Constitutional Law Ii Final Outline - Constitutional Law II

Exam

• Treat this as a lawyer representing a client – memo: what are the issues? What are the chances of success?

  • Here are the 4 good points that would help our case

  • Here are the 3 bad points

  • And here are how we can refute the points

• Three Different Types of Questions (look at attack sheet)

  • Fact pattern and gives a role – don’t make up facts here

    • What issues do you spot here?

    • Given the issues – what are the concerns brought by this?

  • Statute and then asks

    • you can kind of make up facts (like what could possible be the legislative purpose here)

    • any Cons. Law II issues you spot here?

    • Given issues – what are the concerns?

  • Essay Question

    • Like: should we abolish substantive due process?

    • By reference to the cases & specific judges (what are their views)

    • And then give your opinion

    • Can cite to overruled cases to help you make arguments for one side or the other

General

• Two ways to challenge a law as unconstitutional:

  • Unconstitutional on its face; unconstitutional as applied.

The United States Constitution

Article 1 – Creates the two parts of Congress. They are responsible for making laws.

Section 2

• Defines the House of Representatives, known as the lower house of Congress.

• Must be 25 years old, will serve for two years each. Must be a citizen 7 years.

• Each state gets Representatives based on state population.

• Has a leader called the Speaker of the House.

Section 3

• Defines the Senate, knows as the upper house of the Congress.

• Must be 30 years old, will serve for six years each. Must be a citizen 9 years.

• Each state gets two Senators.

• Vice-President breaks tie votes.

Section 4

• Says that each state may establish its own methods for electing members of the Congress.

• Requires, that Congress must meet at least once per year.

Section 5

• Says that Congress must have a minimum number of members present in order to meet.

• Fines for members who do not show up. It says that members may be expelled.

• Each house must keep a journal to record proceedings and votes.

• Neither house can adjourn without the permission of the other.

Section 6

• Establishes that members of Congress will be paid.

• They cannot be detained while traveling to and from Congress.

• That they cannot hold any other office in the government while in the Congress.

Section 7

• Say how bills become law.

• All bills must pass both houses of Congress in the exact same form.

• Bills that pass both houses are sent to the President.

• He can either sign the bill, in which case it becomes law, or he can veto it.

• If he vetoes a bill, it is sent back to Congress, and if both houses pass it by a two-thirds majority, the bill becomes law over the President's veto. This is known as overriding a veto.

Section 8

• Gives Congress the power to establish and maintain an army and navy.

• To establish post offices, to create courts, to regulate commerce between the states, to declare war, and to raise money.

Section 9

• Can not suspend right to remain silent laws.

• Can not pass laws that make things illegal starting yesterday or last week, etc.

• No law can give preference to one state over another

• Can not spend money without permission.

Section 10

• States can’t make their own money, or declare war, or tax goods from other states.

Article 2 – Creates the job of President, called the Executive. Responsible for enforcing the laws.

Section 1

• Establishes the office of the President and the Vice-President.

• Both serve for four years.

• Presidents are elected by the Electoral.

• Must be 35 years old. Must be born in the USA.

• Their pay cannot change, up or down, as long as he in is office.

Section 2

• President leads the armed forces.

• He has a Cabinet to aid him, and can pardon criminals.

• He makes treaties with other nations (2/3 of the Senate have to approve of the treaty).

• Picks many of the judges and other members of the government.

Section 3

• President must give a yearly speech to the nation.

• Give suggestions to Congress.

• Meet with Ambassadors and other heads of state from other nations.

• Ensure the laws of the United States are carried out.

Section 4

• Explains how to kick the president from office, called impeachment.

Article 3 – Establishes Judges, called the Judiciary. They decide if a law is allowable, or if it goes against the Constitution.

Section 1

• Establishes the Supreme Court, the highest court in the United States.

• Judge serve for life, or until they want to retire.

Section 2

• Says what cases the Supreme Court must decide.

• It also guarantees trial by jury in criminal court.

Section 3

• Defines, without any question, what the crime of treason is.

Article 4 – States Rights.

Section 1

• All states will honor the laws of all other states.

