Constitutional Law Outline.doc

Constitutional Law Outline
Doctrines
Introduction / General Matters 2
Constitutional Review/Interpretation 2
Who is a valid interpreter of the Constitution? (Decentralized Constitutionalism) 2
How should the Constitution be interpreted? 3
Federalism and Federal Power Generally 3
Slavery and its Legacy (Status of African-Americans in the .) 4
Status of Other Minorities During The Period 5
Citizenship 6
Legitimacy of the Reconstruction Amendments (13A, 14A, 15A) 6
Commerce Clause 7
10th Amendment: A Limit on Congress’s Power 11
NOTE: Separation of Powers 12
Tax and Spending Clause 14
Contract Clause 14
13th Amendment 15
14th Amendment 16
14A: Due Process 18
Substantive Due Process 18
Non-Fundamental Rights (Economic Rights) 19
Fundamental Rights 20
Homosexuality 24
Procedural Due Process 25
14A: Equal Protection 25
Race-Based Classification 28
Educational Discrimination 28
Affirmative Action 30
AA in Employment (Minority Set-Asides) 32
Gender-Based Classification 34
Congress’s Power to Remedy Constitutional Violations, or to Modify Constitutional Rights 35
The 11th Amendment 36
Given Congressional action, always ask:
1. Does Congress have the power to enact this legislation?
- Commerce Clause?
- Tax + Spending Clause?
- 14A Sec. 5 (Boerne “congruent and proportional” req)
- 13A Sec. 2, 15A Sec. 2
2. Is the legislation constitutional?
- Is it making a classification? (14A EP)
- Does it impede a right, fundamental or non-fundamental? (14A SDP)
3. Does it infringe on state powers? (10A concern)
Introduction / General Matters
Constitutional Review/Interpretation
Types of constitutional argument that can be used to analyze and interpret the Constitution (Bobbitt):
Textual (look to meaning of words in Constitution)
Historical (relying on intent of framers/ratifiers)
Structural (inferring rules from structure of Constitution)
Intent of the framers/originalism
Framers’ intent often not clear
Why should we be bound by their