Constitutional law

Question 1

three primary areas of law tested

Answer 1

(1) powers of the three branches and their limits

(2) relationship between states and the federal gov’t (federalism)

(3) relationship between gov’t and individuals (individual rights)

Question 2

general approach

Answer 2

(1) who is taking the action?

(2) what kind of problem is this? What area of con law? Spot the narrow issue

(3) how is this type of problem supposed to be resolved?

Question 3

how to figure out the “who” question, who is taking the action?

Answer 3

private citizen vs. branch of gov’t vs. state

use labels like: “citizen vs. federal government” or “state vs. fed. gov’t”

Question 4

how to figure out what type of con law question is being tested

Answer 4

authority of government to do something / powers

“is X’s action constitutional?”

or

whether government action violates rights

Question 5

how to determine how to resolve the question

Answer 5

powers question…ask : “how can the particular actor do X under the constitution?”

rights question …. ask: “how is right being infringed” and then “how does constitution protect against this violation?”

Question 6

commonly tested powers questions

Answer 6

(1) president’s powers

– treaty rules

– supremacy of constitution over other laws

— executive agreements

(2) legislative powers

– taxing and spending

– foreign and interstate commerce

— congress has no general police power except narrow situations

(3) judicial power

– judicability

– 11th Am prohibits a private party or foreign government’s claim against a state

(4) power of states and cities

– only these have police powers

– dormant commerce clause

– priv and imm clause art 4

Question 7

taxing vs. spending power

Answer 7

taxing must bear some reasonable relationship to revenue production or be within congress’s regulatory power

spending must be based on the general welfare

both are limited by individual rights

Question 8

common rights questions

Answer 8

– EPC? government treats people differently

figure out what standard of scrutiny to apply and who has burden [government has burden for strict and intermediate scrutiny but not under rational basis]

– DPC?

fundamental rights

procedural rights

– Takings?

– First Am?

Question 9

fundamental rights

Answer 9

• privacy
  marriage, family relations, parental rights, sexual conduct [no standard yet], procreation
• vote
• interstate travel

Question 10

fifth vs 14th Am

Answer 10

fifth = gov’t

14th = state

Question 11

first amendment topics

Answer 11

freedom of speech, press, religion

how is speech being regulated? content? time-place-manner?

religion - neutral and generally applicable or not?