Notes for Constitutional Oral Exam: You must understand ALL of this for your unit

oral exams. If one person in your unit fails, you whole unit has to redo their oral exams.
A) Core Concepts:
1) Freedom: Self control over your mind & body
2) Natural Rights (John Locke): Theory we are born with total control (we choose to give up some freedom)
3) Civil Liberties: Right to freedom (mind, body, property). Debate between negative vs. positive rights.
4) Civil Rights: Right to be treated equally (racism/sexism/classism)
5) Fundamental Role of Gov: Provide more security than individuals can for themselves.
6) Anarchy (State of Nature): Life with no gov (gangs + private security can be like a gov)
7) Social Contract: You exchange obedience to the gov for protection (K=contract).
8) Rule of Law: Ppl obey laws b/c out of respect or fear for our K.
9) Social Contract is a Collective Belief: If enough people believe it, it become real, through the sheer number of
people.
B) Political Philosophy:
1) Classical Republicanism: Greek and Roman 500-400BC idea that the individual submit/sacrifice for common good
2) Natural Rights: European Enlightenment 1600-1800 idea that individual needs and freedom matter.
3) Locke: Gov should work to protect ppl's natural rights
4) Voltaire: Gov is abusive if it restricts freedom of speech/press and endorses religion
5) Rousseau: Gov should reflect the will of the majority
6) Montesquieu: Splitting power among groups prevents abuses.
7) Hamilton/Madison (Federalist Papers): Combining all of the ideas above. Fed. Papers great for speech quotes.
8) Tocqueville: America works because of enlightened self interest.
C) Political Ideology:
1) Political Ideology: A schema (lens) in which you view government/the world, family #1 influence (mom) (Conservative,
Liberal, Moderate)
2) Conservative (Right): Personal freedom self responsibility, smaller government (Republican, Libertarian)
3) Liberal (Left): Community responsibility, active government (Democratic, Green)
4) Moderate (Center): Mixed views.
5) Political Party: A group of ppl with similar views who try to get ppl with their views elected.
6) Republican Party (GOP, Red, Elephant, Right): Self Responsibility. More gov role in social conduct, less gov in
economic activity.
7) Democratic Party (Blue, Donkey, Left): Community Responsibility. Less gov role in social conduct, more gov in
economic activity.
8) Third Party: Other than D or R
9) Libertarian: Less gov in social conduct and less business activity.
D) Federalism:
1) States Come First: Colonies (states) experienced close to 200 years of separate freedom before joining the USA.
2) Federalism: Splitting, overlapping, and conflicting power between the state and federal (national) gov
3) History of US Federalism: States had more power, then equal in the 1800s. 1900s Federal became supreme
(recently state wins some).
4) Enumerated Powers: Each branches (1: cong, 2: pres, 3: courts) powers are enumerated (listed) in the Constitution.
Congress being most powerful, their enumerated powers are the most important.
The two most powerful enumerated power of Congress are its power to make laws to: 1) Tax and Spend and 3)
Regulate Interstate Commerce
6) Preemption: IF the Constitution permits the Federal gov to make a law, fed law overrides any conflicting state law.
E) Constitutional History
1) Articles of Confederation (1777-88):
No executive, no judiciary, no taxation, no commercial regulation (this is what prompts changes)
2) State Constitutions:

