Constitutional tricks that make amendments stick

1st: speech, religion, press, assembly. 2nd: arms. 4th: search/seizure. 5th: self-incrimination. 6th: fair trial, counsel. 8th: cruel punishment. 10th: powers reserved to states.

Chief Justice Marshall established judicial review — the Court's power to declare laws unconstitutional. Not in the text of the Constitution — inferred from its logic. Foundation of constitutional law.

Due Process Clause: government can't take life, liberty, or property without fair process. Equal Protection Clause: states must treat similarly situated people equally. Basis of most civil rights law.

Originalism (strict): interpret as framers intended. Living document (loose): interpret according to current context. Shapes judicial appointments and landmark rulings like Roe, Heller, Obergefell.

Procedural due process: government must follow fair procedures before taking life, liberty, or property. Substantive due process: some rights are so fundamental that government can't take them regardless of procedure used.

Establishment Clause: government cannot establish or favor a religion. Free Exercise Clause: government cannot prohibit religious practice. Freedom of speech: not absolute — incitement, true threats, obscenity not protected. Freedom of press. Right to peaceable assembly and to petition the government.

McCulloch v Maryland (1819): Congress has implied powers beyond those enumerated; states cannot tax federal government. 'Necessary and proper' clause interpreted broadly. Gibbons v Ogden (1824): federal commerce power extends to navigation and interstate commerce — broadly interpreted. Together established national government supremacy.

Bill of Rights originally applied only to federal government (Barron v Baltimore, 1833). 14th Amendment (1868) due process clause gradually used to 'incorporate' most Bill of Rights provisions against states. Not all rights incorporated — right to jury trial in civil cases, grand jury indictment. Nearly all criminal procedure rights now apply to states.

Rational basis: law must be rationally related to legitimate government interest — very deferential. Intermediate scrutiny: law must be substantially related to important government interest (sex discrimination). Strict scrutiny: law must be necessary for compelling government interest, narrowly tailored (race, national origin, fundamental rights) — government almost always loses.

Protected: political speech (core protection), symbolic speech (flag burning), commercial speech (some), offensive speech. Unprotected: incitement to imminent lawless action (Brandenburg test), true threats, obscenity (Miller test), defamation, fraud, fighting words. Time/place/manner restrictions allowed if content-neutral.

Warrant requires: probable cause + particularity (describe place to be searched, items to be seized). Exceptions to warrant requirement: consent, exigent circumstances (emergency), search incident to arrest, plain view, automobile exception, stop and frisk (Terry stop). Exclusionary rule: illegally obtained evidence cannot be used.

Grand jury: federal felonies require grand jury indictment. Self-incrimination: cannot be compelled to testify against yourself — Miranda warnings required before custodial interrogation. Double jeopardy: cannot be tried twice for same offense after acquittal. Due process: federal government. Takings: private property taken for public use requires just compensation.

Article I gives Congress power to regulate commerce among the states. Expanded post-New Deal: Wickard v. Filburn (wheat for personal use still affects interstate commerce). Lopez (1995) and Morrison (2000) imposed limits — must substantially affect interstate commerce. Basis for Civil Rights Act, drug laws, environmental regulation.

Citizenship: all persons born or naturalized in the US are citizens (overturned Dred Scott). Due Process: states cannot deprive of life, liberty, or property without due process — incorporates most Bill of Rights protections against states. Equal Protection: states must treat similarly situated persons similarly — basis for desegregation, gender equality, marriage equality.

Chief Justice Marshall: the Constitution is supreme law; courts interpret law; therefore courts must be able to void laws that conflict with the Constitution. Applied to federal AND state laws (via 14th Amendment). Gives federal judiciary enormous policy-making power.

Legislative (Congress): makes laws, controls budget, declares war, confirms appointments, impeaches. Executive (President): enforces laws, commands military, vetoes, appoints, conducts foreign policy. Judicial (Courts): interprets laws and Constitution via judicial review. Key checks: veto and override, advice and consent, impeachment, appointments power.