CON LAW FED-STATE FALL 2005 JUDICIAL POWER A. The judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish. B. Jurisdiction of the Federal Courts 1. Who can litigate? i. Standing Requirement a. Constitutional Standing 1. Injury in fact – The injury must be concrete and particularized, and actual or imminent, not conjectural or hypothetical 2. Fairly Traceable to Defendant (Causation) – you must be challenging the action that caused your injury in fact 3. Redressability – Must show substantial likelihood that the injury is redressable, meaning a favorable ruling would eliminate the harm. E.g. – Mothers enforcing criminal deadbeat dad statute, putting them in jail does not get money for moms. b. Prudential Standing 1. Assert your right not as a 3rd party (exception where there is a close relationship between parties such as doctor/patient, son/farther, class action) 2. No generalized grievances 1. Taxpayer can’t say I am unhappy with the way govt. is spending my money, the exception is if tax money is being spent on religion 2. Congressman can only make challenge if he actually loses his seat 3. Citizens generally don’t have the right to challenge the constitutionality of a law if they are not effect by that law personally 3. Must be within the zone of interest of the statute ii. Ripeness 1. Must be actually threatened or suffer hardship 2. Must be fit for judicial review iii. Mootness – A case must be dismissed when, because of changes, the court’s determination of the legal issue cannot have any practical effect in achieving the desired results Exceptions – (1) Voluntary cessation of the alleged illegal conduct; (2) reasonable likelihood that the alleged conduct will be repeated and again evade review Difference between Ripeness and Mootness – Ripeness bars consideration of claims before they have been developed whereas mootness bars consideration after they have been resolved iv. Not a Political Question (E.g. Questions regarding the conduct of foreign relations, or issues as to when hostilities have stopped)
1. Those issues committed by the Constitution to another branch of government; or 2. Those inherently incapable of resolution and enforcement by the judicial process 2. What matters can be heard by the Supreme Court? i. Original Jurisdiction – The Supreme Court may hear as an original matter the following: 1. Controversies between two or more states (This is exclusive to S.C.) 2. Actions in which ambassadors are parties 3. Controversies between US and a State 4. Actions by a state against the citizens of another state ii. Appellate Jurisdiction 1. Federal Question J (Marbury v. Madison was a federal question jurisdiction case. Could not be heard in SC as an original matter) 2. Diversity J 3. Admiralty 4. Controversies naming the US as a party 3. The Exceptions Power of Congress i. Congress can not effect the SC’s original jurisdiction ii. Congress can except out matters from the SC and lower federal court’s appellate jurisdiction (Ex Parte McCardle – Congress took away appellate J of court forcing court to dismiss the case) C. Judicial Review 1 General Rule – Federal Courts possess the power of judicial review of actions taken by the legislative and executive branches. If those actions are found to be unconstitutional, federal courts may refuse to honor or enforce them. 2. Federal Courts decisions are binding on States – Martin v. Hunter’s Lessee shows this point when State court awarded land in title dispute to Virginia citizen but Federal Court vested the British owner’s rights EXECUTIVE POWER
I. 3 Sources of Presidential Authority: A. Article II, §1: the executive power shall be vested in the President of the U.S. B. Article II §III: Take care clause: executive is to take care that the laws are executed. C. Article II, §2: Commander in chief of military: president “shall be Commander in Chief of the Army…”
II. Other Executive Power Under Article II 1. Make nominations with the advice and consent of the senate 2. Drafting treaties, subject to senate ratification 3. Pardons 4. Recommend and propose legislation 5. Receive foreign nation III. Domestic Power as Chief Executive – It is unclear what power the president has over internal affairs as the chief executive. Perhaps the best guide for determining the validity of the presidential actions regarding internal affairs can be based on Justice Jackson’s opinion in Youngstown.