1st wave: 1 house leg, weak ex, elect jud,

2nd wave: 2 house leg, powerful gov, indep jud
3) Alexander Hamilton (1755-1805): Pusher for national power (born W. Indies)
4) Annapolis Convention (1786): Fix interstate trade issues, AH push for bigger change at PC
5) Philadelphia Convention (1787): Amend AoC, secretly drafts new doc, main issue state representation. (Delegates:
10% signed DoI, 44% young enough to fight ARW, 74% top 5% richest, 30% refuse to sign)
6) Con. Compromise: House(Pop)+Senate(State)
F) Constitutional Law:
1) Constitutional Gov: US one of few societies with strong belief in rule of law.
2) US Constitution (1788): Social contract ratified by ppl conventions (representative vote), 9/13.
3) US Constitution Characteristics:
a) Republican demo (representative)
b) Federalism (national/state share power)
c) Separation of Powers (legis, exec, jud)
d) Rule of Law (but NASCAR style)
Secret Sauce (not written but essential)
e) Common Good/Virtue: We have no king to keep us together, so we must have the community identity and sacrifice to
make the experiment work.
5) Constitutional Law: Rules set in the Constitution for all of US (harder to amend).
6) Congressional Law or Act: Rules created by Congress for all of US, same power as Constitution (easier to amend,
Jud. can kill).
7) US Code (U.S.C.): The numbering of congress laws for organizational purposes.
8) Code Federal Regulations (C.F.R.): Additional rules the bureaucracy adds to flush out laws.
9) Enumerated Powers (Article 1, Section 8): Listed powers (17+NPC)
Clause 1: The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and
provide for the common defense and general welfare of the United States.
Clause 3: To regulate commerce with foreign nations, and among the several states (Interstate Commerce Clause)
10) Enforcement (Future Action) Clause: Language that allows Congress to make news laws based off enumerated
power or amendment.
11) Necessary and Proper (Elastic) Clause: This is Article 1s enforcement clause, allow Congress to make new laws
as long as connected to one of the 17 enumerated powers in Article 1, Section 8.
Clause 18: The Congress shall have power - To make all laws which shall be necessary and proper for carrying into
execution the foregoing powers.
12) Power of Taxing and Spending: Article 1, Section 8, Clause 1. It gives the Congress the power to tax and spend.
NPC lets Congress make new laws to do raise money to pay for something it wants.
13) Mandates: If when the Fed demands the state to do something. If the state refuses, the Fed will deny it money.
(States can refuse to obey and lose the money). Example: NCLB
14) Unfunded Mandate: Fed doesnt give extra money to carry out an order, but just threatens to take way other money
15) Interstate Commerce Clause (ICC): Article 1, Section 8, Clause 3. It gives the Congress the power to regulate
interstate commerce (commerce between states). NPC lets Congress make new laws to raise money to pay for
something it wants. ICC is Feds most useful tool!
Core ICC Cases:
1) Hammer v. Dagenhart (1918)
Child labor is a state issue, and not interstate commerce. In 1941, court reversed itself.
2) Heart of Atlanta Motel v. US (1964)
Racism can have a substantial effect of interstate commerce.
3) US v. Lopez (1995)
Gun free school zones have NO substantial effect on interstate commerce.
4) US v. Morrison (2000)
Reducing violence against women have NO substantial effect on interstate commerce.
G) Judiciary:
1) Judicial Review: Cases brought to it, judiciarys power to interpret what laws mean
(Marbury v Madison: killed part of Jud Act 1789)

2) Loose Interpretation: Interpret Constitution loosely to evolve with changing times.

3) Strict Interpretation : Stick to literal word meaning of the Constitution
4) Originalism: Stick to intent of the framers/law writers (Scalia).
5) Judicial Activism: Court should not shy from being early in solving public controversies.
Dred Scott v. Sandford (1857) being an example of extreme activism.
6) Judicial Restraint: Court should wait until the more democratic branches exhaust resolving public controversies.
7) 3 Levels to Federal Court:
Supreme Court (1)
Circuit Court of Appeals (13):
We are in the 9th Circuit
District Trial Court (94):
We are in the Northern CA Fed District Court
82% Male, 18% Female, 49% GOP, 45% DEM
82% White, 5% Hispanic, 0.5% Asian
8) All Federal Judges: Appointed by President > confirmed by Senate serve for life.
Tradition has been for Cir+Dist nominees, Pres will get the approval of those areas senators.
9) Confirmation: Senate Judiciary Committee interviews but its whole Senate that votes (51)
Filibuster: a delay tactic used by minority party that can force 60 votes needed.
10) Precedent/ Stare Decisis: Make laws more predictable, judges obligated to rule in current case as it had in similar
past cases. Lower court must obey past decisions made by higher courts. Court if persuaded can reverse its own
decision, or decisions of lower court.
11) Certiorari: D+C courts must accept all cases, but SC can refuse to hear a case. It takes 4/9 votes for SC to accept a
case Avg: 1000+ request, 100+ granted. (activist vs restraint key to how many cases get granted cert)
12) Majority Decision: Chief justice assigns just. to write the decision will be precedent (5/9)
13) Concurring Decision: Justice who voted with majority but for diff. reasons (no precedent, just persuasive on future)
14) Dissenting Decision: Justice who voted against majority (no precedent, just persuasive on future)
15) Amicus Curiae Brief: Concerned groups not involved in the case who want to persuade the justices.
16) Remand: Send case back to lower trial (district court) to reexamine the facts
H) Due Process:
1) Due Process (DP): Legal concept that gov must respect your legal rights (Magna Carta).
2) Procedural Due Process: Legal concept that gov must follow pre-determined steps (accepted)
3) Substantive Due Process: Legal concept that the content of the law may not take way fundamental liberty (strict int.
reject S DP) Lochner v. NY (1905) > Roe v. Wade (1973)
4) Fundamental Liberty: Bill of Rights (accepted), personal privacy: body + family issues (st int reject)
DP Flowchart:
Fed must follow BOR >
14th A passes saying states must give due process (PDP>SDP) >
Courts begin incorporating parts of the BOR, some thru PDP, some thru SDP>
Courts then expand SDP to include personal privacy, the substance of laws cant deny personal privacy (Lochnerizing)
5) 5th Amendments DP (1791): Along with other things, 5 says federal gov must give you DP.
6) 5th Amendment (1791):
Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just compensation
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5 Amendment Summary:
a) Only accused can refuse to talk (self-incrim)
b) Fed gov protect procedural+substantive DP
c) Gov force you to sell to it your property, it can re-sell for common good (eminent domain)
7) 14th Amendments DP (1868): Along with other things, 14 says states must give you DP.
8) 14th Amendment (1868):
All persons born or naturalized are citizens of the United StatesNor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person equal protection of the laws.
th
14 Amendment Summary:
a) Ppl born here are citizens

