Con Structure Law

legislative power

executive power

judicial power

limits on state power

individual rights

Text- Article I
Doctrine - McCulloch

Text and Structure:
Article I/ 10th Amendment
Federal/ State Balance
Doctrine

gives Congress the power to carry out its authority
"rationally related" to implementing its express powers

McCulloch v. Maryland (1819)
US v. Comstock (2010)
NFIB v. Sibelius (2012)

Congress can charter a bank, because doing so is within the implied powers necessary (i.e., “convenient”) to exercise its express powers.

Congress can authorize the continued confinement of sexually dangerous individuals because doing so is necessary (i.e., “rationally related”) to implementing its express powers.

The “individual mandate” to buy health insurance is not within the N&P Clause power (but is within the Taxing Clause power).

Art. I Sec 8
Congress shall have power to regulate; amoung the several states

Commerce = "intercourse" (congress can regulate navigation: under commerce)
Amoung several states = concerning more than one state
conflicting laws dealing w/ interstate commerce then federal trumps

Section 1- No state shall deny any person equal protection of the laws;
Section 5- Congress shall have the power to enforce Section 1

Congress can prohibit private discrimination via the Commerce Clause
even if activity is "local" it can still be reached by Congress if it exerts a substantial economic effect on interstate commerce

Commerce Power allows Congress to regulate
1- channels of interstare commerce (water ways, rivers, roads, etc)
2- instrumentalities of interstate commerce (cars, people moving between states, planes, trains, etc)
3- [economic] activities that affect interstate commerce such as "extortionate credit transactions" (coal mining, loan-sharking, hotel & restaurant, wheat/marijuana; BUT NOT gun possession or gender-motivated violence)

The powers not delegated to the US by Constitution then;
reserved to the states

Commerce C interpreted narrowly
10th Amend broadly
limited federal legislative power
can regulate shipment
commerce would infringe on state rights if regulate working conditions

Commerce C broadly interpreted
10th amend. narrowly
resulted in robust federal power

Roosevelt "New Deal"
War War 2

Court defined 10th amendment narrowly & upheld FLSA as applied to private employers

Court defined 10th amendment broadly & struck FLSA as applied to state/ local employers engaged in "traditional" state/ local government functions

Court defined 10th amend narrowly & upheld FLSA as applied to state/ local employers, whose sovereignty should be protected by political process-- not judiciary

began to re-impose some contraints on federal legislative power

Congress strikes LRWPAA provision saying, while Congress may urge state legislators to regulate, it may not commandeer them and compel regulations

take control of something

Court strikes Brady Act provision, saying Congress cannot commandeer state executives and compel them to implement federal regulations

Court upholds DPPA, which covers state and private actors.

Court strikes PASPA, saying anti-commandeering doctrine prevents Congress from issuing direct orders to states

Art 1 Sec 8: Congress shall have the power to
(1) lay and collect taxes... to pay the debts and provide for the common defense and general welfare of the US
(3) regulate commerce... among the severl states
(18) make all laws which shall be necessary and proper for carrying into execution the foregoing powers

Congress has broad power to tax and spend for the general welfare, so long as the exercise of this power doesn't violate, another constitutional provision

Spending must promote the general welfare; conditions on funding must be clear, related to the purpose of the funding, and not coercive (under 10th amend)

act requires people to purchase health insurance or "pay" a penalty
also had medicaid expansion provision

Text- Art II (express)
Doctrine- Youngstown, Nixon (Implied)

Structure:
Exec / Legislative Balance
Exec / Judicial Balance
Doctrine

President has express powers and
no implied powers (narrow view)
implied powers (limited by Constitution and Statues; Modern View)
implied powers (limited by Constitutions but not by Statutes; Broad View)

(1) Where Congress has authorized presidential action and authorization is constitutional, the President’s authority is “at its maximum.”
(2) Where Congress has neither authorized nor prohibited presidential action, the President’s authority is uncertain and depends on situation.
(3) Where Congress has prohibited presidential action and prohibition is constitutional, the President’s authority is “at its lowest ebb.”

