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Constitutional Law I
Rutgers University, Newark School of Law
Ides, Allan

I. Historical background and Contemporary Themes 2
A. Why a Constitution? 2
B. History of Creation 2
C. How Should the Constitution be interpreted? 3
II. The Federal Judicial Power 4
A. Introduction – Art III 4
B. The Authority for Judicial Review 4
C. Standing 6
D. The Political Doctrine 9
E. Congressional Control of Federal Court Jurisdiction 10
III. The Federal Legislative Power 10
A. The doctrine of limited federal legislative authority 10
B. McCulloch v. Maryland (1819) 10
C. Commerce Power 11
D. Other Congressional Powers under Art I and Art IV 14
E. Congress’s Powers Under Reconstruction Era Amendments (13th, 14th, & 15th) 14
F. The Tenth Amendment and Federalism as a Limit on Congressional Authority 16
G. Unconstitutionality of the Legislative veto 18
IV. The Federal Executive Power 18
A. Express and Inherent Presidential Powers 18
B. Appointment and Removal Power 19
C. Executive Privilege 20
D. Presidential Immunity to Criminal and Civil Suits 20
E. Pardon Power 20
F. Foreign Policy 20
V. Limits on State Regulatory and Taxing Power: Dormant commerce clause 21
A. def: state and local laws are unconstitutional if they place an undue burden on interstate commerce 21
B. Black letter law: weigh the state interest in regulating its local affairs against the national interest in uniformity and in an integrated national economy. 21
C. Should there be a Dormant Commerce clause? 22
D. Cases Prior to 1938 22
E. Current Black Letter Law – ways in which a state may violate DCC 23
VI. The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties 23
A. The Application of the Bill of Rights to the States 23
VII. Procedural Due Process (may not have any cases?) 24
VIII. Economic Liberties 24
A. Introduction 24
B. Economic Substantive Due Process 24
C. The Contracts Clause 24
IX. Equal Protection 25
A. Introduction 25
B. Rational Basis Test 27
C. Classifications based on race and national origin 29
Constitutional Law

I. Historical background and Contemporary Themes
A. Why a Constitution?
1. difficult to change
(a) prevents tyranny of the majority by protecting the rights of the minority
(b) like Ulysses and the sirens (but is past binding future generations, not the same person)
2. implications
(a) anti-majoritiarian document
(b) appraised as whether it succeeded in restraining the majority and protecting the minority
(c) Constitutional interpretation problem – if way of protecting long-term values from short-term passions, how do you interpret?
B. History of Creation
1. Articles of Confederation
(a) No judiciary; no execution
(b) Problems with trade and national ability to deal with problems
2. Constitutional Convention
(a) Decided to abandon Articles
(b) Virginia plan – strong national government, regulating individuals
(c) NJ plan – all states with equal representation. Supreme Court as only federal court
3. Ratification process
(a) Anti-federalists – states unimportant; no individual rights
(b) Federalist papers – defense of Constitution by Hamilton, Madison, and Jay
4. Addition of the Bill of Rights
(a) Madison feared judges would consider themselves guardians of rights and impede other branches
5. Amendments
(a) 4 overrule court decisions
(1) 11th – states cannot be sued in federal court by citizens of another state or country
(2) 14th – overturned Dred Scott
(3) 16th – personal income tax
(4) 26th – 18 and over to vote
(b) Some correct problems in original constitution
(1) 12th – changed vice president as runner up
(2) 25th – procedure to choose a new vice president
(3) 20th – death of President-elect
(c) Reflect changes in social attitude
(1) 13th – no slavery
(2) 14th – rights of newly freed slaves
(3) 15th – right to vote not based on race
(d) change and expand the electoral process
(1) 17th – popular election of senators
(2) 19th – women’s sufferage
(3) 23rd – DC casts votes in electoral college
(4) 24th – no poll tax
(5) 22nd – 2 terms maximum for president (reaction to Roosevelt)
6. 14th amendment was the most important
(a) applies rights to states
(b) questionable procedurally
C. How Should the Constitution be interpreted?
1. Inevitable need for Interpretation
(a) Constitution does not expressly consider many issues because it is just a blueprint for government
(b) Constitution uses open-textured language
(c) Government justifications may be sufficient to interfere with private right (shouting fire in a crowded theatre).
2. the debate between originalism and nonoriginalism
(a) originalists – amendment is the only means of evolution of the Constitution
(b) nonoriginalists – provisions evolve by interpretation
3. range of alternatives
(a) originalism
(1) strict original intent – follow literal text and specific intent
(2) moderate – adopters’ general purposes
(3) original meaning (Scalia) – look to historical practices of the time
(b) nonoriginalism
(1) tradition – specific or general
(2) processes of government – can deviate from original intent only when following particiapation-oriented approach (Ely)
(3) natural law – court should discern and implement
4. basic argument for originalism
(a) nature of interpreting a document
(b) desireable to constrain power of unelected judges
(1) counterarguments:
(i) definition of democracy – framers distrusted people; Constitution is antimajoritarian
(ii) reconcile judicial review with majority rule:
1. Ely censures majority rule by protecting processes);
2. Perry (okay if Congress can check Supreme Court)
(iii) Original judicial review is inconsistent with majority rule – all judicial review involves unelected judges
1. consent to Constitution
2. no one alive consented
5. basic argument for nonoriginalism
(a) desirable to evolve by interpretation (too difficult to get amendments passed)
(b) not an unambiguous, knowable framer’s intent
(1) no collective intentions (Dworkin)
(2) historical materials too incomplete
(c) framers did not intend intentionalism
(d) counterarguments
(1) improperly empowers judges
(2) if intent cannot be ascertained, political process should determine
(3) no evidence the framers intended otherwise
6. Who should interpret the Constitution?
(a) Approach 1: No Authoritative Interpreter
(1) Support in early U.S. history
(2) Each branch decides for itself and does not defer responsibility
(b) Approach 2: Each Authoritative in Certain Areas
(1) Institution allocates authority
(2) Current system? Judiciary defers on political issues
(c) Approach 3: Judiciary
(1) Resolves disputes until overturned by amendment
(i) Marbury v. Madison (ex.)
(2) If construed narrowly, could be consistent with other two approaches
(3) Better insulated from the political process
II. The Federal Judicial Power
A. Introduction – Art III
1. creates a federal judiciary system
2. vests the judicial power “in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish
(a) compromise between Madison and James Wilson (lower courts are an unnecessary expense and a likely intrusion on the sovereignty of states)
3. ensures independence of the federal judiciary by according all federal judges life tenure
4. defines in terms of nine categories of cases and controversies (2 categories)
(a) authority to vindicate and enforce the powers of the federal government
(1) ex. authority to hear all cases in which the US is a party
(b) serve as an interstate umpiring function, resolving disputes between states and their citizens
5. allocation of judicial power between Supreme Court and the lower federal courts.
6. prescribes that the trial of all crimes except impeachment shall be by jury
7. treason shall consist only in “levying war” against the United States or giving aid or comfort to the enemy, and you must have 2 witnesses
B. The Authority for Judicial Review
1. Marbury v. Madison (1803)
(a) Facts: Organic Act of D.C. allowed President to appoint 42

