Constiutionalism
What article and section vests power in the executive?
Article II Section I
What does the majority in Youngstown say regarding the President's power?
Black:
The president's power is not self-executing. He must act through Congressional approval or the Constitution.
McCulloch v. Maryland gives what element for the Necessary & Proper Clause?
Necessary = Convenient and useful to the power
Which section of the 14th Amendment creates the equal protection clause?
Section 2
Justice Douglas in Lee Optical says what about Substantive Due Process?
"Gone are the days" when the Court will apply more than a rational basis standard for commercial legislation.
This represented the framework of government responsibilities and limits on power
The ancient constitution
The five modalities of interpretation are.
1. Text
2. Precedent
3. Structure/Logic
4. Purpose
5. Policy/Pragmatism
Which case holds that the 10th is but a truism, and what does it mean?
1. Darby (1941)
2. The 10th Amendment merely reaffirms states' rights but does not restrict the federal government's power.
What is the Pike test?
The pike test is a balancing test for state legislation that affects interstate commerce. It applies when the legislation does not discriminate against other states and balances the state's interest against the burden on commerce.
What precedent does Brown v. Board of Education (1954) overrule?
Trick question: None, it effectively overturns separate but equal.
What test comes from Glucksberg (1997)?
Test for Fundamental Rights:
1. Narrowly described
2. History of protection (fundamental to our concept of ordered liberty)
Lincoln's Gettysburg address exemplified what Constitutional doctrine?
Departmentalism
Article V does what?
Gives the process for amending the Constitution.
1. 2/3 of both houses propose an amendment; and
2. ¾ of the states must call a convention for amendment or approve a proposed amendment by the houses of congress
What is the test to determine if there is a valid delegation of power to an agency from Gundy (2019)?
If there is an IP
Kagan:
Look to the history and purpose of the legislation.
When do you apply the Dormant Commerce Clause Doctrine?
Only when a state has exercised its concurrent power to regulate interstate commerce.
What was missing from the Warren Majority's holding in Brown v. Board of Education (1954)?
A clear neutral principle
How does Roe (1973) alter Griswold's holding?
Stewart Concurren: Clarifies that Griswold's right to privacy is actually an aspect of liberty under the 14th Amendment.
What does Federalist No. 78 say, and who wrote it?
Hamilton:
Advocates for judicial review. "The power of the people is superior."
The 5th Amendment does what?
1. Eminent Domain
2. Due process (federal only)
What do Article II sections 7 and 8 do?
Requires bicameralism and presentment.
What Commerce Clause doctrine does Wickard (1942) establish?
The aggregation principle: purely local activites can be regulated if, in the aggregate, they affect interstate commerce.
Harlan's dissent in Plessy (1896).
What does the Bell (1927) Court say about due process?
Holmes: The only process due is the process said to be given by statute. There must only be a rational basis to pass this test.
When was the Magna Carta written?
1215
Article VI of the Constitution does what?
Supremacy clause and federal officers undertake an oath to uphold the Constitution.
Souter's concurrence in Edmond adds what to the majority test?
What can Congress regulate according to Lopez?
2. Instrumentalities
3. Things that substantially affect interstate commerce
Bakke (1978) says what about compelling state interest in education?
Remedying societal discrimination is too ambiguous to be a compelling interest, but trying to benefit from racial diversity is not.
How does Douglas decide that privacy is a protected right in Griswold (1965)?
Claims that through the "penumbras and emanations" of the 1st, 3rd, 4th, and 9th Amendments that there is a summative right to privacy.
Hobbes v. Locke
1. Hobbes: big government to defeat our violent nature.
2. Locke: Limited government
When can Congress act without bicameralism?
1. House impeachment
2. Senate impeachment trials
3. Senate approval of treaties
4. Senate approval of appointments
According to Chada (1983) when does Congress act legislatively?
When it alters the rights, relations, or duties of a person.
The Gonzales Court emphasizes what about the nature of Congress's regulation of locally grown marijuana?
It is part of a highly reticulated regulatory scheme to regulate drugs, and that by not allowing them to regulate the intrastate activities, their legitimate goals are undercut.
Loving v. Virginia (1967) gives what language from Justice Warren regarding when discrimination is impermissible?
When the discrimination is invidious. To determine what is invidious, it must pass "the strictest scrutiny"
Must be shown to be necessary to accomplish some permissible state objective independent of racial discrimination
Meyer (1923) and Pierce (1925) represent what for substantive due process.
A restrengthening of substantive due process in allowing parents the ability to make education decisions for their children.