Executive privilege (right against disclosing sensitive info) is implied not express

(1) Yes, the court may decied this case
(2) Yes, But it is qualified and primarily protects military, diplomatic, and national security secrets
(3) Nixon's interest in confidentiality is outweighed by courts' interest in fair administration of justice

it is necessary to protect millitary, diplomatic or sensitive national security secrets
otherwise it infringes on Art III
Court weights general privilege of confidentiality against fair administration of criminal justice

every bill that receives a majority vote in Congress shall be presented to the President to be signed into law or returned with objections. A returned bill that receives a 2/3 vote shall become law

The President may sign a bill into law, and then cancel individual provisions. Congress may, by a majority vote, override the President's cancellation

have to amend the constitution to do that

entities created through the legislative process to deal with areas that require extensive expertise or regulations (ex: CDC, FDA, ect)

NIRA was unconstitutional delegation of legislative power, because it conferred policy-making power on President.

SORNA did not constitute a delegation of legislative power, because Congress set the and provided the AG with "intelligible principles" to follow.

is a term of art that must be mentioned when discussing the nondelegation doctrine
courts almost always finds intelligible principles (even vague ones can suffice)

Congress lays down by legislative act an "intelligible principle" to which the person or body authorized to exercise the delegate authority is directed to conform

tells us that congress cannot delegate the legislative (policy-making) power away from itself

setting policy, high level judgment calls

Congress wouldn’t be able to do its job
If it had to do everything itself
▪ It would have to become experts in everything and spend a lot of time
A lot of stuff might not get done by the federal government anymore
Non-elected officials would end up making decisions and
not get held accountable for it

By statute, congress would confer power to regulatory agencies and keep the power to overturn their decisions without going through the usual process
Legislation must be passed via bicameral approval and presentment to the President (or, if there is a veto, override by a supermajority)

(1) Both houses of Congress must approve; (2) President must approve or veto; (3) If President vetoes, Congress must have option to override.

actions with the purpose and effect of altering the legal rights, duties, and relations of persons outside the legislative branch- policy determinations

Congress can control them through their budget, statutes, and appointment/ removal power
o Legislative veto is not an option
• POTUS can appoint and remove some agency officials sometimes only with senate approval

Express constitutional text, Article II, section 2
Congress can vest appointment powers in the President, Courts of Law, or in heads of the departments

Art II Sec 2: Principal officers are appointed by the President, with the advice and consent of the Senate;
Inferior officers may, at Congress’s direction, be appointed
by the President, the Courts, or the Heads of Departments.

Independent Counsel was an "inferior officer" so Congress could vest her appointment in a court

Subject to the removal by a higher Executive Branch official?
Empowered by the Act to perform only certain and limited duties?
Office limited in jurisdiction?
Office limited in tenure?

"The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate"
After an unfavorable NLRB ruling, Noel Canning argued that 3 of President Obama’s NLRB appointments were invalid. The appointments had been made at a time when the Senate was holding twice weekly pro forma sessions with no business transacted for nearly a month.

the appointments invalid: While the RA Clause
(1) applies to both inter- and intra-session recesses and (2) allows the President to fill vacancies that arise before or during a recess, (3) a 3-day recess (even between pro forma sessions) is too short.

Both Kinds
Inter-session: break between formal sessions of congress
Intra-session: during a singlw congress session, they take a break
Any recess less than 10 days is presumptively too short to trigger the RA power

officers can be removed by congress (through impeachment) or by the President under certain circumstances
The President can remove executive officer except when an officer's independence from the President is desirable (ex: the Independent Counsel), Congress canrequire that the President have "good cause" to remove

The President can invoke executive privilege in situations where there are national security concerns. The court will weigh the importance of confidentiality against the need for the fair administration of justice

"The President is the sole organ of the nation in its external relations"

The President has exclusive power to control recognition determinations

The Court found that the President’s power was “at its lowest ebb” when he refused to list “Israel” on the birth certificate, since he defied a federal statute. His action, thus, could only be valid if the Constitution granted him an exclusive power to recognize foreign sovereigns.
• The Court held that it did, based on Article II’s Reception Clause, Treaty Clause, and Appointments Clause. While Congress has substantial authority over passports, it may not interfere with the President’s recognition power.

