WORKBOOK: CONSTITUTIONAL LAW Page 78

WORKBOOK: CONSTITUTIONAL LAW Page | 78

GOULD'S

WORKBOOK for CONSTITUTIONAL LAW

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TABLE OF CONTENTS

Chapter 1. INTRODUCTION TO GOULD’S LEGAL LEARNING METHOD…4.

Chapter 2. GOULD’S SHOPPING LIST…5.

Chapter 3. PREMBLE ISSUES for ESSAYS…7.

Chapter 4. ARTICLE I: LEGISLATIVE CONGRESS…13.

Chapter 5. ARTICLE II: EXECUTIVE BRANCH…18.

Chapter 6. ARTICLE III: COURT SYSTEM…21.

Chapter 7. LEVELS of SCRUNTINY…24.

Chapter 9. PLAINTIFF CLAIMS BASED IN ARTICLES…27.

Chapter 10. FIRST AMENDMENT RIGHTS…32.

Chapter 11. FIFTH AMDMENT TAKINGS…51.

Chapter 12. RIGHTS UNDER THE THIRTEENTH and FOURTEENTH AMENDMENTS…53.

Chapter 13. GOULD'S LEARNING SYSTEM…68.

Chapter1.

INTRODUCTION TO GOULD’S

LEGAL LEARNING METHOD

Gould's Legal Learning Techniques have been honed over many years, and have helped thousands of law students to succeed in their legal studies.

Gould's unique and innovative learning strategies focus on long-term storage of important and cognizable concepts. Students learn the larger concepts until they are second-nature. Then, they learn the sub-issues, until they have a solid grasp of Gould’s Law Templates.

Finally, students learn the rule statements that relate to each concept, to fill out their understanding of each area of legal doctrine.

Before exams begin, students write out a cognizable list of possible issues, aiding to spot more issues. Gould’s Shopping Lists reliably help students to spot more issues on each essay they write. Shopping Lists allow students to cue in on the important concepts in each essay, and to remember to write their essay responses from an holistic and comprehensive perspective.

Many legal exams are based on strict timing, and Gould’s Techniques comport nicely with speed testing. Gould’s Issue Templates, and Gould’s Shopping Lists, focus the students on the ISSUES AND SUB-ISSUES, quickly, and precisely, thereby enhancing the ability of law students to write dynamic essays.

Chapter 2.

GOULD’S SHOPPING LIST FOR

CONSTITUTIONAL LAW

Gould's Shopping List for Constitutional Law consists of nine items:

GOULD's SHOPPING LIST FOR CONSTITUTIONAL LAW

1. JUSTICABILITY

2. STANDING

3. GOVERNMENT POWERS

4. GOVERNMENT IMMUNITY

5. STATE ACTION REQUIREMENT

6. ARTICLES CLAIMS

7. FIRST AMENDMENT CLAIMS

8. FIFTH AMENDMENT CLAIM

9. FOURTEENTH AMENDMENT CLAIMS

There it is, an entire Shopping List for Constitutional Law, with only NINE ITEMS and just TWENTY WORDS!

The shopping list focuses you on the entire spectrum of Constitutional Law, and assists you in spotting more issues during a timed legal essay. Write the Shopping List before you begin to write your essay, so that you can consider your Shopping List in light of the facts, and thereby use your list to spot more issues.

CHAPTER 3.

PREAMBLE ISSUES for ESSAYS

BASIC TEMPLATE.

PREAMBLE ISSUES for ESSAYS

JUSTICABILITY.

Article III, Section 2.

Real, Live, Case or Controversy.

No Political Questions or Advisory Opinions.

FEDERALISM. If Claim is Filed in State Court.

STANDING.

INJURY IN FACT.

Imminent Injury.

CAUSATION.

INDIVIDUATION.

Jus tertii.

Organizations.

Taxpayer Suits.

REDRESSIBILITY.

RIPENESS.

MOOTNESS.

GOVERNMENTAL POWERS.

STATES, 10TH AMENDMENT. Broad.

Limitation on Federal Action for Regulation and Grants.

FEDERAL, ARTICLES I AND IV. Limited and Enumerated.

11th AMENDMENT STATE IMMUNITY.

EXCEPTIONS. State Officers, Municipalities, Sub-Divisions, State Consent, Injunctive and Declaratory Relief, Congressional Removal of Immunity for 14th Amendment Suits.

STATE ACTION REQUIREMENT.

PUBLIC FUNCTION DOCTRINE.

STATE INVOLVEMENT DOCTRINE.

ESSAY HINTS.

· Many students dive right into a discussion of the claims of a plaintiff, without first discussing the various aspects of Constitutional Law that related to whether or not the plaintiff has a right to forward a claim, in the first event.