A. Where the President acts with the express or implied authority of Congress, his authority is at its maximum and his actions likely are valid. (The Zenith) B. Where the President acts where Congress is silent, his action will be upheld as long as the act does not take over the power of another branch or prevent another branch from carrying out its tasks. (Twilight Zone) C. Where the President acts against the express will of Congress, he has little authority and his action likely is invalid. He needs a Constitutional trump card. IV. Appointment Power A. GR: Art. II, § 2, cl. 2 -- Two ways to be appointed as an officer of US 1. Principle Officers: those appointed with Advice & Consent of Senate (a) Examples of officers subject to A&C: ambassadors, public ministers and counsels, judges of SC, and anyone else that is an advice and consent appointment, also heads of cabinets and independent agencies (FCC, FTC) (b) If CG creates a position subject to advice and consent of the senate, then, by their terms, they will be principal officers 2. Inferior Officers: P alone can appoint, courts of law or heads of departments can appoint, but not the CG itself. While Congress may not generally appoint inferior officers it may appoint its own officers to carry on internal legislative tasks (i.e., staff). The Independent Counsel is an inferior officer because he has limited duties of investigating a narrow range of persons and subjects. V. Removal Power – Constitution is silent as to removal except for ensuring tenure of all Art II judges for good behavior A. Purely Executive – If officer is performing purely executive functions then he can be unilaterally removed by President, does not matter if principle or inferior officer. Meyers – The postmaster is a purely executive officer and president alone may remove him. It violates the separation of powers to allow Congress approval of removal. B. Quasi Multi-Branch – Removal restrictions can be placed on these types of officers (removal for good-cause) Humprhey’s – FTC commissioner could have removal limited to good cause because he was quasi-legislative and quasi-judicial. C. Other limitation on Removal 1. Perkins – Congress can limit the removal of inferior officers appointed by department heads, when in the public interest 2. Morrison v. Olson – The standard may have changed as far as removal of purely executive appointees in contrast to Meyers. Congress can place limitations on President’s removal power as long as those restrictions do not impede the President’s ability to perform his Constitutional duties. VI. Scope of executive agency’s power – When Congress delegates authority to an administrative agency, how far does their authority go. (Someone is contesting the agency’s interpretation or authority) FDA v. Brown and Williamson applied the Chevron approach. A. First question: If CG has spoken, are the words of the statute plain in meaning on their own terms? If so, then it is the Court’s duty to uphold the plain meaning and determine whether or not the agency has misconstrued the statute. Deference given to
Congress’ words. In FDA v. Brown, the Court concluded that Congress clearly stated that Tobacco was not to be regulated by the FDA. B. If CG has not spoken, and the statute is ambiguous or silent on the topic, then there is nothing to interpret and therefore the role of the Court is merely to decide whether the interpretation of the agency was a Rx one. Court must defer to the agency as long as the agency is reasonably acting w/in the scope of their authority. This is called Chevron deference. U.S. v. Mead – This case talks about the lower deference given to regulations promulgated by private letter rulings of a regulating agency. If agency goes through full note and comment process, then they are given Chevron deference, if they only go through private letter ruling process then not as much deference and Court has more ability to interpret their regulatory power. VII. Executive Privilege A. The executive privilege is not a constitutional power, but rather is an inherent privilege necessary to protect the confidentiality of presidential communications. B. Presidential documents and conversations are presumptively privileged, but the privilege must yield to the need for such materials as evidence in a criminal case to which they are relevant and otherwise admissible. This determination must be made by the trial judge after hearing the evidence. Judge performs a balancing test, with the hierarchy as follows: 1. National security and military secrets are the most privileged 2. Law enforcement or open litigation flies are next in line 3. The right to receive complete, honest, and unfettered advice VIII. Immunity A. Civil – It is clear that the President can not be sued civilly for decisions made within the outer perimeter or scope of the duties of his office. This does not cover conduct that occurred before he took office or after he leaves. B. Criminal – Unclear as to the immunity here. Likely to have immunity if within the scope of his duties. More likely if within his exclusive scope, like dealing with terrorist nation. VIII. Impeachment A. Article 2, §4: P and VP shall be removed from office on Impeachment for, and Conviction of high crimes and misdemeanors (Treason). B. Can President be criminally prosecuted without being impeached? Impeachment has two parts there is impeachment (majority vote in the house) and conviction (two-thirds in the senate). If impeached and convicted by Congress, then that does not mean criminal conviction. However, it is clear that upon impeachment and conviction by Congress, a President is then subject to indictment. Question remains, can a President be subject to indictment without being impeached and convicted in Congress. Agnew says yes. But watch the specific words of Art. I Sec. 3, Clause 7. IX. President’s ability to make law (Separation of powers) A. Can Congress delegate law making authority to the President? U.S. v. Curtiss says that Congress can delegate law making authority to the President as long as they give the president an “intelligible standard” as a guideline. “Regulate in a reasonable and just manner,” and “regulate in the public interest” have been held to be enough of an