Art II Sec 2: President may enter "treaties" w/ advice and consent of 2/3 Senate

Court/ Congress acquiesced in President's entry into "executive agreement"

Art I & II; War Powers Resolution

Rational Basis Review
During his campaign, President Trump published a “Statement on Preventing Muslim Immigration.” As President, pursuant to power delegated to him by the INA, he implemented a proclamation restricting entry of foreign nationals from a set of Muslim-majority countries.
The Court was very deferential to the President, and upheld the proclamation under rational basis review, deeming it rationally related to the legitimate interest in national security, even if that was not the actual interest

Judicial: Civil Litigation and Criminal Prosecution
Congressional: Impeachment
Legislative: Art II Sec 4, Art I Sec 2, Art I Sec 3

Nixon v. Fitzgerald (1982): President has absolute and permanent immunity from civil suits based on official actions during presidency
Clinton v. Jones (1997): President lacks even temporary immunity from civil suits based on acts committed prior to presidency

sitting President has never been criminally prosecuted, but Nixon was named as "unindicted co-conspirator"

The President, Vp and all civil officers of the US, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors

House of Representative shall have the sole power of impeachment

The Senate shall have the sole power to try all impeachments. When the President is tried, the CJ shall preside. No person shall be convicted w/o the concurrance of 2/3 of the members present. Judgment shall not extend beyond removal from office and disqualification to hold office. But the party convicted shall be subject to criminal indictment, trial, judgment, and punishment.

Art III Sec 2 Clause 1 & 2

The judicial power shall extend to all cases . . . arising under this Constitution, the laws of the US, and treaties made . . . under their authority; . . . to Controversies between a state, or the citizens thereof, and foreign STS, citizens, and subjects.

The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases before mentioned, the SCT shall have appellate jurisdiction . . . with such exceptions, and under such regulations as the Congress shall make.

Marbury v. Madison
Martin and Cohens

jusicial review of federal legislative and executive acts

judical review of state court decisions on federal law

Interpretive- Originalist and Evolutive Methods
Congressional- Consider text of Art III and structural principal of seperations or powers
Justiciability- constiutional and prudential

prevent Court from making political decisions, but cases reveal methods are flexible

meaning is fixed at time of drafting/ ratification
Original Meaning
Test (intra/ inter)
Structure
Original Intent
Drafters
Ratifiers

meaning evolves in responce to chaning social/ economic conditions
Doctrine
Tradition
Pragmatism

Supreme Court’s Original Jurisdiction – Cannot be altered by Congress, Marbury (1803)
Supreme Court’s Appellate Jurisdiction – Congress can make “exceptions,” McCardle (1868), but cannot create “rules of” Klein (1871).

cases must meet standing requirments (5 of them) to be "justiciable"

cases and controversies
Courts will not
(1) issue advisory opinions;
2) hear claims of parties without standing;
(3) adjudicate unripe issues;
(4) adjudicate moot issues; or
(5) adjudicate political questions.

court won't adjudicate a case that lacks:
1- actual dispute between adverse parties, and (opinion of the justices 1973)
2- Substantial likelihood that a decision in facor of the claimant will have some effect
• Hayburn’s Case (1792)
• Plaut v. Spendthrift Farm (1995)

(1) A personal and concrete injury;
(2) Caused by defendant’s conduct;
(3) Redressable by judicial relief.

(1) Rights of third parties; or
(2) Grievances that are generalized. (court can follow when it wants)

Injury
Causation
Redressability

Plaintiffs must have a past personal injury (if seeking monetary relief) or a likely future personal injury (if seeking injunctive/declaratory relief).

Injury must be fairly tracebale to D's conduct

Injury must be “redressable” by requested relief – meaning that a favorable judicial decision would be likely to remedy the injury.

