Tenth Amendment Jurisprudence - Constitutional Law - Solved Past Exam, Exams of Constitutional Law

Download Tenth Amendment Jurisprudence - Constitutional Law - Solved Past Exam and more Exams Constitutional Law in PDF only on Docsity! ID: Exam Name: Instructor: Grade: ConLawIHLP_(Christiansen) S08 NA (Exam Number) ConLawlHLP_(Christiansen)_S08 NA Eric C. Christiansen ¥) Page 4 of i Exam taken with SofTest v8.5  ConLawIHLP_ (Christiansen) SOB Db 1) To: Honorable Christiansen From: Congressional Aide 1) 1S THE MSAAA PERMISSIBLE UNDER MODERN 10 TH AMENDMENT JURISPRUDENCE? The 10 th Amendment provides that all of the powers that are not given to the federal = es government in the United States Constitution are’granted to the states: This means that certain a powers are reserved for the states. States generally have the power to enact legislation relating to the health, welfare, safety, and morals of their citizens. VVhen the state acts, it is presumed to be acting validly. Here, however, the MSAAA is a Congressional Act, which is presumed invalid. The MSAAA requires each state to pass a criminal law punishing adultery, which is defined as any voluntary act of sexual intercourse between a married person and a person who is not his or her spouse. The Supreme Court (herein, the Court) has held that Congress may pass laws regarding criminal laws (Perez). But the federal government may not pass laws that are considered so coercive as to commandeer the state to do something. Under the 10 th een Mer seas eee Amendment, when the government places a positive obligation on the states, this is considered J ——___— commandeering and is unconstitutional. For example, where the federal government required the state to either take title of radioactive waste or to the court found that the federal government was attempting to place its hands through state gloves. Similarly, in NY v. US “the court found that it was unconstitutional for the federal government to require the state to implement its law before it went into place. Page tof 12 {Question 7 continued) ConbawIHLP_(Christiansen) S08 NA Eric C. Chris... become "Sexual Refugees” and travel to different states to evade the laws, thus the law would likely be found constitutional. ) boty pint et MQ U foe | Wee “ SECOND ERA; 1890's-1937 It was during this era that the Court severely narrowed the scope of the CC authority. It was during this era that commerce was considered only the commercial transaction itself, meaning the buy/sell stage. This severely limited authority because it excluded any manufacturing or production of commerce. For example, in EC Knight, the Court allowed a sugar monopoly because the monopoly had to do with preduction and manufacturing, which Congress could not regulate, THerefore, the monopoly was fine. Among the states was considered anything that had a direct effect on one or more states, and the 10 th Amendment was read broadly as preserving a large zone for the states. Congress could not significantly intrude into the state's police power authority through use of its ISC authority. Thus, if the court were to determine the constitutionality of the act in this era, it would likely find that the act is unconstitutional because it is not regulating “commerce” as defined by the Court. THIRD ERA; 1937-1985 It was during this era that Congress got much, if not more, authority to regulate under the commerce clause. COngress now had a broad authority under the CC due to the changing economy (depression) and the New Deal. HEre, any stage of the transaction (not just buy/sell) was considered commerce. Additionally, anything that had an appreciable, either direct or indirect, effect on [SC was considered amona the states. And the 10 th Amendment was “but a Page 4 of 12 (Question 1 continued) ID: ConLawIHLP_ {Christi nsen)_S08 NA Eric C. truism." Under this era, if the court were to discuss the constitutionality of FAAA, it would likely find thal the act is constitutional for the same reasons as the first era of commerce clause authority. PRESENT ERA: 1995 and on The present era brings a different perspective of CC authority. This era has narrowed the CC authority and has attempted to revive the 10 th Amendment. In this era, commerce among the states is either: (1) usé,of channels, (2) instrumentalities, or (3) activities that substantially effect Cae 3 ae SC. Here, it does not appear that COngress is attempting to regulate the use of channels, which are the highways, byways, streams, and roads” Nor does it appear that Congress is regulating the instrumentalities of interstate commerce, which are things or persons. Congress may attempt to argue that it is attempting to prevent persons from traveling interstate, but this would likely not pass muster under the test. The best chance Congress has to pass this law is under the third prong of the test: activities substantially effecting ISC. _f{— A distinction must be made between two types of activities: BOON GING Or eee One: Wher: the court loaks at economic activities, the court may aggregate the effects on ISC of thase ; SS activities. (Wickard/Raich) ‘This means that if an actis economic in nature, then even a trivial } effect on ISC may be substantial enough to pass muster. For example, in Wickard, the court cv) found that one wheat farmer's homegrown wheat that was in excess of the maximum amount ite allowed had a substantial enough effect on ISC to be regulated by the commerce clause. THe Court found that the effect of that one farmer, cumulated with the effects of all others similarly situated, could be considered a substantial effect on ISC. Similarly, in Raich, where the Court allowed regulation over homegrown marijuana, even though there was no legal market for it Page 5 of 12 (Question 1 continued) ID: ConLawIHLP_(Christiansen) S08 NA Eric C. Chris..