Constitutional Law II Outline

Constitutional Law II Outline - Constitutional Law II...

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Constitutional Law II Outline Individual Rights I. Substantive Due Process a. When can government regulate b. What is substantive Due process? i. Bill of Rights only applies to the federal government – by it’s terms ii. Get applied to the states through the 14 th due process clause “liberty interests” iii. Aspects of liberty under Due Process clause c. Procedural due Process – When government goes after individual, as opposed to a law that’s applicable to everyone. How much procedure do you get? i. Court deciding it’s never in the minor’s best interest b/c it’s a sin ii. Need notice, opportunity to respond, and hearing in front of an impartial decision maker. d. Substantive due Process – Case or situation where government passes a generally applicable Law. i. Government passes a law (state) ii. Someone challenges it for violating a right 1. Unenumerated rights a. Right to abortion b. Right to marriage c. Right to have kids 2. Ex post facto law a. Always a criminal law b. It’s retroactive and changes law in a way that is substantially detrimental to D c. Making something a crime that wasn’t a crime before d. Increasing sentence after being charged 3. 4. Where do they come from? a. Judge made rights i. Where do judges get rights from? 1. Rights come from constitution 2. Enumerated – written (free speech, religion) 3. Penumbral rights a. Wooley v. Manyard b. Griswold c. Closely Related to enumerated rights
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d. Natural law – using it a basis for invalidating laws e. History and tradition i. Recognized by England, the colonies, the states and the federal government ii. Aspect of liberty – the ability to do stuff iii. Not all liberty interests are fundamental iv. Test: 1. Is the right essential to Anglo- American jurisprudence – have the governments recognized the right over time and/or 2. Is the right implicit in the concept of ordered liberty? ordered liberty – some government restraint v. Different histories, different values vi. f. 4. ii. b. 5. How do you talk about the right? General? Specific? a. If it’s broad – more state laws are invalidated b. If it’s narrow – the judge more likely to buy it, will invalidate fewer law 6. iii. How to do substantive Due Process: 1. State passes law 2. Person says it violates their rights 3. Describe the activity that’s effected 4. Have to place it in the constitution
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a. Place it in the liberty due process clause of the 14th 5. Talk about whether the right is fundamental or not: a. Look to constitution – is it a corollary right? b. Look to history and tradition 6. Set the level of scrutiny a. set by the importance of the right b. If it’s fundamental – strict c. Low level liberty interest - rational 7. Strict scrutiny a. P has burden to prove prima facie case i. Fundamental right ii. Been abridged by state law b. Then burden shifts to government i. Show compelling interest and ii. Narrowly tailored means c. 8. Low Level Liberty interest – Rational Basis
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This note was uploaded on 04/01/2008 for the course CON LAW Con Law II taught by Professor Prygoski during the Fall '06 term at Cooley Law.

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Constitutional Law II Outline - Constitutional Law II...

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