Constitutional Law Outline,
Professor David S. Cohen
Spring 2015
1. Methods of Constitutional Interpretation
a. Originalism: original intent, what framers intended to do; and original meaning: look at what was meant at the time as indication of what a reasonable person would have thought they were doing at the time
b. Textualism: Judges should protect values, rights, structures, etc., clearly stated in text of Constitution and nothing more
c. Traditionalism: ascertain meaning of provision and follow tradition; protect a right only if there was a tradition to recognize and protect that right
d. Living Constitution: Legal realist; looking to important principals of morality, equality, etc. that have changed with times
e. Process – based: Court’s role to create and enforce a fair democratic process; it is up to the people, not the court, to enforce substantive values
f. Minimalism: Court decides just the issues before it, and nothing more
2. Judicial Review
a. Source of Federal Judicial Power
i. Article III, Section 1: judicial power of US shall be vested in one SCOTUS and in such inferior Courts as the Congress may from time to time ordain and establish.
ii. Article III, Section 1: Limits jurisdiction of federal courts to:
1. Cases in law & equity arising under Constitution, Laws, or Treaties of US
2. Cases affecting ambassadors, public ministers, consuls
3. Cases of admiralty
4. Controversies to which US is a party
5. Controversies between 2 or more states
6. Cases between a state and citizens of another state
7. Cases between citizens of different states (diversity of citizenship)
b. Marbury v. Madison – Establishes principle of judicial review! Most important decision in US Conlaw. Marbury asked Court to enforce delivery of commissions for justices, thinking SCOTUS had original jurisdiction b/c of Judiciary Act of 1789, which expanded SCOTUS original jurisdiction to allow them to issue writs of mandamus. Court rejects this, says that there’s an enumerated list (Article III, Section 2, Clause 2) of when Supreme Court has original jurisdiction – if congress can change or expand it, it would make the list pointless! There would be no end to when they could have original jurisdiction.
i. Establishes power of judicial review à SCOTUS (and not Congress) has power to declare a Congressional statute or executive action unconstitutional if the Court thinks it violates the Constitution. Supreme Court has power to review acts of Congress that violate Constitution and if an act violates Constitution, it’s void!
ii. Reasoning – WHY? 5 reasons from court
1. Written limits meaningless without judicial review
2. Those who apply the law must determine its validity
3. Article III gives Court power to hear cases under Constitution
4. Judges take an oath of office to uphold Constitution
5. Article VI’s Supremacy Clause makes Constitution supreme over other statutes. – “supreme law of the land”
c. Martin v. Hunter’s Lessee – The U.S. Supreme Court has appellate jurisdiction over state court decisions involving federal law à SUPREMACY CLAUSE Constitution only creates Supreme Court – Congress creates inferior courts. Appellate jurisdiction would be meaningless if there were no other courts that Supreme Court could review. So state courts are source of cases that get appealed to SCt. Constitution makes no sense structurally if there is not jurisdiction over state courts.
d. Cohens v. Virginia – Cohen brothers sold D.C. lottery tickets in VA, violating state law. State authorities tried and convicted the Cohens, and then declared themselves to be the final arbiters of disputes between the states and the national government. Marshall argued that state laws and constitutions, when repugnant to the Constitution and federal laws, are “absolutely void.” Same reasons as Martin – court says you can review criminal cases even where state is a party – not just state civil decisions as VA tries to argue!
e. Takeaway for Judicial Review: Federal judiciary supreme over EVERYONE
i. Marbury – fed law and actions
ii. Martin – state supreme ct with civil decisions
iii. Cohens – state supreme ct with crim decisions
iv. NOW à can review constitutionality of EVERYTHING!
3. Federal Legislative Power
a. Congress and the States
i. Can Congress legislate on whatever it wants? NO! Congress’s powers are limited to what is prescribed in Constitution – Can act only with powers granted to it.
1. Article I, Section 1 –
a. “All legislative powers herein granted shall be vested in a Congress of the US, which shall consist of a Senate and House of Reps”
2. 10th Amendment
a. “The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
b. Ceiling or floor? If it’s not in the Constitution, it’s reserved for the states!
ii. Can states legislate on whatever they want? YES! As long as Constitution doesn’t prohibit it!
iii. Fed gov’t has limited power; states have general police power! FEDERALISM
iv. McCulloch v. Maryland – most important SCOTUS decision in US history defining scope of Congress’s powers and delineating the relationship between the federal gov’t and the states! Fed gov’t has power to incorporate bank AND state cannot tax bank – fed bank supreme over states).
