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Constitutional Law I
Rutgers University, Newark School of Law
Pope, James Gray

Constitutional Law


Spring 2011


1) Distinct Features of the 1775 Constitution

a) “We the people” (an assumption of Popular Sovereignty)

i) Revolutionary Idea → popular sovereignty

ii) Viewed as insanity from a more traditional view of sovereignty

iii) Comes from the civil republican theory tradition

(1) Originated in City-States

b) Federalism

i) One of the most compelling models of federalism to this day

ii) Both the State and Federal governments get their power from the people

iii) Under the Constitution the National and State governments are the people’s agents

c) Separation of Powers

i) Physical Separation of Powers

(1) Article I → Powers of Congress

(2) Article II → Executive Powers

(3) Article III → Judicial Powers

ii) The checks on other branches

(1) Powers interweave in order to provide checks and balances

d) Slavery

i) United States was created as a slave nation

ii) Many of the Constitutions provisions were shaped by slavery

(1) One of the most apparent was the fugitive slave provision

(2) Did not mandate slavery but provided for its preservation

(3) The ⅗ Clause:

(a) Seen by free states as an unfair advantage for Southern states → increased population for the purpose of congressional representation

e) Bill of Rights

i) A set of affirmative rights

f) Civic Republican Tradition

i) Civic Virtue

2) Constitutional Moments (Ackerman)

a) The Founding Generation – the framing of the original Constitutions and the Bill of Rights, The Supreme Court’s initial assertion of judicial review in Marbury v. Madison

i) The initial constitutional order was established

(1) Founders (illegally) ratified the Constitution

(2) Revolutionary moment

ii) Political Activity was very high

(1) Shea’s Rebellion

(2) The Federalist Papers – Used as a resource in judicial opinions, and as a guide to interpreting the Constitution

(a) Evidence of what was intended or meant by the writers of the constitution

(b) Useful content

b) The Civil War and Reconstruction – bloody struggles ultimately yield the Reconstruction amendments

i) Fundamental change in the amount of power the federal government wields.

(1) Congress emerged as a very powerful branch

(a) Accomplished political objectives over the conservative objections of the Johnson Whitehouse

(2) Eliminated one of the major themes of the original constitutional order (slavery)

(3) 13th, 14th, and 15th Amendments

c) The New Deal (As consolidated during WWII) – the 1930’s and the dramatic confrontation between the New Deal and the Old Court that ends in the constitutional triumph of the activist welfare state

i) Very few Constitutional textual changes

ii) The rise of administrative government (a massive change in constitutional powers)

(1) Accomplished over the conservative objections of the SCOTUS

iii) Changed the focus of individual rights away from property rights and toward individual freedoms

3) Types of Constitutional Movements – a normative mass movement

a) Economic

b) Intellectual

c) Social

4) Supreme Court Eras

a) The Marshal Court

i) Established Judicial Review:

(1) The Constitution does not explicitly state that the Supreme Court may determine the constitutionality of acts of other branches of government. However, judicial review of other branches of the federal government was established in Marbury v. Madison

(2) Constitution is “law” and it is the province and duty of the judiciary to declare what the law is.

ii) M’Colic – affirmed Congress’s power to establish a National Bank

b) The Taney Court

i) Instrumentalist and pragmatic – supported doctrines that fostered economic growth and national unity

(1) Charles River Bridge Case → States rights, promoted economic development

ii) Dred Scott → “from a political as well as moral point of view, the greatest disaster in the history of the court”

c) The Lochner Era



1) Text Based Analysis

a) Contemporary definitions

2) Original Meaning

a) Contemporary (pre-ratification) history / commentaries

b) Change Argument:

i) Either the facts have changed, or the understanding of the facts has changed in ways that if the text is applied today, leads to a different result.

c) Post-ratification commentaries are not as influential and are disfavored among many scholars (not necessarily by Pope)

3) Structure

a) Arguments about how the government is set up and functions under the Constitution

4) Precedent

a) Judicial precedent from (preferably) high authority.

b) Lower court decisions on point and with in-depth discussion are acceptable.

i) May also be a tradition argument

5) Tradition

a) Evidence too far removed in time from ratification to be used under an original meaning analysis.

b) Original Meaning and Tradition will often overlap. Use Original Meaning (higher on the methods hierarchy)

6) Consensus

7) Natural Law

8) Consequences


1) The Fourteenth Amendment and Race: 1865-1912

a) The most important legal development in Reconstruction after the Civil War was the adoption of the Fourteenth Amendment

i) A joint committee of fifteen was tasked with drafting the amendment to protect the civil and political rights of the slaves freed by the thirteenth amendment

ii) Amendment was controversial

(1) Opposed by President Johnson, many prominent Republicans, and most Dems.

(a) Was adopted by an unrepresentative congress

(b) Compelled equal treatment of African Americans, Native Americans, and the “Mongol Race”

(c) Centralized power by affording national constitutional rights directly against the states, ∴ changing the essential federalism of the Constitution

(2) Took over two years to obtain approval and two states attempted to revoke their approval.

iii) Followed by the 15th Amendment (1870) → guaranteed former slaves the right to vote

b) After Federal Troops were withdrawn from the South → Jim Crow, and the federal courts retreated from the broad rhetoric of the ratification debates

c) T

gan and Allen:

i) Terrible labor shortage

(1) No gold → tobacco farming → indentured (bound) servants, and bound African American servants (not permanent slaves)

(2) Race is not the main distinction

ii) Bacon’s Rebellion → promises freedom to bound laborers

(1) Amasses a large integrated army

(2) A series of race laws are passed after the rebellion was crushed

(a) 1680 – Negro or other slaves shall not lif up his hand to any Christian

(i) Blacks may not defend themselves against whites

(ii) “Negro or other slave” – laws were passed making blacks presumed slaves, while whites were presumed free

(b) 1705 – expropriated all black slave property and gave it to white laborers

iii) Revolutionary Era

(1) Democratic revolution → push back against slavery in the North

(2) Lead to fear among slave owners

(3) Constitution compromise protects slavery

iv) Era of Civil War

(1) Generations have grown up in a society in which blacks have no rights, are presumptive slaves

(2) White laborers do not see slaves as political allies

(a) They were strike breakers, and could not vote

(3) Blacks served in large numbers in the Union Army

(a) Lead to a change of attitudes

(b) After the 15th Amendment guaranteed the right to vote → freed slaves became political allies of white labor class

v) The End of Reconstruction

(1) The SCOTUS was the vehicle that allowed the walk back from reconstruction


1) The Power of Judicial Review

a) Marbury v. Madison, pg. 92

i) The Courts appellate jurisdiction includes the power to hear appeals regarding the constitutionality of acts of other branches of the federal government

ii) Congress may neither restrict nor enlarge the SCOTUS’s original jurisdiction

iii) Marbury decision = passive.

(1) Refusing to take an action that is unconstitutional

iv) Active Court: ordering another member of the government under the oath to uphold the constitution to follow the court’s interpretation of the constitution

2) The Courts Supremacy in Constitutional Interpretation

a) Cooper v. Aaron, pg. 101

i) The court’s interpretation of the Constitution is the final word and is dispositive

ii) The federal judiciary is supreme in the exposition of the law of the Constitution

3) After Brown: Evaluation and Critique

a) Remedies – “Desegregation” – “Unitary School System” in the South

i) Goss (1963) – one way race based transfer system is not constitutional