Hamilton Sp06 ConLawII - Class Notes

Hamilton Sp06 ConLawII - Class Notes - ConLawII - Class...

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www.swapnotes.com Page 1 of 50 Con Law II - Professor Hamilton Spring 2006 Overview : o The Constitutional Convention met b/c the Articles of Confederation failed. ± Articles failed b/c there was too much optimism: pp thought G-d chose America to create a successful representative republican democracy. Therefore, all states were co-equal w/ no mechanism of control over them; so, the states operated independently. State legislatures had the power w/i the state, not the governor, and there was no check so legislature became a source of corruption instead of being the chosen fabulous democracy. o Thought pp would limit the legislature by electing only good pp, but that didn’t happen. ± 2 Principles emerged from Articles of Confederation : 1. Cant have a gov w/o a check—no matter if monarch or democracy 2. Impossible to achieve goals that have in common unless they have a national gov-wont work as a collection of states. ± At the convention, reps no longer had the optimistic view: All the reps agreed that you cant trust the pp (not an adequate check on gov) and cant trust individual pp (person in charge needs a check) to be the check on gov. The beauty of this is that were able to draft a C that works: no one in this country has an unfettered power! A Right doesn’t mean that you can do whatever you want, it only means that you can question what the gov is keeping you from doing. o Only absolute right: right to believe whatever you want! ± But, the gov can regulate your conduct even if it is motivated by religious beliefs! o ConLaw II is about achieving ordered liberty. Conlaw I was about the powers given to different branches. The tension b/t liberty and order is what makes our C work. Q: when can the gov regulate, thereby oppressing s/o’s right? And then, what is the relationship b/t the judiciary and the legislature? ( this depends on the level of scrutiny used.) o 3 Levels of Scrutiny -primary tool court uses to determine how deferential it will be . 1. Minimal-Rationality Review -if law looks neutral, court wont be suspicious and will give deference to the legislature Q asked: Is the law rational in the broadest sense? Have this so that the branches of gov do what they are optimally best to do and legislature is better at determining policy and court interprets. 2. Strict Scrutiny -Gov has done s/t that triggers court to say no deference and will see what legislature is really trying to do. Q asked : if want to defend regulation, gov must tell what its compelling interest is and defend that the compelling interest is closely related to the regulation enacted ? ex: Discrimination-where gov engages in content based discrim. 3.
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Hamilton Sp06 ConLawII - Class Notes - ConLawII - Class...

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