1. Congress has not only the power itself that is enumerated, but also the incidentals necessary to carry it out – ex: opening a post office – not just the actual building, but delivering mail, preventing theft of mail, etc. (debate over meaning of “necessary”)
2. 4 steps to arrive at decision that Congress DOES have power to incorporate a national bank – reaffirmation of Marbury, because it shows that court has power to review decisions of Congress for constitutionality – court ultimate arbiter to decide if other branches of gov acted constitutionally
a. Past practices by other branches of gov indicate that bank is constitutional, we should not second guess them when they have acted based on need and history, etc. especially when ppl who drafted bank bill are same ones who wrote Constitution – presumption of Constitutionality.
b. MD says we’re a state, sovereign entity – MD thinks they can say no about bank and can tell fed gov what it can and cannot do – court says NO, that’s a complete misunderstanding, the PEOPLE created govt, gave fed govt its power, power comes from people NOT STATES! States subject to federal gov’t!!!
c. Marshall says silence on power doesn’t equal no power! Because there are IMPLIED POWERS
i. Don’t forget what a Constitution is meant to be: Not meant to be a legal code – just meant to be general, guiding principles. Therefore there must be implied powers. Congress can figure out HOW to exercise enumerated powers and if creating a bank is part of that, Congress gets to choose to do that! SEPARATE FROM NECESSARY AND PROPER CLAUSE!!!! INDEPENDENT OF NECESSARY AND PROPER CLAUSE!!!!
d. Necessary and Proper Clause – “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” à Congress can do whatever is necessary and proper to carry out its ENUMERATED POWERS.
i. Marshall rejects absolute necessity argument – Marshall is giving Congress authority to figure out the means through which it carries out its powers!
ii. So, is Congress totally
ned (CURRENT)
a. NLRB v. Jones & Laughlin Steel Corp. (1937) – National Labor Relations Act prevents unfair labor practices affecting commerce – Jones charged with discriminating against union workers (Labor Board argued could regulate because materials drawn in from other states, transformed in PA, and then pumped out to whole nation). Under the Commerce Clause, can Congress enact a labor law where the goods are in interstate commerce? Throws out direct/indirect test – defines “affecting commerce” as in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. Good law – overturns Carter Coal and holds that commerce includes production/manufacture.
b. Wickard v. Filburn – aggregation principle
5. 10th Amendment Redefined (CURRENT)
a. U.S. v. Darby (1941) – Darby is charged with manufacturing raw materials and shipping outside state without conforming to fair wage laws. The 10th Amendment is but a truism (no longer an independent limit on Congress) that all is retained which has not been surrendered. Good law à only exception to 10A being a truism is in commandeering issues.
6. Civil Rights Cases (CURRENT)
a. Heart of Atlanta Motel, Inc. v. U.S. (1964) – Hotel solicits patrons from outside state through national advertising, and refuses to rent to African Americans. Whether Congress under the Commerce Clause has the power to pass the Civil Rights Act of 1964 even when it impacts local businesses? Congress made it clear that discrimination by race places a high burden upon interstate commerce; that Congress was legislating against moral wrongs in many of these areas renders its enactments no less valid. Congress passes CRA of 1964 under Commerce Power!
i. Hodel v Indiana- REGULATORY LAWS Court upheld a federal law that regulated strip mining and required reclamation of strip-mined land. The court found that this law was within the scope of Congress’s Commerce Clause authority and described this power in expansive terms. Court said “A court may invalidate legislation enacted under the CC only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends.”
ii. Perez v Us. CRIMINAL LAWSEvidnece showing petitioner was a loan shark who used the threat of violence as methods of collection. Falls under third prong of Lopez-COERCISION IS PRESENT” Court can enact criminal laws. Dissent says only if all three prongs are present. (stewart- D)
b. Katzenbach v. McClung, Sr. & McClung, Jr. (1964) – Ollie’s Barbecue is family-owned restaurant that only provides take-out service for whites, but buys meat from out of state. Whether Congress under the Commerce Clause has the power to pass the Civil Rights Act of 1964 even when it impacts local businesses? The volume of food purchased by Ollie’s is insignificant in isolation, but adds up in the aggregate to exert a substantial economic effect on interstate commerce. As long as Congress is acting rationally in what it thinks impacts interstate commerce, court will defer. CRA of 1964!!!