itizen suit against D under the Clean Water Act, charging Laidlaw with numerous violations of the mercury limits. P alleged that several of its member no longer went to the river because it looked and smelled polluted.
(ii) Held: P had standing to sue.
1. distinguished from Lujan b/c Ps in this case asserted D’s discharges directly affected Ps’ recreational, aesthetic, and economic interests
2. irrelevant that there was no demonstrated proof of harm to the environment.
3. “all civil penalties have some deterrent effect” so there is Redressability (what about Allen???)
(c) What injuries are sufficient?
(1) Injuries to Common Law Rights
(i) Property, arising out of a contract, one protected against tortious invasion
(2) Injuries to Constitutional Rights
(i) Which provisions bestow rights?
1. discrimination or violation of an individual liberty – standing
2. Prevent violation of a constitutional provision – no standing
(ii) What facts are sufficient to establish injury? Case by case
(3) Injuries to Statutory Rights
(i) “Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute.” Warth v. Seldin
(ii) Lujan v. Defenders of Wildlife (1992)
1. Facts: Ps brought suit under a statute that provided that “any person may commence a civil suit” to enjoin a violation of the Endangered Species Act. Ps say that they have traveled to the area in the past and will travel there again.
2. Held: Ps lack standing because they have not shown the requisite actual or imminent harm. Also, Congress cannot confer standing upon an undifferentiated public”
a. Transfer from the president to the courts the duty that the laws be faithfully executed.
(4) Other Injuries Sufficient for standing
(i) Claim of aesthetic or environmental hart is sufficient
(ii) “desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest” Lujan
(iii) no standing to challenge IRS’s tax exemptions for private schools that discriminated on the basis of race where P claimed they were stigmatized by government’s policy. Allen v. Wright
3. Causation and Redressability
(a) Allen v. Wright (1984) O’Connor
(1) facts: Ps, African-American parents, challenged IRS’s policy of providing tax exemptions to private schools that discriminated on the basis of race. Ps alleged they were stigmatized and it impaired their right to have their schools desegregated.
(2) held: No standing
(i) stigmatization – only accords standing to “persons who are personally denied equal treatment”
(ii) right to integrated school – judicially cognizable right, but there is no causal link to the government (i.e. getting rid of the tax exemption wouldn’t guarantee desegregation of schools)
(3) Stevens (dissent): elementary economics, if you get rid of the incentive, less people will go to the school and the school will have incentive to desegregate.
(b) Criticism and Defenses of the Requirement
(1) improper determination to make on the basis of pleadings
(i) Redressability is a factual question (s/b considered at