b) States protect procedural+substantive DP

c) States give everyone equal treatment
9) Selective Incorporation: Extending parts of the BOR to states case by case thru 14th (P+S DP).
st
th
nd
1 Amendment: Gitlow v. NY (1925), 6 Amendment: Gideon v. Wainwright (1963), 2 Amendment: Not Yet (DC v.
Heller moves that way (2009))
Judicial Views on DP Spectrum:
Right: PDP: Just make sure govs (state/fed) follows the right steps (esp crimes/trials)
Center: SDP-Lite: Just make sure that gov (state/fed) dont violate BOR
Left: SDP: Make sure gov (state/fed) dont violate what court decide are fund. liberties (case precedent leans strongly left).
10) Strict Scrutiny: No right absolute, over series of cases, legal test to take way fund freedom:
a) Gov has a compelling reason
b) Only way possible
c) Done in the most narrow means
(We will see strict scrutiny again as a 3 level test when it comes to equal protection of the law)
Core Due Process Cases:
1) Lochner v. NY (1905)
Court uses SDP for the first time to strike down NY state law on baker work hours as a violation of the fundamental liberty
of at will labor-personal privacy (this begins the path to Roe v. Wade).
2) Gitlow v. NY (1925)
st
Court uses SDP to incorporate 1 Amendment (speech part)
3) Roe v. Wade (1973)
st
nd
Court uses SDP to strike down state laws banning 1 +2 trimester abortions under as a violation of the fundamental
liberty of ones body-personal privacy.
I) EQUAL PROTECTION:
1) Equal Protection Clause (EPC): 14th says states must treat everyone equally (14: Civil War). Reverse incorporated to
also mean Fed must EPC (Bolling v Sharpe, 1954) Brown v. Board I (1954) > Ricci vs. De Stefano (2009)
th
Note: 14 As EPC only applies to state/local govs, not private biz, which is why Civil Rights Act of 64 used ICC. CRA64
allows people or fed gov to sue for money.
2) Gov Can Treat People Unequally - 3 Levels Test:
1- Strict Scrutiny (Compelling Test) Applies to: Race, religion, political access, fund. rights
Gov has to prove compelling gov interest, the action is only way, and is most narrowly done.
2- Middle Tier Scrutiny (Important Test) Applied to: Gender
Gov has to prove important gov interest.
3- Minimal Scrutiny (Rational Test) applied to: Commercial activity, childrens rights
Need to have a rational reason.
Core Equal Protection Cases:
1) Plessy v. Ferguson (1896)
Separate is equal if services/facilities are equal.
2) Brown v. Board I (1954)
In education separate in inherently unequal.
3) Bolling v Sharpe, 1954)
th
DC schools a federal entity must also follow the 14 , a process of reverse incorporation.
4) Korematsu v US (1944)
Internment of Jap. Am is justified under strict scrutiny (later reversed by dist court in 84, but never by the Supreme Court)
5) US v Virginia (1996)
Not allowing women to VAs state military college did not pass intermediate scrutiny.
6) Grutter v Bollinger (2003)
Boost in admissions by race does not pass strict scrutiny.
7) Ricci vs. De Stefano (2009)
Refusing to rule on EPC, it focused on potential of getting sued under Civ Rights Act of 64 by saying before fire depts can
racially discriminate in order to undue unintentional past racial discrimination of poor minority test results on fire promotion
test, it must have proof it fears lawsuit under CRA64.