Section 2

• Citizens of one state are treated equally and fairly like all citizens of another.

• It also says that if a person accused of a crime in one state flees to another will be returned to the state that person fled from.

Section 3

• How new states come into the Nation.

• Control of federal lands.

Section 4

• Ensures a “Power by the People” government.

• Guarantees that the federal government will protect the states against.

Article 5 – How to change the Constitution.

• 2/3 of the Representatives must vote on the change.

• 2/3 of the Senators must vote on the change.

• 3/4 of the States must vote for the change (34 or 50)

Article 6 – Concerns the United States.

• Guarantees that the Constitution and all laws and treaties of the United States to be the supreme law of the country.

• Requires all officers of the United States and of the states to swear an oath of allegiance to the United States and the Constitution when taking office.

Article 7 – Explained how the Constitution was agreed to.

• Of the original 13 states in the United States, nine had to accept the Constitution before it would officially go into effect.

Bill of Rights

Proposed in 1789 and enacted on December 15, 1791

1st Amendment

Protects the people's right to practice religion, to speak freely, to assemble (meet), to address the government and of the press to publish.

2nd Amendment

Protects the right to own guns.

3rd Amendment

Guarantees that the army cannot force homeowners to give them room and board.

4th Amendment

Protects the people from the government improperly taking property, papers, or people, without a valid warrant based on probable cause (good reason).

5th Amendment

Protects people from being held for committing a crime unless they are properly indicted, that they may not be tried twice for the same crime, and that you need not be forced to testify against yourself. It also contains due process guarantees.

6th Amendment

Guarantees a speedy trial, an impartial jury, and that the accused can confront witnesses against them, and that the accused must be allowed to have a lawyer.

7th Amendment

Guarantees a jury trial in federal civil court cases. This type of case is normally no longer heard in federal court.

8th Amendment

Guarantees that punishments will be fair, and not cruel, and that extraordinarily large fines will not be set.

9th Amendment

Simply a statement that other rights aside from those listed may exist, and just because they are not listed doesn't mean they can be violated.

10th Amendment

Says that any power not granted to the federal government belongs to the states.

Amendments passed once the Constitution was adopted.

11th Amendment - Enacted on February 7, 1795

Says how someone from one state can sue another state.

12th Amendment - Enacted on June 15, 1804

Redefines how the President and Vice-President are chosen by the Electoral College.

13th Amendment - Enacted on December 6, 1865

Abolished slavery in the entire United States.

14th Amendment - Enacted on July 9, 1868

People had rights on the federal level and on the state level, too. Dealt with civil war items.

15th Amendment - Enacted on February 3, 1870

Ensured that a person’s race could not be used as criteria for voting.

16th Amendment - Enacted on February 3, 1913

Authorizes the United States to collect income taxes.

17th Amendment - Enacted on April 8, 1913

Shifted the choosing of Senators from the state legislatures to the people of the states.

18th Amendment - Enacted on January 16, 1919

Abolished the sale or manufacture of alcohol in the United States.

19th Amendment - Enacted on August 18, 1920

Ensures that sex could not be used as criteria for voting.

20th Amendment - Enacted on January 23, 1933

Set new start dates for the terms of the Congress and the President.

21st Amendment - Enacted on December 5, 1933

Repealed the 18th Amendment.

22nd Amendment - Enacted on February 27, 1951

Set a limit on the number of times a President could be elected - two four-year terms.

23rd Amendment - Enacted on March 29, 1961

Grants the Washington D.C. the right to three electors in Presidential elections.

24th Amendment - Enacted on January 23, 1964

Ensured that no tax could be charged to vote for any federal office.

25th Amendment - Enacted on February 10, 1967

Establishes rules for a President who becomes unable to perform his duties while in office.

26th Amendment - Enacted on July 1, 1971

Ensures that any person 18 or over may vote.

27th Amendment - Enacted on May 7, 1992

Any law that increased the pay of legislators may not take effect until after an election.

When a Court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review:

1) MERE RATIONALITY

• Rational Basis Test – Law will be upheld if it is rationally related to a legitimate govt. purpose

• When govt. is...