· Therefore, discuss the Preamble Issues first, to give a background to the claims of plaintiff, including Justicability, Standing, Government Powers, Government Immunity, and the State Action Requirement.

GOULD’S DOCTRINE.

JUSTICABILITY.

Under Article III, Section 2, of the United States Constitution, in order to be justicable, claims must present a real, live case or controversy. Mere political questions or advisory opinions will not be heard by a federal court.

ADVISORY OPINIONS. A federal court will not hear advisory opinions, because advisory opinions do not constitute a case or controversy. For example, cases regarding legislation that has not been passed, or cases in which the court is not the final authority, do not present a real, live case or controversy, and will not be heard by a federal court.

POLITICAL QUESTIONS.

A federal court will not hear issues that are constitutionally committed to another branch of government, or that are inherently incapable of judicial resolution. For example, a federal court will not hear claims based on the republican form of government clause, challenges to impeachment, or challenges to a President's foreign policy decisions, because those claims are political questions, and do not constitute a case or controversy.

STANDING. A plaintiff must have standing in order to bring forth a federal claim. Standing includes injury in fact, causation, individuation and redressability.

INJURY IN FACT. Plaintiff must have suffered a specific, cognizable injury in fact, economic or otherwise.

Imminent Injury. Under the imminent injury doctrine, an injury that has yet to occur, but which is almost certain to occur in a specific, concrete future, may qualify as an injury in fact.

CAUSATION.

Plaintiff must show a causal connection between their injury and the conduct of the government.

INDIVIDUATION. A plaintiff may not recover for generalized, abstract causes of action based only on the fact that they are a citizen or a taxpayer. Rather, a plaintiff must suffer an abrogation of their own Constitutional rights. Exceptions to this rule include: jus tertii, taxpayer suits, and organizations.

Jus Tertii. Under jus tertii, a third-party claim is appropriate where there is a close relationship between the plaintiff and the injured person, and where the injured person is unlikely to bring a claim on their own behalf.

Taxpayer Suits. A state or federal taxpayer has no standing to challenge government regulations simply because of their status as taxpayers. However, a taxpayer suit is proper where plaintiff alleges a religious establishment clause violation comprising an excessive expenditure under the taxing and spending clause, that is intended for the government to help establish a religion.

Organizational Standing. An organization will have standing, where the members of the organization would have standing to sue, the interests to be litigated are germane to the organizational purpose, and neither the claim nor the relief require participation of the individual members of the organization.

REDRESSIBLE INJURY. The plaintiff must seek relief that eliminates the harm, and of which the court has the capacity to provide.

RIPENESS.

In most cases a plaintiff must wait until a situation ripens into a full case or controversy, before bringing a claim in federal court. However, where plaintiff suffers an immediate threat of future harm, and the claim has some facts and information that a court may use in a judicial review, a court may decide to hear the case even though it is not technically ripe for judicial review.

MOOTNESS.

A live case or controversy must exist at all stages of judicial review, and where circumstances occur after the filing of a suit, which act to terminate plaintiff's cause of action, the claim will be dismissed. However, certain situations where a claim would normally be rendered moot, but where a court will hear the claim, occur:

1. Where the harm is capable of repetition but will evade review.

2. Where a defendant voluntarily ceases their wrongful activity, but is free to resume such activity in the future.

3. Where a representative's class action claim is moot but one member's claim remains viable.

GOVERNMENTAL POWERS.

10th AMENDMENT for STATES. The 10th Amendment provides that all powers not granted to the federal government, nor prohibited to the states, are reserved to the states or to the people. Under this broad police power, states may legislate to protect the health system, safety, welfare or morals of their citizenry. A state’s power to tax is derived from the 10th Amendment's reserved powers.

LIMITATION ON FEDERAL ACTION. The 10th Amendment also sets limits on federal action, and Congress may not compel state regulatory or legislative action, or otherwise commandeer states to an act or enforce federal laws. When distributing federal grants, Congress may attach conditions to receipt of the grant money, but the conditions must be clear, and relate to the purpose of the spending program. Congress may prohibit harmful commercial activity by state governments.

FEDERAL LEGISLATIVE POWER. Congress may only exercise the specific, limited, enumerated powers listed in the Constitution, and it must not violate any other parts of the Constitution when it enacts legislation. There is no broad federal police power, except as relates to military bases, Washington D.C., federal lands, and Indian reservations.

11TH AMENDMENT IMMUNITY: SUITS AGAINST STATES. The 11th Amendment bars federal courts from hearing private suits against state governments for damages. Exceptions include:

· State Officers, Municipalities and Sub-Divisions. State officers, municipalities, and sub-divisions of the state, do not enjoy immunity from suit, and may be sued.

· State Consents. A state is free to consent to suit by a private individual.

