Constitutional Law I Outline

Constitutional Law 1_Schwinn_Spring_2011

I. THE NATION AND THE STATES IN THE FEDERAL SYSTEM (CH 2-Bank Debates)

a. BASIC CONGRESSIONAL AUTHORITY

i. Sources of congressional authority: The most obvious source of powers is Article I, section 8 (starting point). The doctrine of implied powers allows Congress to exercise authority that is implied by these specific grants of power.

1. The powers of the fed government comes from Article 1, Section 8 plus the necessary and proper clause and/or other sources

a. E.g. The power to collect taxes – etc.

2. General Welfare Clause( Article 1, Section 8, Clause 1)

a. “Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the US; all duties, imposts, and excises shall be uniform throughout the US”

i. Commonly referred to as the taxing and spending clause…Congress gets to spend in the general welfare and gets to decide what the general welfare is; This is an expansive view

3. Taxing clause, 16th A…congress can tax at anytime, direct taxation of income. Derived from the tax collection problems of the articles of confederation.

4. Necessary and Proper Clause (Article 1 Sec 8 Clause 18)

a. Allows Congress to do anything necessary and proper to achieve articulated ends in the Const….expands the enumerated powers

b. Supplements other articulated powers, never acts alone

c. Makes any appropriate means Congress uses to attain legitimate ends (articulated in the C) within the scope of the constitution and not prohibited by it, constitutional (expansive powers, but congress gets to decide how)

d. Gives Congress unarticulated powers

e. Never stands alone to give congress the power to act…this clause is always supplemented w/ another

ii. Whenever Congress acts, ask 2 questions:

1. 1. What’s the constitutional authority for the action?

2. 2. Are there any restrictions on that authority?

Authorities

Restrictions

Commerce Clause

10th Amendment, anti commandeering principle

Civil War Amendments (13th, 14th, 15th Amendments)

11th Amendment

Spending Clause (or General Welfare Clause)

13th, 14th, 15th Amendments

Taxing Clause

Bill of Rights

Treaty Clause

Substantive Due Process

b. BASIC CONSTITUTIONAL INTERPRETATION

i. Textual Analysis – interpretation based on the text and its meaning…Look at the language, what does it say,

1. Look at original intent or original meaning; what did the framers intend versus what did the words mean at the time of the framing (originalism- focus point of constitutional interpretation today – looks at the original meaning at the time for framing)

a. Original Intent– ask what was the intent of the framers what did they intend, for the main body and their first 10 amendments; for the 13th, 14th, and 15th amendments look at the intent of those framers

b. Original meaning – OBJECTIVE: the origin of the phrases at the time of the framing; what does commerce mean at the time of the framing;

i. ex. a dictionary def. at the time of the framing; there are different definitions at different times of amendments.

c. Original understanding-SUBJECTIVE: Original understanding of the language of the constitution…Common understanding of the word at the time of framing, asw ell as those discarded…look to sources of the time that used the language

1. Ex. Ratification committees of the time…what did the ratifiers mean

2. Look to where the clause is in the document

3. What is around the clause

4. Look at the text in combination with other structural sources in the condition and look at other articles within the text

ii. 2. Structural – interpretation based on the structure of the Constitution

1. The nature of the national government, a sovereign – enumerated powers or unremunerated powers that are the means to the end of an enumerated powers

a. Ex. The national bank – congress has the enumerated power to tax for and congress can charter a bank(unremunerated) as the means of those end (taxing) – and this is in the nature of a sovereign

2. What does sovereign do?….Those things that are enumerated And those things that are a means to an end

a. Ex: By using the SUSPENSION CLAUSE Congress has the power to take away habeas corpus as long as it is within the bounds of the constitution, especially due process, and equal protection

iii. 3. Precedent as practice – interpretation based on precedent of the Supreme Court (and others?) Look at PAST PRACTICES IN GENERAL IN SOCIETY (ie the way things have been done)

1. 2 types: 1) Judicial…supreme crt decisions AND 2) Practice as precedent…look at general practices in society

a. ex of P as P…congress looks to first chartered fed bank to say charter of second bank is constitutional

b. Looks At:

i. Supreme Court Decisions and the practice of Stare Decisis – we honor them and give them deference

ii. State Court Decisions in interpreting the contemporary meaning of the Constitution. States may have adopted practices that the Supreme Court can learn from.

iii. What is the historical practice of the Executive or Legislature? What have these braches been doing as a matter of practice? Or how has the Executive or Legislature interpreted the issue themselves?

iv. 4. Historical Analysis- interpretation based on how we’ve done things in the past

1. The purpose of the clause –what was the clause supposed to achieve;

a. Ex. the contract clause – it was enacted for a particular purpose, that was, to pr