intelligible standard. In U.S. v. Curtiss, the standard was not really at issue because President was making law over foreign policy, where he has inherent authority anyway. X. Foreign Policy A. The power over foreign affairs is comprised of specific textual grants such as the power to regulate foreign commerce (A.I, §8, cl.3), declare war, approve treaties (Article I, §8) and the treaty power (Article II, §2, Cl.2), coupled with the implied authority of the US to exercise those powers inherent in the concept of sovereignty. Allocation of these powers as b/n CG and the P, except where the C provides specifically for the CG (CG may declare war and P treaties are subject to Senate ratification), primary authority over foreign affairs rests with the P. Garamendi B. Treaties – President has power to enter into treaties by and with the advice and consent of the senate (2/3 vote). Treaties, like other federal law, are treated as the “supreme law of the land” and override and State action or law in conflict with the treaty. C. Self-Executing vs. Non-Self-Executing Treaties o Some treaties are expressly or impliedly self-executing (they are effective without any implementation by Congress). Other are not effective unless and until Congress passes legislation to effectuate their ends. If the treaty is not self-executing then it will not be treated as the “supreme law of the land” until Congress acts to effectuate it. But, the treaty itself can serve as an independent basis for Congress’s power to adopt the required legislation (Congress need not point to one of its enumerated powers such as the commerce clause). D. President can terminate treaties with proper notice. Why? President can not just terminate a statute at will. This is because president hast the sole authority to recognize a foreign nation, if he wanted he could just not recognize the nation with whom we singed a treaty and it would just disappear. E. Executive agreements are like treaties but President enters into them without ratification from Congress. President has inherent Curtiss-Wright power to enter into these agreements but can also have Congress explicitly delegate specific authority to enter into an executive agreement. Is executive agreement supreme law of the land like a treaty? Look to see where President’s power has come from. Probably trumps state law even if President got authority only from inherent Curtiss-Wright powers. XI. War Powers – Only Congress has the power to declare war but President has the power to enact military actions in defense of the country. He is the commander in chief. A. War powers resolution – This requires President to report to Congress with 48 hours before sending troops into hostilities. No President has complied with this. XI. Hamdi – U.S. Citizen was detained in Afganistan and held without hearing as an enemy combatant. There is a law that says no citizen shall be detained except pursuant to law. There was a law that said President was to use all necessary force against terrorist nations. Is that sufficient to hold Hamdi? Mathews Test for determining Due Process: 1. What is the nature of the interest asserted by the private individual? 2. What is the countervailing gov’t interest 3. Whether or not there is an alternative form of process that can better reconcile those two
LEGISLATIVE POWER A. Congress may pass laws by means of bicameralism and presentment – Meaning passed by house of reps, and senate and presented to the president for a chance at veto B. A legislative veto is unconstitutional because it violates bicameralism and presentment. The legislative veto usually arises where Congress delegates discretionary power to the President or an executive agency. In an attempt to control the delegation, Congress requires the President or agency to present any action taken under the discretionary power to certain members of Congress for approval. If they disapprove, they veto the action and that is the final decision of the action. This is unconstitutional because to be valid, legislative action (the veto) must be approved by both houses and presented to the President. In Chadha, the Court also noted that the legislative veto violates the implied separation of power requirements of the Constitution. Example – In Chadha, Congress granted INS power to deport or suspend from deportation illegal aliens. INS decisions to suspend deportation had to be submitted to Congress. This was deemed unconstitutional. C. Exception to Presentment – no presidential approval needed for a proposed constitutional amendment which has passed both Houses by the requisite two-thirds majority vote and threefourths of the states ratify the amendment. C1. Exceptions to bicameralism and presentment i. If there is no legislative purpose - filibuster ii. A single body can determine its own rules. iii. Legislation not binding outside groups does not need to follow bicameralism setup. iv. House of Rep alone can initiate impeachment. v. Senate has power alone to try impeachment. vi. Senate is given power of advice and consent of judicial appointments. vii. Where C specifies a single house can act alone then it is ok. D. Congress’ ability to delegate power to executive agencies to pass their own regulations 1. This is not deemed to violate bicameralism and presentment because the agencies can only act within the scope of the power that Congress authorized. Furthermore, Congress must provide the agency with an adequate and intelligible standard to follow. E. Line Item Veto is unconstitutional because it is inconsistent with the constitutionally proscribed veto power because the President is making new law and sharing in Congress’ power of the purse F. Cooley – Congress passed legislation adopting all existing State laws on pilotage, and adopting any future laws passed by States. The first part is ok, but the second part is no good because that violates bicameralism and presentment. COMMERCE POWER A. Definition – On its face, the Commerce Clause is an affirmative grant of legislative power to Congress, authorizing it “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art I., Sec 8, Clause 3. B. Purpose – To prevent individual states from erecting trade barriers to interstate and foreign trade. And, to cerate a common market among the states. C. On its face interstate commerce is: Justice Marshall in Gibbons v. Ogden defines interstate commerce as every species of commercial intercourse which concerns more states than one. D. Modernly Congress can regulate three categories under the IC clause What cases are the basis for this?:
1. The channels of interstate commerce – Roads, Railroads, Airways, Bridges, Waterways 2. The instrumentalities of interstate commerce and persons and things in interstate commerce – Trucks, Planes, Railcars, Boats, etc. 3. Activities that have a substantial effect on interstate commerce (under the aggregation principle of Wickard) E. What has substantial effect on interstate commerce? 1. Originally in E.C. Knight, the court held that manufacturing a product is not part of commerce itself, thus the manufacture could not be regulated under the IC clause. However, Darby overruled this standard, and held that the production of goods for commerce could be regulated rather than being limited to regulating the commerce itself. This is because the goods, while made wholly intrastate, were intended for interstate commerce and thus can be regulated under the second prong. Wickard comes along and says Congress can regulate goods that not only were made wholly intrastate, but also were never intended for interstate commerce. Wickard gives us the third prong and basically says that Congress can regulate activities that have a substantial effect on interstate commerce. Even if the activity itself is so small but when aggregated will have a substantial effect. 2. Examples – i. Swift – Court ruled that Congress could regulate wholly intrastate slaughterhouse because it was part of a larger stream of commerce ii. Shreveport – Court held that intrastate shipping rates could be regulated because it was effecting how things were shipped amongst the states iii. Morrison – Court held that passing statute regulating abuse of women was not proper under the commerce power. Argument that abuse of women leads to collective cost of hospitalization rehab was too tenuous to establish a substantial link with interstate commerce. Abuse is not an economic activity, even with findings from Congress that gender based violence had a substantial effect on commerce. iv. Raich – Is home growing and personal consumption of marijuana a commercial activity that can be aggregated for purposes of the substantial effects test? Court ruled yes. Court says no real evidence needed, so long as Congress could conceive of a rational basis of connecting the activity with a substantial effect on IC, then the Court could not second guess Congress’ decision. F. Lopez limitations on Commerce Power 1. The court held that there must be a rational basis to believe that the activity being regulated by Congress substantially effects interstate commerce. Lopez says to find this rational basis (1) the activity must be economic in nature or the regulation of the activity must be an essential part of a larger regulation of economic activity; and (2) there must be a jurisdictional element, meaning that the prosecutor must factually show that the particular act (in the aggregate) substantially effects interstate commerce. The court also found that it would be helpful if there were legislative findings saying that the activity effects interstate commerce. Lopez goes on to say that you can not rely on inference upon inference.
F. Does Congress have power to prohibit commerce? Under Ames, Court says that “regulate” is broad as to include prohibiting commerce. This case prohibited bringing Irish lottery tickets into the states. DORMANT COMMERCE CLAUSE A. Definition – Power of the Court to place limits on state authority when it comes to interstate commerce. B. Cooley – This case stands for the proposition that States can also regulate commerce in the case where Congress passed a law indicating that their intent is to have States regulate a particular area. If Congress wants to displace state rule on national aspects, they have the power to do so. If Congress has not displaced the States and is silent, then the states may legislate, subject to judicial review that the legislation does not improperly discriminate against commerce or unduly burden it. States may regulate in a way that discriminate against interstate commerce or burdens it, if they receive congressional approval to do so. C. Modern Law – States may pass legislation over local commerce when not affirmatively preempted by Congress. However States will be limited by the Courts exercising the Dormant Commerce Power if: 1. The statute is facially discriminatory to out of state competition. If the statute is facially discriminatory then it will be held virtually per se invalid, unless the state can show that it advances a substantial local purpose that cannot be advanced by any nondiscriminatory means (no state has ever been able to show this in trying to defend a facially discriminatory statute). 2. The statute does not overtly discriminate but has that effect. Here Courts will perform a balancing test, the burden on interstate commerce v. local benefits. Pike-Bruce balancing test. Examples? D. Examples – 1. Oregon Waste – Court ruled that surcharge on out of state waste being dumped in state was not valid because burden on interstate commerce outweighed local benefit. 2. Granholm – Court held that states could not discriminate against out of state liquor distributors even though 21st amendment grants states exclusive right to regulate alcohol. This is because the principle of non-discrimination in interstate commerce is so ingrained that to the extent that the 21st amendment does not expressly authorize discrimination, it can not be permitted. F. Exceptions – 1. State as a market participant – The commerce clause does not prevent a state from preferring its own citizens when the state is acting as a market participant (buying or selling products, hiring labor, giving subsidies). However, under South-Central Timber, a state may not place downstream restrictions on a sale that would discriminate against interstate commerce. In this case Alaska attempted to say that if we sell you our timber, then you must process it in our state. Ruled to be an invalid downstream restriction. CONSTITUTION AS THE ONLY SOURCE OF POWER (Federal Elections) A. Some powers are denied to both Congress and the states. For example, the Supreme Court has held that the Qualifications Clause, setting the qualifications to serve in Congress are
