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Roadmap of Constitutional Law

A. Federalism: Federalism means that the federal and state governments co-exist. Some of the main principles
stemming from federalism are:
1. Limited, enumerated powers: the powers of the federal government are limited to those that are
enumerated b the !onstitution.
". Separation of powers: each of the three branches of government has its own enumerated powers, and
one branch ma not ta#e actions reserved b the !onstitution to one of the other branches.
$. !ongress% !ommerce power: the most important power given to !ongress is the power to regulate
commerce.
&. 'ormant !ommerce !lause: under the 'ue (rocess !lause, the mere existence of the federal commerce
power restricts the states from discriminating against, or undul burdening, interstate commerce.
!. 'ue (rocess !lause: the 'ue (rocess !lause of the 1)
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Amendment has two different tpes of effects:
1. Substantive 'ue (rocess: it limits the *substantive+ power of the government to regulate certain areas of
human life ,e.g., child-bearing-.
". (rocedural 'ue (rocess: it imposes certain procedural re/uirements on government when it ta#es an
individual%s *life, libert, or propert.+ ,0xample: before government can ta#e awa food stamps ou
have been receiving, it must give ou a hearing.-
'. 0/ual (rotection !lause: 1he 0/ual (rotection !lause of the 1)
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Amendment prevents government from
ma#ing certain tpes of classifications. mainl ones that unfairl treat similarl situated people differentl.
,0xample: the 0( clause is what prohibits governments from running raciall segregated schools.-
Three Standards of Review
A. 1hree standards: 1here are three #e standards of review, which reappear constantl throughout
!onstitutional Law. 2hen a court reviews the constitutionalit of government action, it is li#el to be
choosing from among one of these three standards of review.
1. Mere rationality: of the three standards, this is the easiest one to satisf. 2hen the court applies this
mere rationalit standard, the court will uphold the government action so long as two re/uirements are
met:
a. Legitimate state objective: first, the government must be pursuing a legitimate governmental
ob3ective. 1his is a ver broad concept- practicall an tpe of health, safet, or general welfare goal
will be found to be legitimate.
b. Rational relation: Second, there has to be a minimall rational relation between the means chosen b
the government and the state ob3ective. 1his re/uirement is extremel eas to satisf: onl if the
government has acted in a completel arbitrar and irrationall wa will this rational lin# between
means and ends not be found.
2. Middle-level review
a. Important objective: here, the government ob3ective has to be important ,halfwa between legitimate
and compelling-.
b. Substantially related means: and the means chosen b the government must be substantiall related
to the important government ob3ective. ,1his substantiall related standard is halfwa between
rationall related and necessar-.
$. Strict scrutiny: at the other end of the spectrum, the standard that is hardest to satisf is the strict
scrutin standard of review. 1his standard will onl be satisfied if the governmental act satisfies two
ver tough re/uirements:
a. Compelling objective: first, the ob3ective being pursued b the government must be compelling ,not
3ust legitimate or important-. and
b. Necessary means: second, the means chosen b the government must be necessar to achieve that
compelling end. 4n other words, the fit between the means and the end must be extremel tight.
1- No less restrictive alternatives: in practice, this re/uirement that the means be necessar means
that there must not be an less restrictive means that would accomplish the government%s
ob3ective 3ust as well
&. !onse/uences of choice: the court%s choice of one of these standards has two important conse/uences.
1. &urden of persuasion: First, the choice will ma#e a big difference as to who has the burden of proof.
a. 5ere rationalit: 2here the government action is sub3ect to mere rationalit, the individual who is
attac#ing the government action will generall bear the burden of persuading the court that the
action is unconstitutional.
b. 4ntermediate scrutin: 1he burden of proof is put on the government.
c. Strict scrutin: 1he governmental bod whose act is being attac#ed has the burden of persuading the
court that its action is constitutional.
". 0ffect of outcome: Second, the choice of review standard has a ver powerful effect on the actual
outcome. 2here the mere rationalit test is applied, the governmental action will almost alwas be
upheld. 2here strict scrutin is used, the governmental action will almost alwas be struc# down.
2here intermediate level scrutin is used, there%s roughl a 67-67 chance that the governmental action
will be struc# down.
!. 2hen used: 8ere is a /uic# overview of the entire bod of !onstitutional Law, to see where each of these
review standards gets used:
1. 5ere rationalit
a. Dormant Commerce Clause: 5ere rationalit is the main test to determine whether a state regulation
that affects interstate commerce violates the '!!. 1he state regulation has to pursue a legitimate
state end, and be rationall related to that end. Also, the state%s interest in enforcing its regulation
must outweigh an burden imposed on interstate commerce, and an discrimination against
interstate commerce.
b. Substantive Due Process: So long as the fundamental right is affected, the test for determining
whether a governmental act violates S'( is mere rationalit. 4f the state is pursuing a legitimate
ob3ective, and using means that are rationall related to that ob3ective, the state will not be found to
have violated the S'( clause. So the vast bul# of economic regulations ,since these don%t affect
fundamental rights- will be treated b the mere rationalit standard and almost certainl upheld.
c. Equal Protection: 8ere, mere rationalit is used as long as: ,1- no suspect or /uasi-suspect
classification is being used, and ,"- no fundamental right is being impaired. 1his still leaves us with
a large number of classifications which will be 3udged based on the mere rationalit standard,
including: almost all economic regulations. some classifications based on alienage. and rights that
are not fundamental even though the are ver important, such as food, housing, and free public
education. 4n all of these areas, the classification will be reviewed under the mere rationalit
standard, and will therefore almost certainl be upheld.
". 4ntermediate level review
a. Equal protection/semisuspect: First, middle-level review will be used to 3udge an e/ual protection
claim, where the classification being challenged involves a semi-suspect trait. 1he two traits, which
are considered semi-suspect for this purpose, are ,1- gender. and ,"- illegitimac. So an government
classification based on gender or illegitimac will have to be substantiall related to the achievement
of some important governmental interest.
$. Strict Scrutin review
a. Substantive due process/!undamental rig"ts: where a governmental action affects fundamental rights,
and the plaintiff claims that his substantive due process rights are being violated, the !ourt will use
strict scrutin. So when the state impairs rights falling in the privac cluster of marriage,
childbearing, and child rearing, the !ourt will not use strict scrutin ,and will therefore probabl
invalidate the governmental restriction-. For instance, government restrictions that impair the right to
use contraceptives receive this #ind of strict scrutin.