Constitutuional Law Notes: 07/30/10

JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer

I. Judicial Liberalism
a. The first term was synonymous with Judicial Restraint.
b. However, you can’t do your job if you’re not doing anything activist. No decision is going to be non-activist.
II. Selective Incorporation
a. The Framers of incorporation believed that the first Amendment was particularly more important than any of the others.
i. All of this is a game of balancing whether rights in a particular case more important to an ordered free society than the free hand the government has to use.
III. Sherbert v. Warner
a. Even though there are rules and stuff for working hours and wages and all, no matter what the intent was, the fact is that the 1st amendment free practice is more important than any policing of any corporation.
IV. Caroine Products Co. Case (1938)
a. Footnote 4 – the possibility that when the first Amendment is at stake in the litigation, you actually reverse the presumption of constitutionality. An act of legislature that directly infringes will be presumed unconstitutional, and the full burden of proof will be placed on the government. This footnote becomes the “Preferred Freedom Test”. Freedom will always be preferred.