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Herz - Fall 2003 Con Law II

Herz - Fall 2003 Con Law II - OVERVIEW Hamiltonian reason...

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OVERVIEW Hamiltonian reason for not having a Bill of Rights: We don’t want to imply that the Federal government has infinite powers, minus those who are restricted. (That’d be dangerous.) Further, it’s superfluous – the Constitution enumerates powers, and anything outside of that is already barred. But part of the Constitutional debates (in framing it, that is) said that a Bill of Rights would be forthcoming. Second Amendment Individual reading vs. Collective reading: 1) Individual – a person, individually, has the right to bear arms, and the government can’t interfere with it. 2) Collective – gives the right to individual states the right to protect themselves as they see fit. Questions to ask about Congress regulating things they usually cannot 1) How compelling is Congress’s interest? 2) Is there a way to get the same/similar job done w/less of an infringement. In general: Tailoring a law with a really good reason, with no other way to do it, is the only way something like an abridgement of free speech (et al) will fly. Unincorporated Rights (Not incorp to states via 14 th ): 1) 7 th Amendment 2) Grand Jury right under 5 th Amendment 3) 3 rd Amendment 4) 2 nd Amendment Religion Clause Lemon Test for establishment of religion: 1) Purpose of establishing religion or; 2) Effect of establishing religion or; 3) Excessive entanglement of government and religion. EQUAL PROTECTION 13, 14, 15th Amendments are post Civil War reconstruction amendments. Note 14th Amendment, section 2; original intent/idea was to deal with equal protection to blacks, but has been extended txt reaches farther than initial intent. EPC is about classification…“I would be treated better if I was a member of that class instead of this one.” Impracticable to treat everyone equally (ex: limit driving to those over 16…general policy that overall those under 16 aren’t mature enough to drive yet; legitimate purpose of safety; does this rule further the goal? Yes. Is overinclusive and underinclusive , doesn’t fit every member—a 14 year old might be mature enough, a 19 year old might
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not. Could we test individually so as to not classify? Yes, but would be too costly. Rational basis test basically says this method has a rational basis in a policy goal, don’t need individualized determination). Rational Basis Test The law must have a rational basis that is related to an important governmental goal . It just needs to make sense. Beazer We’ll apply the rational basis test to non suspect classes, even if the different groups (methadone users and non-methadone users) are similarly situated. We still care that the difference are relevant, with regard to the policy goals. However, great deference is given to the legislature. The dissent doesn’t buy into the deference: There are a lot of other categories of crummy workers but they’re not also excluded. An exclusionary scheme that is not directed against any individual or category of persons,
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Herz - Fall 2003 Con Law II - OVERVIEW Hamiltonian reason...

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