+ and the growers had to be licensed (and follow other procedures), the effects could be cumulated and it was considered substantial. The Congress could attempt to argue that it is part of a comprehensive scheme, and although this part is non-economic, the scheme of the entire act is ecanomic in nature (like Raich), so itis economic; but it is likely that this argument would fail miserably because there is no comprehensive scheme, this is just one act. When we look at non-economic activities, however, (like Violence against Women Act in Morrison, or the guns free school zones act in Lopez), the court may only look at those activities that have a direct effect on interstate commerce. It appears that this act is non- economic in nature because it regulates nothing that has to do with anything that is bought or sold, and really only states that it is attempting to punish adultery, which is an act that occurs in “) i private in one's own home. When the activity is non-economic Congressianal findings (while helpful) are not determinative. In Morrison, for example, despite COngress' findings that violence against women cost millions of dollars each year, it was not enough to determine that I there was a substantial effect on ISC T Here, there doesn't even seem to be any congressional findings on how this type of "Sexual Immorality" costs or how it effects ISC. Steps could be taken to quickly remedy this problem, however. COngress could get a committee to look into the traveling habits of adulterous veces and determine how much this costs. And although this is not determinative, it would be considered helpful. Further, it would have a better chance of passing through the court's ae analysis if it had a jurisdictional hook, meaning something that would hook it to commerce. This oe eae is a simple step like stating the law differently, i.e. “Adultery is defined as any voluntary act of sexual intercourse between a married person and a person who is not his or her spouse who travel interstate." Page 6 of 12 (Question 1 continued) - ConLawIHLP_ {Christi The reason that the level of abstraction is important is because it determines the level of scrutiny that must be applied to the law. If the right is deemed fundamental, strict scrutiny (herein, SS) must be applied. However, if the right is deemed not fundamental, then rational } basis is the standard. v Many rights that are now considered fundamental have not always been protected and for many years were only subject to rational basis. For example, the right to marriage was first 4 determined to be considered a right in Loving (anti-miscegenation statute), although it was not a yet explicitly called a fundamental right. But later in Zablock/ (child custody payments), the court found that the right to marry was fundamental, which meant that it was subject to strict “ scrutiny. Concerning other rights, like procreation, in Buck the court found that there was no fundamental right to procreation ("three generations of imbeciles is enough"), but this was later implicitly overruled in Skinner v. OK (Habitual Criminalization Sterilization Act). THe purpose of this discussion is to realize that some things that the court does not find fundamental at one 1 part of history does not determine whether the court will find a fundamental right today. l The MSAAA and FAAA attempt to criminalize adultery throughout the entire UNited States. The act of adultery is prohibited by many states today and has a long history of being a wrong, both a moral and a legal wrong. But history is now considered Just a starting point, because ae now it is important to look at what is going on in society. Like Brennan's dissentin the case = [ where the court found no fundamental of a biological father to custody of his child (not the Y husband) when he had an adulterous relationship with the mother,the court cannot limit the definition of family to the conventional definition (the one it wishes to impose), because our society is one that is changing and evolving where the court's definition of "family" may not Page © of 12 (Question ¢ continued) ID: ConLawIHLP_(Christiansen) S08 NA Eric C. Chrisg.. encompass all. Aside from the fact that the acts seem to be overbroad because it could include the Criminalization of people who are separated, but still considered legally married; or it could criminalize a couple who is having a threesome, or foursome with another couple: or married couples with open relationships, the right sounds like it is one of PRIVACY, But where does this right come from, and what is protected? The right of marital privacy first came about in eirswerd Gers there was a law that prohibited the use of condoms between married persons for the purpose of contraception. This law was challenged and struck down because the court recognized a right to marital privacy, and included in this right to privacy was the right to choose to bear or beget a child. THe court found that the law (which allowed condoms for prevention of disease} was unconstitutional because it invaded that private marital zone. Ina later case, Eisenstadt the court recognized again this right to privacy, but extended this right to privacy to individuals. There the court held that the right belonged to Individuals, and not just married couples. The challengers of this law may argue that their right to engage in extramarital relations is one of individual privacy, the ability to make decisions concerning one's personal autonomy. In later cases like Lawrence, the court recognized that people have a fundamental right to engage in private consensual sexual behavior. Again, this constitutional protection to engage in sexual activity seems to protect the right for married couples to engage in extramarital sexual relations, Thus, it is likely that the Court will find that there is a fundamental right involved. RIGHT INFRINGED? A complete bar or prohibition of a right is an absolute infringement of a right, regardiess of A Page 10 of 12 f {Question t continued) (Christiansen) S08 whether the court finds the right to be fundamental or not. Here, the laws attempt to prohibit entirely ANY extramarital relations. Thus, the right is considered infringed. SUFFICIENT JUSTIFICATION? Because the court will likely find the law to be fundamental, the court requires that the government have a compelling interest. Here, the government's interest is to stop the “devastating rise of sexual immorality among Americans." It appears that their sole justification is a MORAL one. Six of the nine justices today would assert that a moral justification alone is not sufficient, and is not considered a compelling reason. However, the government may attempt to take measures to preserve the family, but their reasoning here falls short of that’ if / the government, however, had some sort of statistical information such as rates of disease increasing because of extramarital affairs or crime or stmetitng ta it might be considered pre See compelling, however, the government's interest here falls short of compelling if however, the court found that the right was not fundamental, then it would only need a legitimate purpose for enacting the legislation, li might be able to pass as attempting to preserve the family. SUFFICIENT MEANS? Because the right is fundamental, the government must be enacting a law that is necessary and narrowly tailored so that it is the least restrictive means. If the purpose is to prevent or decrease sexual immorality, there are many different ways to go about doing this, rather than criminalizing married persons (who likely have children and families to care for). One obvious Page 11 of 12