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Hamilton - Fall 2003 ConLaw (2)

Hamilton - Fall 2003 ConLaw (2) - Outline for Con Law II...

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1 Outline for Con Law II THE CONSTITUTION 3 discreet values in the constitution: 1) Equal protection – underlying question is fairness a. Sometimes the government is not responsible for the unfairness, sometimes the court has to be hard hearted b. How the law could guarantee fairness, and what are the limits or inadequacies of the law 2) Freedom – what kind of freedom is possible in a system with 2 sovereigns (state and federal), plus the cities and counties govern you a. Speech primarily and somewhat about religion b. How is it freedom could be achieved in the face of government? 3) The constitution does not enumerate every right we OUGHT to have . a. Legitimacy of courts reading the constitution broadly or reading into rights that are not clearly enumerated Assignment of power: o The states also have power barb4right 10 th amendment says what doesn’t belong to the federal government belongs to the states. square4 The Bill of Rights and the 10 amendments were intended to provide for the people’s ability to fight against the government. o 9 th amendment gives power to the people. o Power is assigned to 3 branches of the federal government Why would you want to limit the government? o The rights are there to protect the minority against the majority. o If procedures are slowed down you are less likely to get bad legislation. o The underlying presumption of the whole system is that anybody that takes power is likely to abuse it. There are no absolute rights in the constitution except the right to believe anything you want. o There is no absolute right to fairness, to speak, get an abortion, etc. square4 That is why constitutional law is all about shades of gray. o Why are there no absolutes? square4 Pragmatism barb4right pragmatic, flexible constitution, so if there is something that is not pragmatically possible you won’t get a constitutional right for it o E.g. if you are a religious believer, and you believe in letting children die at a young age, can the government come in and make you quit? Yes, the government can convict you and put you in prison because the government cannot tolerate that behavior. Most of these decisions are very context dependent barb4right there is a case and controversy requirement in the constitution. One change in a fact could change a result in the next case.
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2 EQUAL PROTECTION CLAUSE Constitutional Convention o Met in secret o Articles of Confederation had failed square4 A of C created anarchy o What was being weighed was bringing the country together or abolishing slavery. square4 The question was whether a black man could be a citizen and the answer was no. State v. Post o The court said if the 1844 constitution meant to abolish slavery it would have just said it.
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Hamilton - Fall 2003 ConLaw (2) - Outline for Con Law II...

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