[1] Fundamental right=
Ordered Liberty=
Life or Liberty or property interest
(if essential to ordered liberty then fundamental right)
(if a life or liberty or property interest then fundamental right)
does the u.s. constitution apply extraterritoriality?
Yes, if it is a fundamental right [1]
if the u.s. constitution applies overseas it only does so
a) — proportionally to federal sovereign power.
— possibly there are more than fundamental rights for citizens than non citizens
— but japanese murder case, zahouri
does the u.s. constitution apply to the federated states?
it’s the same question!
the federal constitution applies to the states if the right is fundamental[1] then it is incorporated onto the states via the 14th amendment<
If it is a fundamental right then it is part fof substantive due process.
If it is part of substantive due process then we resolve conflicts between the federal power and the individual right via proportionality.
May federal power be implied? Federal powers may be implied where they are necessary means to enumerated ends. This is also a form of proportionality analysis. (Means-ends rational review). There is no strict scrutiny (=proportionality in the narrower sense) however.
Equal protection of law also implies proportionality, but if the person is a member of a suspect class then it is also strict scrutiny (=proportionality in the narrower sense)
——–>Substantive du process —-> proportionality <–Equal protection
Implied federal powes——> proportionality <—federal versus state
========
Are private parties bound by the federal constitution?
They are if they acted under color of law
color of law —> State action —> equal protection—>proportionality
—> due process——–>proportionality
====
we can structure rights as
vested or executory or hottory
positive rights to versus negative freedsom from
presumptions
substantive or procedural