exclusive can not be altered by Congress or the states. In Thornton, states tried to set term limits on their member of U.S. Congress. This was held to be improper. B. Why is this important? 1. Uniformity 2. Want everyone to be eligible to serve 3. We do not want it aimed at the Aristocracy 10 Amendment Limitation on Legislative Power COMMERCE POWER A. 10th Amendment: The powers not delegated to the US federal government by the C, are reserved to the States. ISSUE: Can Federal Government Regulate State Governments? B. National League of Cities v. Usery -- Federal govt. set for standards regulating wage requirements of state govt. officials. State says that Fed. Govt. can’t regulate them in this manner because 10th amendment limits them. State govt. are immune from property tax and income tax so they should be immune from regulation as well because both the power to tax and regulate are in Art. I. Moreover, federal govt. can not tell states where to put their state capital. So what does this opinion apply to? What is immunized from federal regulation? Pursuant to the 10th amendment, some universe of traditional state activities are immunized from federal regulation (fire prevention, police protection, sanitation, public health, etc.) C. Garcia overrules Usery and basically says that the Usery standard is unworkable. States are not immunized because there is a supremacy clause. If states want protection they can lobby at Congress to get favorable legislation passed, they can elect who they want to represent them at Congress, and the electoral college system protects them at the executive level (not really). FINAL HOLDING: The 10th Amendment is not enforceable as a limit on the commerce power. Federal Govt. can regulate State govt. COMMENDEERING OF STATE OFFICIALS IS PROHIBITED BY THE 10TH Am. A. Printz Case – Congress passed an act requiring state officials to run background checks when people buying guns. Issue: Can Federal Govt. use State executive branch to enforce it’s laws. HOLDING: NO. Federal Govt. can regulate State govt., and can also regulate private citizens of a state, but can not tell State govt. officials how to regulate their private citizens. Compare with Reno, where court held that Congress can regulate state govt. by prohibiting them from performing certain acts. In Reno, Congress prohibited state govt. from disclosing info on driver’s license application. B. How can Federal govt. get around this and force state govt. to run the background checks? 1. They can use spending power and say here is some money for the prevention of crime, you can have it if you run the background checks. 2. They can threaten to preempt state gun control regulation, but if you want to maintain regulatory control, you can do so if you perform these ministerial background checks. THE SPENDING POWER A. Congress can use the spending power to regulate outside of their enumerated powers. B. 4 Elements to using spending power to regulate:
1. Must be for the general welfare (The Money or The Regulation?) – this is hard to define, almost anything can be said to be for the general welfare 2. Must be unambiguous – States can not be surprised, can’t throw it in fine print, must be clear and unequivocal 3. Must be related to a federal interest, national project, or program 4. No other Constitutional bar – Not that the regulation would be barred constitutionally, but that the result of the regulation would be unconstitutional What element says that the money must be related to the regulation? C. Dissent – Says that the Federal govt. can only regulate how the specific money is spent. Can’t say here is money for highway safety, and you can only get it if you make drinking age 21. D. Reality: Must be some nexus, drinking age 21, makes highways safer than drinking age 18. Very broad nexus will do. 11th Amendment – State Sovereign Immunity (Commerce Power can not be used to abrogate state sovereign immunity) A. Beginning with Chisholm an out of state citizen sued Georgia in federal court and won. States did not like this precedent so 11th amendment was passed. 11th amendment says Federal Courts do not have jurisdiction in a case where citizen of one state sues another state (diversity jurisdiction). B. Next questions was, now what about a citizen of a state suing their own state (federal question jurisdiction)? When the 11th amendment was passes there was no such thing as federal question jurisdiction. Hans says that the 11th amendment extends to cases of federal question jurisdiction. C. So when can states be sued by its citizens? Problem is that Congress can regulate states by passing laws, but if citizens can not sue to enforce those laws then how will those laws be enforced? First of all, the federal govt. can sue states. States can sue other states. Citizens can sue individual state officers who are part of a continuing violation of the laws (pursuant to Ex Parte Young). Most importantly citizens can sue states under the following conditions: 1. States consent to being sued 2. Where congress has required that as a condition of receiving federal money, that states consent to being sued 3. Where states have entered into an interstate compact requiring consent 4. Under certain bankruptcy provisions (currently being litigated) 5. Where Congress has abrogated state sovereign immunity by exercising there § 5 power of the 14th amendment. § 5 Power of the 14th Amendment A. The 14th amendment states that no State shall deprive any person of life, liberty, or property without due process of law; nor deny to any person the equal protection the laws. § 5 allows Congress to make laws that enforce the 14th amendment. If congress properly executes a law under it’s § 5 power, then citizens will be permitted to sue states to enforce such law, in other words, the state’s sovereign immunity will be abrogated. B. When will state sovereign immunity be abrogated under Congress’ § 5 power? 1. Congress must make its intentions to abrogate sovereign immunity unmistakably clear in the language of the statute.