No 3rd party standing
No generalized grievances

Litigants cannot raise the rights of 3rd parties
– except when
(1) they have close relationships with the 3d parties or
(2) the 3rd parties will have difficulty raising their own rights.

litigants cannot object as taxpayers--except when they are
(1) challenging a legislative exercise of the taxing and spending power
(2) as a violation of a constitutional limit on that power.

being a taxpayer generally does not have standing, that is just a generalized grievance... w/ the 2 exceptions

Claims for pre-enforcement review os statutes or regulations are unripe unless
(1) the issues are "fit" for judicial decision; &
generally, legal issues are fit while factual issues are not
(2)withholding decision will cause hardship
generally, financial hardship will suffice

Claims involving injuries that are no longer "live" are moot, unless they
(1) involve ongoing collateral injuries
(2) are capable of repetition yet evade review
(3) challenge conduct that has voluntarily ceased but may resume at any time; or
(4) were brought as class actions, and some members of the class retain "live" injuries

(A) Apportionment & Gerrymandering
▪ Baker; Vieth; Rucho v. Common Cause
(B) Congressional Self-Governance
▪ Powell v. McCormack
(C) Foreign Policy
▪ Goldwater v. Carter
(D) Impeachment
▪ Nixon v. Unites States

The US shall guarantee to every State in this Union a Republican form of government

(1) No state shall... deny to any person within its jurisdiction the equal protection of the laws
(5) The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

Guaranty Clause claims are PQ (colegrove)
Equal Protection Clause claims are not PQ when related to apportionment (Baker), but are PQ when related to partisan gerrymandering (Rucho)

(1) is textually committed to a political branch (ex: questions of impeachment are committed to Congress)
(2) exceeds judicial expertise (ex: questions of partisan gerrymandering exceed)
(3) would be imprudent (ex: entering certain debates that involve foregin policy may be imprudent)

Art II S 2
The President... shall have power, by and with the advice and consent of the Senate, to make treaties, provided 2/3 of the Senators present concur

Art I S 2 & 3
The house shall have the sole power of impeachment. The Senate shall have the sole power to try all impeachments
Art II S 4
The President, VP, and all civil officers of the US shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors
Nixon v. US
Political Question- court would not adjudicate case involving impeachment

Was not a PW in Powell

could potentially be PQs (Goldwater was inconclusive; Zivotofsky was not a PQ)

Was a PQ in Nixon

Preemption (Art VI; Supremacy Clause)
Dprmant Commerce Clause (Art 1 S 8)

“This Constitution, and the laws of the US which shall be made in pursuance thereof; and all treaties made . . . under the authority of the US, shall be the supreme law of the land[.]”

• Congress has expressly articulated an intention to preempt a state law
• Lorillard (2001) (state law is expressly preempted)

Conflict
Purpose
Field

Florida Avocado Growers (1963) (states could supplement federal standards, because dual compliance was possible)
If simultaneous compliance is not possible, then the federal law will govern

Pacific Gas (1983) (state law may not frustrate federal purpose)

AZ v. US (2012) (states may not legislate when federal government has occupied a given field)
Pervasive legislation may suggest congressional intent to occupy a field

Is the state law expressly or impliedly preempted by federal law?
If so, invalidate; if not, proceed to DCC

“The Congress shall have power to regulate commerce . . . among the
several states[.]”

are subject to rigorous scrutiny and are “virtually per se invalid” – i.e., invalid unless they adopt the least discriminatory means of achieving a legitimate local purpose.

Does the state law discriminate (facially, effectively, or purposely) against, or merely burden, interstate commerce?
If it discriminates, apply “rigorous scrutiny;”
If it burdens, apply the “balancing test.”

is yes to any of these 3 then go to rigorous scrutiny

If the law discriminates facially, purposely, or effectively against interstate commerce, it’s subject to rigorous scrutiny:
o Invalid, unless it is narrowly tailored to achieving legitimate local interests.
If the law merely burdens interstate commerce, it’s subject to the less rigorous balancing test:
o Valid, unless the burdens it imposes on interstate commerce are clearly excessive in relation to the benefits it confers on the locality.
o State laws that merely burden interstate commerce are subject to a balancing test – i.e., they are valid unless their burden on interstate commerce is clearly excessive in relation to their benefit to the locality

(1) is the law within COngress's power? Consider commerce, taxing and spending, necessary and proper
(2) If so, does it violate any other constitutional provision? Consider 10th amen (states), 1st- 8th amend (enumerated rights), 5th amend (DP unenumerated rights)

(1) assuming the states asserts its police power...
(2) is the law (a) preempted by any federal statute, or (b) does it violate any other constitutional provision? Consider Dormant Commercer Cl and 14th amend P&I and DP

