CONSTITUTIONAL LAW OUTLINE
Unit 1: Separation of the Federal Powers
A. Formalistic v. Functionalistic
a. Formalistic: strictly what the Const. wants you to do
i. Adherence by each branch to do what the Constitution says it may do
ii. If it is not mentioned in the constitution, thus an amendment is necessary for it to be allowable (enumerated powers)
b. Functionalistic: Constitution should be adapted to help country work better
i. Fidelity to the distribution of powers
ii. If the constitution doesn’t say you can’t do it, then you can if its essential
B. Structure of the Constitution
a. Brief Document setting up three branches
i. Legislative (Art. I): Power to make law
ii. Executive (Art. II): Power to enforce law
iii. Judiciary (Art. III): Power to interpret constitution and declare laws unconstitutional
C. Article I: The Legislative Branch
a. Section 8: Main place to find Art. I powers
i. 18 Enumerated Powers
ii. “Necessary and Proper Clause
1. 18th allows power to carry out the other 17
iii. Main Clauses
1. Commerce Clause (§ 8 cl. 3)
2. Power to Tax/Spend
3. Power to Coin Money (§ 8 cl. 5)
b. 10th Amendment
i. Those powers not given to the Fed. Government, or not taken from States, then the powers belong to the States and the Individuals
c. 14th Amendment
i. The Bill of Rights specifies individual rights, but there is a fear that there are rights that are not included, so the Amendment is meant to say that the list of rights is not “exhaustive,” and there can be other rights that exists, but aren’t specified.”
D. Article II: The Executive Branch
a. Committed to preserving the government, the Constitution and the United States as a country
b. Protects individual rights
c. Commander in Chief
d. Foreign Affairs
e. Protecting the People
i. Constitution was a document “FOR THE PEOPLE”
E. Article III: The Judicial Branch
a. All judicial power vested in Supreme Court of US
b. Extends to all cases under the Constitution, laws of the US, treaties made
c. Legislature can expand or limit jurisdiction
d. Don’t’ have original jurisdiction over anything but Federal Cases
F. History
a. Articles of Confederation
i. States loosely bound in confederation to provide for defense
ii. States are autonomous
iii. Written document for the States
iv. Power in the States
v. Unify in times of war/provide for preservation of liberties/ general welfare of the country
b. States assemble to amend the Articles of Confederation
i. End up writing a completely new document
c. Constitution written for the people, not for the states
i. Malleable document (Open Ended)
ii. Can change with decline or social moors
iii. Written to preserve future of the country
iv. Judiciary Act was unconstitutional
1. Constitution divides courts power into original and appellate jurisdiction
2. By limiting its jurisdiction, it expanded its power
3. Art. III doesn’t say they have appellate jurisdiction
v. Legacy: Judicial Branch is the Ultimate Arbiter of the Constitution
vi. Marshall: “It is emphatically the province and duty of the judicial department to say what the law is.”
b. Martin v. Hunter’s Lessee
i. Instilled judicial review on State Law (Vertical Application)
ii. States have some prejudice and state interest may obstruct the regular administration of justice
c. Cohens v. Virginia
i. Two men trying to sell lottery tickets in VA in violation of VA law
ii. Court has the power to review cases from state courts
1. Can’t trust states to uphold federal rights
a. Judges will seek will of states over Fed
2. May have bias as states elect their judges
B. Constitutional Review
a. Six Modalities
i. Look at the Text of the Constitution
1. Break down the language as its written
2. Look at language of other amendments or text
ii. Historical Precedent (Other Drafts of the text)
