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Big Fat Con Law Outline - Con Law Outline I Small Sidenote...

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Con Law Outline I. Small Sidenote about standards of review: A. Mere rationality 1. Two requirements: a) Legitimate governmental objective- health, safety, general welfare b) Minimally rational relation between means chosen and objective (1) Extremely easy to satisfy (2) Must show government acted arbitrarily and irrationally c) Main test used in the Dormant Commerce Clause B. Strict Scruitny- tough titty! 1. Two requirements: a) Compelling objective- b) Necessary means- “fit” between the means and end is tight dawg (1) There can be no less restrictive means available to achieve the government’s objective as well (2) Suspect classifications- race, national origin, sometimes alienage (3) Freedoms of expression, religion, free exercise (4) Substantive due process/fundamental rights (a) If no fundamental right is affected, ask whether the gov act violates substantive due process. (b) Rationally related means are not violated by substantive due process clause. C. Middle-level Review 1. Government objective must be important or compelling and means implemented must be substantially related THREE STANDARDS OF REVIEW IN CONSTITUTIONAL LAW A. Rational Basis Review : Least strict standard of review 1. Def: The court applies a “mere rationality” standard. If rational, the court will uphold the government action. * Often used in Commerce Clause and Dormant Commerce Clause cases. 2. Test under Rational Basis Review: Both tests must be met for the statute to be OK. 1. Legitimate Government Objective : 2. Rational relation between the means chosen by the government to address the problem and the government objective in passing the statute. Std is met as long as the government action is reasonable. 3. Under Rational Basis Review, the Court usually upholds the Govt. action as long as there is some sign that the government was acting reasonably. Any arbitrary and irrational action by the Govt. will not be upheld by the Court. 4. Burden of Persuasion : The individual attacking the govt. action has the burden of persuading the court that the govt. action is unconstitutional.
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B. Undue Burden Std. of Review: The middle-level standard of review. * Often used in constitutionally protected liberties, such as Abortion. 1. Test under the Undue Burden Std. of Review: To be constitutional: 1. The government must have an important objective or interest in the matter? 2. The govt. action can’t place an Undue Burden or Substantial Obstacle in the path of the person exercising his or her right. 2. Burden of Persuasion : In the undue burden std, the burden of persuasion will often be on the Government to prove it is not placing an undue burden upon a person’s opportunity to exercise his or her right. 3. Strict Scrutiny Std. of Review: Most difficult to overcome: * Often used for fundamental rights, such as the right to privacy: birth control, live with your family, sex among married people, right to marry.
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