· Congressional Removal of Immunity. Congress may remove 11th Amendment immunity for actions under the 14th Amendment, but Congress must be clear that they are removing immunity.

· Injunctive and Declaratory Relief. Plaintiff may forward claims for injunctive and declaratory relief, because such claims do not seek monetary damages.

STATE / GOVERNMENTAL ACTION REQUIREMENT.

A government actor must have caused the Constitutional abrogation to plaintiff, because Constitutional liberties apply to protection against governmental action. The only private activity that is prohibited is under the 13th Amendment's prohibition against incidents of slavery.

PUBLIC FUNCTION DOCTRINE.

Sometimes it looks as though a private actor took an action, and thus that the state action requirement is missing. However, governmental action will be found where an ostensibly private entity performs a task that traditionally and exclusively was performed by a governmental entity, and the otherwise private act will be considered governmental in nature.

STATE INVOLVEMENT DOCTRINE.

Sometimes it looks as though a private actor took an action, and thus that the state action requirement is missing. However where there is a symbiotic relationship between the government and a private entity that is affirmatively authorized by the government, along with excessive entanglement between the entities, state action will be found. State involvement will also be found where the state facilitates, encourages or authorizes discrimination in areas such as housing, employment, or providing essential services.

CHAPTER 4.

ARTICLE I: LEGISLATIVE CONGRESS

BASIC TEMPLATE.

THE ARTICLE I LEGISLATIVE CONGRESS

FEDERAL LEGISLATIVE POWER.

Articles I & IV.

Specific, Limited, Enumerated.

NECESSARY AND PROPER CLAUSE.

Not an Independent Source of Power.

DELEGATION OF LEGISLATIVE POWER.

Clear and Intelligible Standards.

TAXING AND SPENDING POWER.

Tax and Spend for General Welfare.

VETO POWER.

Article I, Section 7.

Legislation Passed by Both Houses Presented to President.

If Affirmed, then Made Law.

POCKET VETO. If Less than Ten Days in Session of Congress, Bill Fails to Become Law Under a Pocket Veto.

LEGISLATIVE VETO.

Unconstitutional.

ARTICLE IV, FEDERAL PROPERTY POWER. Congress May Regulate All Federal Property.

COMMERCE CLAUSE.

Under Article I, Section 8, the Commerce Clause, Congress May Regulate:

· CHANNELS.

· INSTRUMENTALITIES.

· PERSONS AND THINGS.

· SUBSTANTIAL EFFECT. Cumulative Impact Test, Affectation Doctrine.

TENTH AMENDMENT LIMIT ON FEDERAL POWERS.

BROAD POLICE POWER OF STATES TO REGULATE.

LIMITATION ON FEDERAL ACTION. Congress May Not Compel State Regulatory or Legislative Action.

ESSAY HINTS.

· The most important issue in this section, as far essay issues, is the Commerce Clause and the Dormant Commerce Clause.

· The Commerce Clause applies when the federal government regulates commerce, and the Dormant Commerce Clause applies when a city or state or other state entity, attempts to regulate commerce.

GOULD’S DOCTRINE.

NECESSARY AND PROPER CLAUSE. Congress may make all laws that are necessary and proper in order to carry out specific grants of enumerated powers. However, the necessary and proper clause is not an independent source of power by itself.

DELEGATION OF LEGISLATIVE POWER.

Congress may delegate some of its powers to other branches of government or agencies, as long as Congress provides clear and intelligible standards, and the powers that are delegated are not those uniquely held by Congress. Further, Congress may not usurp power from other branches and confer such power upon itself.

TAXING AND SPENDING POWER.

Congress may tax and spend for the general welfare, but may not legislate for the general welfare. Congress also has a conditional spending power, and may put conditions on the receipt of federal funds, as long as the conditions are related to the purpose for which the funds were granted, and the conditions are clearly articulated. The conditions may require that a state act in a certain manner in order to receive federal funding. Thus, the conditional spending power of Congress is a way in which the federal government can regulate certain areas of state concerns, even though Congress may not directly compel a state to implement legislation.

VETO POWER.

Under Article I, Section 7 of the Constitution, all legislation passed by both houses of Congress must be presented to the President in his capacity as head of state. If the President affirms the legislation, it is made law. If the President does not affirm the legislation, he must return it within ten days to the house of Congress in which it originated, and while Congress is in session, while stating his objections to the legislation in writing. Congress then considers the objections, and the legislation. If Congress again votes on the bill, and overrides the Presidential veto by a two-thirds vote in each house, the bill will become law without sanction by the President. Where the President fails to take action on a bill within ten days, the bill will become law. Where there are fewer than ten days in a session of Congress, and Congress adjourns before the ten day time period, the bill will fail to become law under a pocket veto.