Constitutional Structure

Question 1

Purposes of the Constitution

Answer 1

o Establish federal government/divide and separate its powers
o Determine relationship between federal government and states
o Limit government power and protect individual liberties

Question 2

Why did the framers make the Constitution hard to change?

Answer 2

o They were confident they were right

o Fearful of a majority making hasty, ill-advised change

Question 3

3 Principles from Marbury v. Madison holding

Answer 3

1. The court can review non-discretionary forms of executive conduct
2. The court can review legislative enactments to determine their
   constitutionality
3. The courts own power is limited by what the constitution prescribes and
   cannot be increased for congress

Question 4

Theories of Constitutional Interpretation

Answer 4

1. Originalism
2. Textualism
3. Process Theory
4. Living Constitutionalism (pragmatism)

Question 5

Originalism Pros & Cons

Answer 5

PROS
1. Gives more credence to the democratic process (amendment process)

CONS

1. We can’t know for SURE what the drafters intended
2. Some things from the original can’t be applied today (“he”)
3. Our current level of technology was totally unimaginable

Question 6

Textualism Pros & Cons

Answer 6

PROS
1. does the most to keep out the personal preference of
judges
2. The text is the best evidence of what was decided

CONS
1. Allows little to no recognition of un-enumerated rights
2. Text doesn’t answer all the questions!
3. Original process was seriously undemocratic (leaves
out the minority view)
4. Doesn’t reflect contemporary needs and interests

Question 7

Process Theory

Answer 7

1. Judges should interpret the Constitution strongly
   keeping in mind the political and judicial processes it was designed and built to protect
2. Laws impacting the rights of minorities should be more
   scrutinized because minorities do not have as much access to
   relief through democratic processes

Question 8

Living Constitutionalism/Pragmatism

Answer 8

1. Judges should think about consequences of adopting one rule as opposed to another and be sensitive to social change
2. Drafters purposefully left words ambiguous so that they may interpret as was necessary
3. Arguably gives too much power to judges

Question 9

D.C. v. Heller: Issue

Answer 9

Is the 2nd Amendment (Right to bare arms)

intended as individual right or just for militia?

Question 10

D.C. v. Heller: Holding and Reasoning

Answer 10

Holding: DC’s ban on handgun possession in the home violates the 2nd Amendment. NOT uniform policy; decided case-by-case.

Reasoning:

1. 2nd amendment divided into operative clause and prefatory clause. “right of the people” is operative clause and determined to be individual right.
2. Historical context

Question 11

Methods of Constitutional Interpretation

Answer 11

1. Textual
2. Structural
3. Precedential
4. Institutional competence/process arguments (legislative deference/judicial interpretation)
5. Originalist/historical
6. Pragmatic/consequentialist

Question 12

Justiciability Doctrines

Answer 12

1. Prohibition on advisory opinions
2. Must have standing
3. Must be ripe
4. Cannot be moot
5. Prohibition on political questions

Question 13

Advisory Opinion Criteria

Answer 13

1. Must be an actual dispute between adverse litigants
2. Must be a substantial likelihood that the federal court
   decision will bring about some sort of change

Question 14

Ripeness Criteria

Answer 14

1. Degree and likelihood of hardship that a plaintiff will suffer without judicial enforcement
2. Fitness of the case for judicial inquiry (factual record?)

Question 15

Mootness definition

Answer 15

A plaintiff must present a live controversy at ALL stages of federal court litigation

Question 16

Mootness exceptions

Answer 16

1. Wrongs capable of repetition
2. Voluntary cessation by defendant
3. Class action suits
4. Collateral injuries remain even when primary injury has ended

Question 17

Political Question definition

Answer 17

Supreme court decides not to adjudicate the dispute, despite all other justiciability requirements are satisfied, because it requires a ruling on a political question (e.g. foreign policy)

Question 18

Standing definition

Answer 18

Determination if a specific person is the proper party to bring a matter to the court

Question 19

Standing criteria

Answer 19

1. Injury
   
   • P must allege that he has suffered or imminently will suffer a DISTINCT, PALPABLE, and CONCRETE injury
2. Causation
   
   • P must allege that the injury is fairly traceable to the defendants conduct
3. Redressability
   
   • P must allege that a favorable federal court decision is likely to redress the injury

Question 20

Allen v. Wright

Answer 20

1. Court asserts that injury (impairment to attend racially integrated school) is not sufficiently traceable to the IRS; causation too speculative
2. Stigmatic injury is too abstract

Question 21

Massachusetts v. E.P.A

Answer 21

1. Injury satisfied
   - Rising global temperatures and loss of coastal land because of EPA’s regulation failure.
2. Causation satisfied
   - Court says regulation must be incremental and even failure to take small steps in regulating CO2 is a sufficient causal connection to global warming injuries.
3. Redressability satisfied
   - Court says taking small steps in regulating CO2 will delay the effects of global warming and is sufficient to reduce P’s injuries.

Question 22

City of Lyons v. L.A.

Answer 22

Plaintiff can’t show the injunction against chokehold would satisfy redressability (he already suffered injury from chokehold)

Question 23

Lufjan v. Defenders of Wildlife

Answer 23

Just because a statute gives you a procedural right to sue does not mean you necessarily have standing.

Question 24

Mcculloch v. Maryland principles

Answer 24

1. Federal government is supreme over the states; state have no authority to burden or interfere with federal operation with taxes and other restraints
2. Congress has enumerated powers under article I; through the necessary and proper clause they are given authority the means and methods to carry out the enumerated powers

Question 25

3 categories of “commerce” protected by the Commerce Clause

Answer 25

1. Channels of interstate commerce (waterways, railroads, internet etc.)
2. Instrumentalities of interstate commerce (people, things, that cross state lines)
3. Activities substantially affecting interstate commerce

Question 26

Heart of Atlanta Motel v. United State holding and principle

Answer 26

Holding
- Court says there is a mobile population and not allowing
African Americans to stay in the motel creates a burden on
them and discourages them from traveling.

Principle
- Legislature can pass laws with morals as primary motivation as long as commerce is still being regulated

Question 27

Katzenbach,Perez, & Wicker principle

Answer 27

Look at the CLASS of the activity that

congress is regulating, then look at THAT effect on commerce (e.g. restaurant food, loan sharking, wheat)

Question 28

Hodel v. Indiana principle

Answer 28

A court may invalidate legislation enacted under the Commerce clause only if there is no rational basis for a Congressional finding that the regulated activity affects interstate commerce

Question 29

3 Key principals from the Pre-Lopez Era (1937-1995)

Answer 29

1. Court looks at regulated activity, not Congress’s motive for
   passing legislation
2. Court looks at aggregated effects of regulated activity
3. Deference to legislature and rational basis review

Question 30

United States v. Lopez

Answer 30

• Court decides something must SUBSTANTIALLY affect interstate commerce in order to be regulated or else anything could be considered commerce; Gun Free Zones Act of 1990 does not meet this standard
• Activity must be ECONOMIC in order for aggregate principle to apply

Question 31

U.S. v. Morrison

Answer 31

• Violence Against Women Act not protected by Commerce Clause
• Court does NOT apply rational basis review

Question 32

Gonzalez v. Raich

Answer 32

• Majority uses aggregate principle and says
  cultivation of a “fungible” commodity (marijuana) at
  home has a substantial effect on economic activity and
  frustrates federal objective to regulate marijuana.
• RATIONAL BASIS REVIEW IS BACK
• The court will not apply exceptions to individuals in a particular class that Congress has the Constitutional authority to regulate.