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Osgood ConLaw

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The war power of Congress activated by armed conflict may extend beyond the cessation of hostilities to permit Congress to address the negative effects of war.Osgood_ConLaw_Spring_2020Constitutional Background- Cx premised on U.S. being a representative gov’t- Guarantees all states a republican form of gov’t- It is necessary to interpret the constitutiono There are omissions and blankso The text is foggy: Ex; in vitro fertilization George Romney was born in Mexico but both his parents were U.S. citizen- Does the Cx evolve over time? Some say yes, some say no- Enumerated powers – there is no power in the fed. gov. that is not an enumerated powero 14th Amendment – limit on what the states can do Massive expansion of federal powers All laws “necessary and proper” - Necessary = in fulfillment of- Proper = related toRights in original Constitution:- Writ of Habeas Corpus = bring the body to the court and tell why he is imprisoned- No officer can be a member of congress – aims to prevent conflicts of interest between branches /separation of powers (Art I)o not aimed to stop reserve military members from being in congresso D.O.D. has the guideline that no congressmen and senators cannot be on active duty but can be in the reserves- Trial by jury (also in Bill of Rights) (Art III)Massachusetts Constitution of 1780- Established a state church (later repealed)- “Duty” of legislatures to “cherish” the interests of literature and scienceso “Positive right” to education Some cities sued b/c taxes were not covering the schools well enough, not “cherishing” education- Ruled that the cities had one year to alter the funding formulaArticles of Confederation- When they declared independence from England, all the states were individual, loosely functioning as a group, many problems:o Taxes/funding – no coercive way to collect moneyo No national currencyo Each state had 1 voteo No executive branch – state governors still in chargeo No articulation of rightsRoosevelt Court Plan- Initial New Deal plan was shattered by a series of judicial defeats in the Supreme Courto President Roosevelt sent Congress a message calling for legislation to reorganize the judicial branch (court-packing plan) b/c of large amount of older judges Senate rejected the proposal – it violated constitutional principleso But, within 4 years, Roosevelt had the chance to replace 7 justices on the Court1o Court dramatically reversed itself, sustaining broad applications of the National Labor Relations Act, Fair Labor Standards Act, Agricultural Adjustments Act Court also changed its interpretation of the due process and equal protection clauses to increase government regulatory powers over economic matters- Procedural Due Process = procedure required by the Cxo Jury, administrative law, process of justice system being fairEx; Lawrence v. TX - didn’t violate procedural due process b/c TX passed a law and that is due process  gay rights- Due Process Clause of the Fourteenth Amendment includes a right to liberty in individual decisions concerning the intimacies of their physical relationship.o Ex; Brown v. MS – 3 African Americans were charged w/ homicide, got arrested, taken tosheriffs office, whipped until they confessed to the crime. Denied procedural due process. When the court started incorporating ideas of fairness into the due process clause.- Substantive Due Process = notion that due process not only protects legal procedures but also certain rights unrelated to procedureo Some deprivations are not okay, some say it has to do with privacy but there has to be something else behind privacyo Defenders of due process argue that it creates limits on the gov, not just the legislature butexecutive and judicial branches tooo Due process clause has been used to incorporate provisions of the Bill of Rights that are fundamental rights, protecting people from state interference with those rights.Gitlow v. NY (written manifesto-did not advocate for action –freedom of speech-pleaded not guilty-SC held guilty because State statutes utilizing the state’s police power to regulate speech and the press are constitutional unless they are arbitrarily or unreasonably exercised.) was the first to hold that a right protected in the Bill of Rights, the freedom of speech, applies to the states through incorporation of the first amendment into the due process clause of the 14th amendment o Critics argue that the court is acting illegitimately when it protects rights that are not specifically mentioned in the Cx or intended by the Framers.o Early on, the court used substantive due process to safeguard economic liberties and protect freedom to contract Lochner v. NY – struck down NY law that limited hours bakers could work, interfered w/ liberty interest in due process clauseA state may not regulate the working hours mutually agreed upon by employers and employees as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause.o In modern times, it has been used to protect rights of privacy and personal autonomy Mayer v. NE (1923) – US went to war in WWI, anti German things occurred, NElegislature passed statute that foreign language instruction is banned below 8th grade, aimed at German immigrants, SC struck down under due process clause, interfered with liberty interest of parents and students. No amount of process that could be due to deny them of education. Pierce v. Society of Sisters (1925) – OR passed law saying you must go to publicschool. SC struck it down under due process clause, impermissible interference with parent’s decision of where to send their kids to school. Skinner v. OK (1942) – OK had statute that said if you were a habitual offender of violent crimes you can be castrated. Man appealed and SC said this is a 2violation of the equal protection clause b/c not all criminals were subject to castration. Concurring opinion was that it was a violation of substantive due process. Griswold v. CT (1965) – struck down prohibition on sale of birth control Roe v. Wade – struck down TX abortion law, says explicitly they are doing it under substantive due process (first time this term is used explicitly) Lawrence v. TX – struck down TX sodomy law under substantive due process - West Coast Hotel – WA state minimum wage laws were not a violation of substantive due process, had previously struck down under


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