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Constitutional Law.outline.docx - Constitutional Law Must...

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Constitutional LawMust understand the majority and the dissents and understand all ofthe plausible ways in which constitution may be interpreted.Need to know specific reasons for why the law is the way it is(majority) as well as specific ways to rebut that presumption (dissent)Always ask:1.Does the particular governmental agency have the power todo ‘x’?a.Were a government of limited powers2.Even if that particular government agency has the power isthere something else in the constitution that’s a limit on thatpower?If you want to argue that a case is bad precedent and isn’t applicable tothe current case, then you distinguish the factsIf you want to follow the precedent because you think its good, thenyou stress the broad overall policy/themes/ language that the case issupportingArt 1- Legislative Branch – 2 houses which check each other becausethey must agree for Bills to move forwardArt 2- Executive Branch- “shall be vested” its an absolute rightArt 3- Judicial Branch-From ’37- ’95 ct never struck down law by Congress broadly definingthe Commerce Clause so that congress could regulate things seeminglyunrelated to interstate commerce.Stare decisis less important in con law-Supp is the only one who could over turn its own decisions-Can amend const but its very difficult “delicate balance”because we don’t want it to change with the winds.When analyzing Constitutionality of statue:1.does congress have power to pass such a law?a.Look at power granting clauses sec 8, 9 for whatcongress can dob.Look at 10 for what states can’t do2.When it’s a state law presume that they can pass the statuebut must check to see if it impedes on federal power.Purpose of Constitution1. Federalism1
a.Balance power between state and federal governmentsb.Vertical relationshipc.Federal government has exclusive jurisdiction over certainareasd.States given broader authority to pass lawsi.Police power- right to pass laws not only dealing withthe police power but anything deemed for publicwelfare2.Separation of Powersa.Prevents anything from happening without the agreementof at least 2 branches of governmentb.Laws to pass need both legislature/ executivec.Laws to be enforced need executive/judiciald.Makes it harder for work to get done but we wanted stateautonomy and were fearful of a strong central government3.Individual Rightsa.Fearful of other governments which oppress peopleb.Liberty means that the government can’t tell you to dosomething like have kidsc.Equality means that the legislature must govern in an evenhanded mannerd.Bill of Rights places in writing certain rights which cannotbe taken away are guaranteed to every individual.Federal Judicial Power-not being able to easily change constitution bring stabilityensuring the 3 functions-relates to judicial review because cts have authority to statewhat the law is-counter majority concern- judges who determine constitution’smeaning are appointed for life therefore outside thedemocratic process because its not the people they aregoverning who are electing themocounter: it afford them the ability to make decisionsimpartially/fairly and not have to worry about therepercussions.

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Term
Fall
Professor
Munger
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