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Constitutional Law Review Lecture
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Constitutional Law Review Lecture

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Transcript

  • 1. American Constitutional Law Review
  • 2. Lawmakers
    • Legislative Branch = lawmakers
    • But they do much more:
      • Administrative powers
      • Taxing & Spending powers
      • Supervisory powers
      • Establishment powers
      • War powers
      • Regulatory powers
  • 3. Commerce Clause
    • Art I, § 8: “The Congress shall have the power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”
    • What's really at issue here?
      • Federal v. State powers
    • Key questions are:
      • What is “interstate”
      • What is “commerce”
  • 4. Necessary & Proper Clause
    • Congress may choose any means, not prohibited by the Constitution, to carry out its express authority.
      • Necessary means useful or desirable, not indispensable or essential.
      • This does not equate to limitless authority.
        • Must further enumerated power
        • Must not violate the Constitution.
  • 5. Federal v. State: Which Controls?
    • Power Breakdown
      • Those granted exclusively to the federal government or expressly denied to the States,
      • Those exercised concurrently with the States.
        • Supremacy Clause
      • Those reserved to the States exclusively,
        • because they do not fall within enumerated powers of the Congress.
        • 10 th Amendment
  • 6. Executive Power
  • 7. Limits on Power: The Jackson Approach
    • Concurring opinion set forth three zones of Presidential authority.
      • President has most power when he acts pursuant to express or implied authorization from Congress.
      • President's power is weaker when acts absence Congressional authority.
        • He must rely solely on his own independent powers.
      • President's power is weakest when he against the wished of Congress
  • 8. Treaty v. Executive Agreement
    • Treaty = an agreement between U.S. and foreign country that is negotiated by President and ratified by Senate.
    • Executive Agreement = agreement between U.S. and foreign country that is effective when signed by President.
  • 9. War Powers
    • An invitation for a struggle:
      • Article I give Congress power to declare and fund military.
      • Article II makes President Commander-in-Chief and gives him power to use military to “defend” the country.
  • 10. Article III
    • The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
  • 11. What can Federal Courts Hear?
    • Three-Step procedure to determine jurisdiction:
      • nature of the dispute – subject matter jurisdiction
      • case or controversy
      • political question
  • 12. Judicial Review
    • Who decides whether a law is violates the Constitution?
    • Art. III does NOT expressly provide for judicial review of constitutional questions.
      • Marbury v. Madison – Court said it has right to review constitutional questions.
      • This applies to state and local actions as well.
  • 13. Civil Liberties
    • Liberty (fundamental rights) and Equality (equal protection) rights apply only to government.
      • Private conduct generally does not have to comply with the Constitution.
    • Constitution applies to government at all levels
      • Federal, State, Local
      • and to actions of its officers
  • 14. Levels of Scrutiny
    • The test that is applied to determine if the law is constitutional
    • Levels
      • Rational Basis
      • Middle Tier
        • intermediate, proportionality
      • Strict Scrutiny
        • compelling interest
    Note – most cases fall under Rational Basis test
  • 15. First Amendment
    • 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 Government for a redress of grievances.
    • How many rights are in here?
  • 16. Analyzing Speech Issues
    • What is protected speech
    • What is NOT protected
    • Presumptively invalid regulations of speech
      • Content-Based, Overbroad, Prior-Restraint
    • Potentially valid regulations of speech
  • 17. The Two Clauses
    • Establishment Clause
      • “Congress shall make no law respecting the establishment of religion . . .”
    • Free Exercise Clause
      • “or prohibiting the free exercise thereof
  • 18. Establishment Clause v. Freedom of Speech
    • Generally these cases involve private religious speech on government property or with government funds.
    • Generally, courts deem restrictions of these sorts as content-based and impermissible under strict scrutiny test.
  • 19. Free Exercise
    • General Rule – government may not compel or punish religious beliefs
      • people may think and believe anything that they want.
      • Freedom to believe (absolutely protected)
      • Freedom to act (not absolutely protected)
    • Exception - cannot be used to challenge a neutral law of general applicability.
  • 20. Equal Protection Analysis
    • What is the Classification?
    • What is the Appropriate Level of Scrutiny?
    • Does the Government Classification Meet the Level of Scrutiny?
      • The Court will look at the ends and means
  • 21. Justifications for Strict Scrutiny
    • long history of discrimination
    • relative political powerlessness of group
    • unfair to discriminate for characteristic that is acquired at birth and cannot be changed