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Constitutional Law

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David Randall

on 19 September 2018

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Transcript of Constitutional Law

Suppose that in order to obtain a freshwater fishing license in Massachusetts a state resident must pay a fee of $27.50, but to obtain the same license a non-resident must pay a fee of $37.50. Is this fair? Is it legal?
Constitutional Law
Constitutional law concerns compromises of power
Who possesses it?
What are the limits on its exercise?
When may it be exercised?
Constitutional law allocates power
Among the federal government, the states, and the people
Separation of powers
Federalism in Action: the Commerce Clause
Wickard vs Filburn
Protected Rights
Mechanisms of compromise
Protects individuals from governmental power
These are part of a state's "police powers"—the right of government to enact laws to benefit public order, health, safety, welfare, etc.
The Scope of Federal Power
U.S. Constitution Article I, § 8 defines powers of Congress
The "enumerated powers" clause
How does Article I § 8 limit federal legislative power?
U.S. Constitution Article VI makes the Constitution, laws and treaties of the U.S. the "supreme law of the land"
The "Supremacy Clause"
"The Congress shall have the power to . . . regulate commerce with foreign nations, and among the several states"
What is "interstate commerce?"
Congress may regulate any activity that has a "substantial effect" on interstate commerce
The Affordable Care Act—a/k/a "Obamacare"—required that all Americans, with few exceptions, purchase defined minimum health care insurance, or pay a penalty
The "individual mandate"
Lawsuits challenged whether the individual mandate was within Congress's Commerce Clause power
How did the U.S. Supreme Court rule?
Executive Power—Defined by Article II of the Constitution
Judicial Power—Defined by Article III of the Constitution
"Judicial review" is the power of federal courts to declare statutes or governmental actions unconstitutional
The Bill of Rights (U.S. Constitution Amendments #1-#10) protects individual liberties against governmental acts

It does NOT protect individual liberties against acts of private persons or entities

Courts have applied the Bill of Rights' protections to all levels of government
First Amendment
What does the 1st Amendment protect?
Right to free speech
Protection from governmental establishment of official religion
Right to free exercise of religious beliefs
Right to a free press
Right to peaceful assembly
Right to petition the government
What is speech?
Texas v. Johnson
(the flag-burning case)
Government may impose reasonable regulation on the time, place, and manner of speech.

Such regulations must:
Be content neutral
Serve a significant government interest and be narrowly tailored to that interest
Leave open ample alternative channels of communication
"Don't talk about politics over dinner!"
"Don't use a megaphone in a residential neighborhood after 10 pm!"
Not content neutral
Content neutral
Not narrowly tailored

Rolling megaphone truck: not OK
Leaflets, brochures, lawn signs: OK
Why should the 1st Amendment protect commercial speech at all?
Commercial speech does not enjoy the same degree of 1st Amendment protection as other kinds of speech
Fifth Amendment
Due Process Clause: "No person shall be deprived of life, liberty, or property without due process of law"
in other words . . . government cannot take one's life, liberty, or property without going through certain procedures to ensure a fair result
How much process is due depends on the nature of the interest being threatened
Takings Clause: government can use its eminent domain power to take private property for public use, but it must pay fair market value for the property
Determining "fair market value" is often controversial, and contested in court
Fourteenth Amendment
The Equal Protection Clause: “No state shall … deny to any person within its jurisdiction the equal protection of the laws”
Analyzing government classifications
Strict Scrutiny
Applies to classifications involving—
Ethnicity, and
Fundamental Rights
The classification is valid only if it is
Necessary to promote a compelling government interest, and
Narrowly tailored to fit that interest
Strict scrutiny analysis presumes the classification is invalid
This means the state defending the classification has the burden of proving that it is valid
Applies to classifications involving gender
The classification is valid and will be upheld only if it substantially relates to important government objectives
Intermediate Scrutiny
Minimal Scrutiny
Applies to classifications involving economic and social relations
i.e., any classification not involving race, ethnicity, fundamental rights, or gender
Minimal scrutiny analysis presumes the classification is valid
The classification is valid and will be upheld if it is rationally related to a legitimate governmental interest
Who has the burden proving that the classification is invalid?
National Federation of Independent Businesses v. Sebelius
Fall 2017
A state statute that violates the U.S. Constitution—
a. can be enforced by that state's government only
b. can be enforced by the federal government only
c. can be enforced by the United States Supreme Court only
d. should be ruled invalid under the Constitution’s Supremacy Clause if someone files a lawsuit challenging its validity

Spring 17:
Spring 2018
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