2. The statute was properly passed under Congress’ § 5 power. a. How do we know when the statute was properly passed? To properly adopt a law under such power: i. Congress must point to a history or pattern of state violation of such 14th amendment rights and; ii. Adopt legislation that is congruent and proportional to solving the identified violation. This means that the statute is narrowly tailored to fixing the identified violation, and that Congress has not granted rights beyond what is guaranteed by the Constitution. C. Examples (Keep in mind that Congress will be more likely to meet the congruent and proportional test when dealing with a suspect class [race], than a quasi-suspect class [gender], than with a non-suspect class [age/disability]) 1. Garrett – Congress passes a law prohibiting states from discriminating against disabled people in employment settings without a compelling governmental interest. Individual sued and Court held that state sovereign immunity had not been properly abrogated by this law because first of all, Congress did not identify a history or patter of irrational employment practices by states, and second, this law would grant more protection to disabled people than guaranteed by the Constitution. Disabled people are not a suspect class so the Constitution says they can be discriminated against as long as there is a rational basis. 2. Hibbs – Congress passed a law dealing with gender discrimination and granting workplace leave. Court held that this law did abrogate state sovereign immunity. Gender is a quasi-suspect class. What if Govt. sued under this law? 3. Lane – Disabled person could not get to the courthouse and sued under ADA which required equal access to public facilities. Court look at this as a due process violation and not an equal protection violation. This way they held that state sovereign immunity was abrogated. 4. Flores – Church sued city to allow expansion of church under RFRA. Constitution guarantees freedom of religion, but not to any extent. Under Constitution, if a neutral law incidentally burdens religion, then as long as there is a rational basis for that law, tuff bananas for the religion. RFRA required there to be a compelling governmental interest in passing a neutral law that incidentally burdens religion. That is beyond what the Constitution guarantees. Suit not allowed to go forward. INDIVIDUAL RIGHTS AS LIMITATIONS ON STATE POWER A. Bill of rights (1st 8 amendments) applies to federal government. Does it also apply to states? B. Question is, which of these rights are fundamental? Natural Law (Cissero). C. Palko phraseology: 1. A principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental. 2. Implicit in the concept of ordered liberty 3. Neither liberty nor justice would exist if they were sacrificed 4. A hardship so acute and shocking that our policy would not endure
D. Black says that the bill or rights should be totally incorporated as to leave no room for subjective interpretation by judges E. Law is that total incorporation has not been accepted, instead we use a process of selective judicial incorporation under Palko’s phraseology. F. All of bill of rights have been incorporated except for: Grand jury indictment, 7th amendment right to jury trial, requirement of a unanimous jury to convict.
Rome: Cicero a. “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.” i. Law is anchored in reason; man shares with God the capacity to reason, reflect, etc. This is what differentiates man from the plants and animals. ii. Provides a non-religious basis for natural law by saying it’s knowable by everyone, even those without religious instruction b. Positive law: law that is enacted by men, a product of human thought c. Natural law: law that is not a product of human thought. The innate knowledge that humans have that something is objectively good or evil (rape is wrong and everyone knows it). i. Holds that law cannot depend on what people or judges make it. d. Note: The point of natural law is to serve as a check on the positive law e. Note: the mere fact that the law is approved by the majority does not necessarily make it in line with right reason or natural law.