existed prior to the clause so concept is that this clause did nothing that wasn’t already protected by constitution
                        3.         Saenz v. Roe (Welfare benefits of CA)
i.          Talk about right to migrate and to become a full citizen of the new state
ii.         This was a right before the 14th amendment
4.         Bottom line can’t say 2nd amendment applied to states through Privileges and Immunities
            C.        Due Process
                        1.         Procedural due process: More like criminal procedure, jury trial
2.         Substantive due process: comes from the Magna Carta, Liberty is protecting
3.         Duncan v. Louisiana
i.          Rights incorporated to states: compensation for prop. Taking, right of speech, press, and religion, unreasonable search and seizure, right to counsel, to confront witnesses, and witness protection
ii.         Right to trial by jury applied to states here because protected under due process clause
                        4.         M