1791 (Bill of Rights)
• 1st – “Congress shall make no law....”
• 5th – “Private property [shall not] be taken....”
1833 (Barron v. Baltimore)
• Bill of Rights does not directly apply to states
1868 (14th Amendment)
• Bill of Rights might indirectly apply to states via 14th Amendment’s P/I or DP Clauses
1908-1968 (Incorporation Debate)
• Parts of the Bill of Rights were judicially applied to states via 14th Amendment’s DP Clause
1968-Present (Current Law)
• Most of the Bill of Rights now applies to states via 14th Amendment’s DP Clause

All persons born or naturalized in the United States . . . are citizens of the United States and of the state wherein they reside.
(1) No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; (2) nor shall any state deprive any person of life, liberty, or property, without due process of law; (3) nor deny to any person w/in its jurisdiction the equal protection of the laws.

Privileges or Immunities: Narrow; Does not protect any rights not already protected prior to ratification of 14th Amendment;
Due Process: Narrow; Protects only procedural rights (not substantive right to practice trade);
Equal Protection: Narrow; Protects only former slaves and those similarly situated.

Privileges or Immunities:
o Protects right to travel among states (citing Slaughterhouse)
o Right to become a permanent resident of another state
o Right to have the same rights as residents of that state

Court settled on using the Due Process clause as the vehicle to incorporate the bill of rights to apply to the states
5th amend = federal
14th amend =state

Yes they do through the 14th amendment via Due Process Clause

No person shall . . . be deprived of life, liberty, or property, without due process of law[.]
Applies to federal government

No state shall . . . deprive any person of life, liberty, or property, without due process of law[.]
Applies to states and local government

1897-1936

No substantive due process
DP clauses protected procedural but not substantive rights (slaughter-house cases)

DP Clauses protected un-enumerated substantive economic rights
ex of economic rights: property and contract

Coppage (1915) (struck pro-union law)

Lochner (1905) (stuck max-hours law)
Muller (1908) (upheld max-hours law for women)
Adkins (1923) (struck min-wage law for women)

Weaver (1926) (struck law regulating bedding)
Nebbia (1934) (upheld law regulating milk)

• During the Lochner Era, the Court typically struck laws that burdened economic rights even where states argued they were meant to promote public welfare.
(If the question were asking about a federal (instead of state) minimum wage law, it could’ve been struck for being either beyond the commerce power or burdening economic rights)
• During the Lochner Era, economic rights were protected from state infringement through the 14th Amendment DP Clause

DP Clauses protect un-enumerated substantive privacy/family rights
ex: abortion & marraige
After the Lochner Era, the Court typically upheld economic regulations, so long as they were rationally related to promoting public welfare

Court invalidated federal labor laws as beyond commerce power (Hammer)

Court upheld federal labor laws as within commerce power (Jones & Laughlin)

Court invalidated state labor laws as burdening economic rights (Lochner)

Court upheld state labor laws as within state police power (West Coast Hotel)

• West Coast Hotel (1937) (upheld min wage law)
• Carolene Products (1938) (upheld Filled Milk Act)

Williamson (1955) (laws burdening economic interests receive “rational basis review” – i.e., are upheld so long as they rationally relate to legitimate interests)
• But see BMW (1996), State Farm (2003), and Philip Morris (2007)
(all vacated punitive damages awards)

(1) What right is burdened?
• Consider broad versus narrow framing.
• Consider the “substantiality of the interference.”
(2) Is the burdened right fundamental?
• “Deeply rooted in our nation’s history/traditions” and “implicit in the concept of ordered liberty”?
(3) If so, does the law survive strict scrutiny?
• “Narrowly tailored” law to achieve “compelling” interests?
o Often going to strike
(4) If not, does the law survive rational basis review?
• “Rationally related” to achieving “legitimate” interests?
o Often going to uphold
• Presume it’s valid before testing, deference given to legislature

Right to Marry
Right to Custody
Right to Cohabit
Right to Raise Children

Loving v. Virgina (1967): recognized right to marry as "fundamental"
Zablocki v. Redhail (1978): prevented anyone under an order to pay child
support from marrying unless they could show the child would not need government assistance (Significantly interfered with the right to marry, therefore subjected to strict scrutiny and struck down)
Bowen v. Owens (1986): Upheld law merely disincentivizing marriages
law burdens (substantially interferes with) the right to marry? = Strict scrutiny
law just disincentivizes marriage? = may or may not trigger heightened scrutiny
Obergefell v. Hodges (2015):held that states could not refuse to (1) issue same-sex marriage licenses or (2) recognize same-sex marriages validly entered in other states, becausendoing so violates the Fourteenth Amendment.

