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Weiser - CON LAW - Spring 2005 - Concepts Outline

Weiser - CON LAW - Spring 2005 - Concepts Outline -...

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SEPARATION OF POWERS…1 FEDERALISM…1 State Powers…1 Congress’s Power over the States…1 Why Protect Federalism With Judicially Enforced Rules…2 MAKING JUDICIAL DECISIONS…2 JUDICIAL ACTIVISM …2 JUDICIAL RESTRAINT…2 Determining Legislators’ Intent…3 Tiers of Scrutiny…3 STARE DECISIS…3 PUBLIC OPINION…4 Other Countries…4 Enforcement Problem…4 Modes of Interpretation …5 Republic Form of Government…6 Intent and Interpretation of 14A…6 Court’s rising power…7 COMMERCE CLAUSE…7 LOCHNER…7 The New Deal…7 DISCRIMINATION…8 FUNDAMENTAL RIGHTS…9 1
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CONCEPTS OUTLINE *Scalia and Thomas are originalists: Thomas thinks you should look at dictionary from time Constit was written * When the ct comes up with a bad rule one effect is a increase in cases in which they have to explain their distinction SEPARATION OF POWERS Basic principle of constitutional system is enumerated and limited pwrs for Fed Gov to protect liberty. Evidence that Founders wanted separation of powers (1) Clause prohibiting involuntary reduction of state's territory (2) Judicial power clause (3) Privileges and Immunities clause (4) The amendment provision, requires vote of 3/4 th of the states to get new (5) Guarantee Clause (6) 10 th amendment (inkblot on the bill of rights) Executive Vesting Clause – connotes some inherent pres powers (meaning there is something more than enumerated powers) ( Steal Seizure Case ) Models: 1. Pres acts and Cong ratifies. Act is illegal if not ratified (Douglas’s view) 2. Pres acts and Congress overrides (Dissent’s view) 3. Congressional Authority is needed for Pres to act (Frankfurter is closer to this argument) 4. Jackson’s opinion with the 3 options FEDERALISM Core federalism principle - Congress may not “commandeer the legislative process of a state by requiring them to enact laws.” There is something wrong with commandeering legislative process –ct recognized this in New York – fed cannot commandeer the legislature of the states. This principle does not challenge Garcia, which involved regulations on states in a manner similar to regulations on private employers. o Short of coercion, federal govt can encourage compliance with federal regulatory program through: [but states CANNOT be mandated] i. Cooperative federalism – choice to states of regulating in area according to federal states or facing preemption ii. Spending Clause – by attaching conditions to funds NOW The dual federalism conception appeared to die in Garcia; the idea of true preemptive federalism is tempered by the recent cases protecting state sovereignty; thus, the current conception of federalism appears to be best captured by the cooperative federalism concept (when fed gov encourages st to cooperate and offers money for them to cooperate).
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