Madison's Thoughts on Government what about the American government as compared to other governments?
The American government is not based on fear. Rather, the powers that are given to the government are given freely and what is not given remains with he people.
Madison for Federalist 10:
Claims that the issue is factionalism. To prevent this he advocates for a vertical division of power between the states and the federal government.
Which Justice concurs in Youngstown (1952) and gives a test for the President's power? What is the test?
Jackson:
1. In line with Congress
2. When Congress is silent
3. Against Congress
The Lopez (1995) majority expresses what concern about Congress's power?
The concern is that by allowing a strict rational basis for non-economic legislation, Congress will have an effective police power.
What is the tension discussed by the courts in equality?
Is it equality of opportunity or outcome, and how much should courts restrict the rights of others to create equality.
What does Goldberg's concurrence and Stewart's dissent say in Griswold (1965)?
Goldberg: The right to privacy is actually derived from the 9th Amendment. Uses notions of natural justice to reach this conclusion.
Stewart: The proper test should be a rational basis, and here there is one; thus, the law should not be struck down.
The Reconstruction Amendments amount to what and why?
A second Constitution because they so alter the relationship between state and federal governments.
What is Contained in the IV Article of the Constitution?
1. Full Faith
2. Privileges and Immunities
3. Adding States
4. Protection of each state from the U.S.
Cooper v. Aaron (1958) says that Marbury v. Madison stands for what proposition?
Judicial supremecy
Scalia's concurrence in Gonzales (2005) adds what to the majority's holding?
A clarification as to the scope of Congress's power to justify its actions by way of the Commerce Clause. Things that are part of commerce are not themselves commerce and cannot be regulated by way of the CC, instead, Congress must use the N&P clause.
What is the test from SSFA (2023)?
1. Strict Scrutiny
2. Definite end date
3. Never a negative or stereotype
Justice Harlan in Griswold (1965) makes what point about the 14th Amendment?
"It stands on its own bottom." DPC protects liberty but only those liberties that are implicit in the concept of ordered liberty without which there would be no liberty
What did Hobbes and Locke say regarding equality?
Hobbes: All people are equal in their ability to kill one another. The government does not have the authority to equalize things; rather, the government’s job is to guarantee freedom
Locke: All people except lunatics, idiots, and children are equal in their ability to reason
Calder v. Bull (1798) shows a conflict between which viewpoint and what is its holding?
Chase: NJ is okay to interpret the Constitution
Iredell: Only the text
Ex-post facto only applies to criminal.
Chada (1983) shows a tension between what two Constitutional perspectives?
Formalism (Black) - only 4 exceptions
Functionalism (White) - second bite
Gibbons v. Ogden (1824) is the precursor for what?
Dormant CC
Dicta #4
Jefferson's private correspondence regarding slavery indicates what about the Declaration of Independence?
The framers may have viewed the concept of equality as potentially including all people. Thus, when considering the DoI as a backdrop for Constitutional interpretation, this plays into the concept of equality.
In Lochner (1905), what are the three opinions we discussed and their core holdings?
1. Peckham for the majority: There must be a reasonable basis to restrict a right; here, there was none.
2. Harlan Dissent: Where there is confusion, defer to the state legislature. "Clearly and palpably."
3. Holm's Dissent: Puke test
What is the Adams Compromise?
The Constitution only created the Supreme Court because the farmers could not decide which courts to make. Instead, they “punted” the issue to Congress to decide
What does the rejection of the strict terms for amendment of the Articles of Confederation mean for our Constitution?
Sometimes departure from the words of the text is justified.
What are the three cases and tests for when appointments need to be made by the president?
Buckley (1976) - Superior = significant authority
Lucia (2018) - significant authority = continuing and permanent
Edmond (1997) - Inferior = supervised by presidential appointee
Printz (1997) says what about Proper in CC cases?
Legislation that infringes on residual state sovereignty is not proper.
Scalia:
Cannot force states to act, but the courts are slightly different.
SFFA collapses the issue of the 14th Amendment and the Civil Rights Act of 1964 into one analysis. Why?
The civil rights act of 1964 and the 14th Amendment have been construed to mean the same thing with respect with EPC.
What is the test from Casey (1992) and how does it alter Roe (1973)?
Undue burden test
rejects the trimester framework
Formalizes Stewarts concurrence from Roe - privacy is an aspect of liberty not a freestanding right
This decision was described in the sources as the Supreme Court's "worst decision ever made." What year and who wrote it?
Dredd Scott (1857) by Taney