Promotes individual autonomy (Right to marry the person of your choice)
Dignifies the commitment of a couple
Protects children from instability and other harms
Marriage is a keystone of our social order

Stanley v. Illinois (1972): Parents have the fundamental right to raise their kids and preserve family integrity. State has to show a compelling reason with a narrowly tailored application to take that right away
Lehr v. Robertson (1983): declined to recognize rights of unwed biological (but not funtional) father
Michael H. v. Gerald (1989): declined to recognize rights of unwed biological/ funtional father where mother was married to another

Belle Terre v. Boraas (1974): upheld ordinance limiting occupancy to relatives & two-person groups functioning as unit
Moore v. East Cleveland (1977): Right to live with extended family, that is a fundamental right deeply rooted in our history

Fit parents' decisions must be given special weight

Right to Procreate
Right to Contraception
Right to Abortion

Skinner v. Oklahoma (1942): described the right to procreate as "fundamental"

Griswold v. Connecticut (1965): struck law banning use of contraception as violating right of privacy that protects married couples in marital bedrooms
Eisenstadt v. Baird (1972): struck law banning distribution of contraception to unmarried individuals; recognized right to decide whether to bear or beget a child
Carey v. Population Services Int'l (1977): recognized right to distribution of contraception

Right to abortion is a negative right accessible only to those who can pay for abortions; Not a positive right that imposes any obligation on the state to fund abortions

Roe v. Wade (1973): right of privacy that include the right to abortion in the 14th amendment's Due Process Clause; state can only regulate 2nd and 3rd trimester
Planned Parenthood v. Casey (1992):
Pre-Viability (1-12 weeks)
State may not impose undue burden (i.e., act with purpose/effect of placing substantial obstacle in path to abortion).
Post-Viability (13-26 weeks)
State may ban abortion, but must provide exceptions to protect woman’s life and
health (same as in Roe).

Maher, Beal, Poelker (1977): States may deny funding for non-therapeutic abortions (while providing funding for childbirth) without burdening right to abortion
Harris v. McRae (1980): Federal gov't may deny funding for non-therapeutic & even some therapeutic abortions w/o burdening right to abortion

Planned Parenthood v. Danforth (1976): State may not impose unqualified spousal or parental consent requirments
Bellotti v. Baird (1979): State may impose parental consent requirment if judicial bypass is available as alternative
Planned Parenthood v. Casey (1992): State may not impose even qualifies spousal notice requirment

right to private consensual adult sex

What right is burdened?
• Homosexual sodomy.
Is the right fundamental?
• No, it’s not deeply rooted in history and tradition.
What level of review?
• Rational basis.
Does the statute survive?
• Yes, it’s rationally related to the state’s legitimate interest in morality.

What right is burdened?
• Private consensual sex; Personal relationships; Personal autonomy; Etc?
Is the right fundamental?
• Court does not expressly ask or answer question.
What level of review?
• Maybe rational basis?
Does the statute survive?
• No, it’s invalidated.
Lawrence focused on the rights of unmarried individuals to engage in private, consensual, sexual conduct.

What right is burdened?
Is the right fundamental?
What level of review is used?
Does the statute survive?
o Rational basis = looking for rational relationship to legit interest
o Strict Scrutiny = need narrowly tailored to achieve compelling interest

receive strict scrutiny (must be narrowly tailored to compelling interests)

(need only be rationally related to legitimate interests).

(1) Is the law within Congress's power? Consider: commerce, taxing & spending, necessary & proper
(2) If so, does it violate any other constitutional provision? Consider: 10th (states), 5th DP (unenumerated rights), 1st-8th (enumerated rights)

(1) Assuming the state asserts its police power...
(2) Is the law (a) preempted by any federal statute, or (b) in violation of any other constitutional provision? Consider: Dormant Commerce Cl., 14th (P/I (travel), 14th DP (incorporates most enumerated rights and protects some unenumerated rights)