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Constitutional Law I
Rutgers University, Newark School of Law
Gonzalez, Carlos





A. Partial open book – your own work product. Case book and outline. 3hrs. 1 essay, and multiple choice questions.

1. Essay

a) Areas, rules, doctrine we have delt with but not exact hypo or case fact pattern.

b) Connect cases within the doctrine.

2. Multiple Choice

a) More oriented to straight knowlege

b) Hit all chapters

c) Know the doctrine

3. What is Gonzo is looking for

a) What you would do if you were practicing law in a professional situtation.

b) Complete analysis and no extraneous info that is not directly related to the question.

(1) Ex: The standing quesion – In the sample the bulk of the essay is the injury and causation and redressability should be delt with quickly if they are less controversial.

(2) Leave out irrelevancies!!

c) Make it professionally relevant. Point out where there is doctrinal clarity but the cases are all over the place.

II. Introduction to the U.S. Constitution:

A. Historical Setting, pp. 1-10.

1. Organization of the Constitution, pp 10-13.

2. Interpreting the Constitution, pp. 13-42.

a) Originalism – is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws (which is the realm of the legislative branch) but only to uphold them. Today, originalism is popular among political conservatives in the U.S., and is most prominently associated with Antonin Scalia, Clarence Thomas and Robert Bork. However, some liberals, have also subscribed to the theory.

b) Originalism is a family of theories, principally:

(1) The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it.

(2) The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justice Scalia, are associated.

c) Non-Originalism – Some originalism but there is room for expansion.

3. District of Columbia v Heller 554 U.S. 570 (2008) “Handgun Case” (2nd Amendment)

a) Facts:For the first time in seventy years, the Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws. After the District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked, a group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The federal trial court in D.C. held that the Second Amendment applies only to militias, such as the National Guard, and not to private gun ownership.

(1) D.C. Cir Ct. disagreed, voting that the 2nd Am. does in fact protect private gun owners such as plaintiffs. Petitioners agree with the trial court’s decision that the Second Amendment applies only to militias, and further argue that (a) the Second Amendment should not apply to D.C. because it is a federal enclave rather than a state, and (b) that the D.C. legislation merely regulates, rather than prohibits, gun ownership. Respondents, although disagreeing on the merits, have also urged the Court to review the case in order to clearly define the relationship between federal gun control laws and the Second Amendment.

(2) Question: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?

(3) Conclusion: Yes. In a 5-4 decision, the Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self- defense within the home. The Court based its holding on the text of the Second Amendment, as well as applicable language in state constitutions adopted soon after the Second Amendment. Justice Antonin Scalia delivered the opinion of the Court.

(4) Dissent: argued that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful. Justice Breyer agreed with Stevens’ argument but also stated that even if possession were to be allowed for other reasons, any law regulating the use of firearms would have to be “unreasonable or inappropriate” to violate the Second Amendment. In Breyer’s view, the D.C. laws at issue in this case were both reasonable and appropriate.

(5) Class Note: Understanding issue. The court almost outlawed guns.

III. Constitutional Division and Allocation of Power. Federalism and Separation of Powers.

A. Article III and the Federal Judicial Power

1. Judicial Power and Judicial Review, pp. 45-67.

a) Original Jurisdiction and Appellate Jurisdiction

(1) Jurisdiction Of the Supreme Court

(a) Original Jurisdiction→ The Supreme Court’s Original (trial) jurisdiction is derived from Article III, § 2 and is limited mainly to controversies between two or more states.

(2) Appellate Jurisdiction→ Article III, Section 2 also gives the Supreme Court appellate jurisdiction over the listed above or beyond § 2:

(a) The Power of Judicial Review→ Judicial Review had evolved from Supreme Court Decisions and allows the court to hold acts of other branches of government unconstitutional, to hold state statutes and executive action unconstitutional, and to review state court judgment.

(b) Methods for Invoking Appellate Jurisdiction→ Supreme Court review may be had either by appeal (mandatory) or certiorari (discretionary). However, mandatory appeal jurisdiction is very limited and so the Court’s appellate jurisdiction is almost entirely by certiorari.

(c) Limitations on Statutory Regulation→ Ex Parte McCardle has been interpreted as allowing Congress full power, subject to the language of Article III, to limit the Supreme Court’s appellate jurisdiction.

2. Marbury v. Madison (1803) – It is the Supreme Court and not Congress who has the authority and duty to declare a congressional statute unconstitutional if the court thinks it violates the Constitution.

a) Marbury, was designated as a justice of the peace in DC by Congress in the last days of Adams’s presidency, but the appointments were never inalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the SC. Holding: the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” When the Constitution conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court’s power of judicial review.

b) Martin v Hunter Lessee (1816) – The Court rejected the claim that Virginia and the national government were equal sovereigns. Reasoning from the Constitution, Justice Story affirmed the Court’s power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.

(1) Together Marbury and Martin stand for the proposition that Court has the power of judicial review, which it can exercise in cases arising in state and federal court and in cases involving the constitutionality of state or federal law.

c) Cohens v, Virginia (1821) – Cohens argue that they are not Virginians they are from DC. They said a Federal Statute (valid in DC) had allowed the lottery tickets to be sold. They walk into Virginia court saying Federal Law trumps state law. It gets litigated up through the Supreme Court. Court held that the Supreme Court had jurisdiction to review state criminal proceedings. Chief Justice Marshall wrote that the Court was bound to hear all cases that involved constitutional questions, and that this jurisdiction was not dependent on the identity of the parties in the cases. Marshall argued that state laws and constitutions, when repugnant to the Constitution and federal laws, were “absolutely void.” After establishing the Court’s jurisdiction, Marshall declared the lottery ordinance a local matter and concluded that the Virginia court was correct to fine the Cohens brothers for violating Virginia law.

B. The Requirement of “Case” or “Controversy”

1. Muskrat v. United States:

2. Advisory Opinions – Arises out of article III that gives the court power to try controversies and Advisory Opinions are not cases so it’s unconstitutional.A cases must have the following elements otherwise this is an advisory opinion.

a) Actual Dispute – U.S. v. Johnson – The defendant set up a suit and paid the plaintiff the point being to get an answer.

b) Litigates must be adverse – Muskrat v. U.S.

c) A likelihood that a favorable ruling would have some effect

(1) Hayberance The cases wherein there was a request for the courts to issue an advisory opinion could

(2) Plaut v. Spendthrift Farm, Inc. – A plaintiff had sued in fed ct to get relief under federa

ubjected to a choke hold again.

f) Lujan v. Defender of Wildlife (1991) – “actual or imminent” injuries to particular respondent

(1) Facts of the Case: The Endangered Species Act of 1973 (S7(a)(2)) required federal agencies to consult with the Secretary of the Interior to ensure that any authorized actions did not jeopardize endangered or threatened species or critically destroy natural habitats. A 1986 amendment to the act limited it scope to actions in the United States or on the high seas. Defenders of Wildlife and other organizations dedicated to wildlife conservation filed an action seeking a declaratory judgment that the new amendment erred by providing for a geographic limit on the original law.

(2) Question: Do the respondents have standing to sue?

(3) Conclusion: No. Even if the Court were to assume that the agency-funded projects at issue threatened listed species, there was no proof that these actions would produce “actual or imminent” injuries to particular respondents who might some day wish to visit the foreign countries in question. The Court disregarded the proposed theory of “ecosystem nexus” which claimed that any person who used any part of of a “contiguous ecosystem” adversed affected by a funded activity had standing to sue.

D. Ripeness and Mootness

E. The Political Question Doctrine

1. Baker v Carr 396 U.S. 186 (1962) – “Legislative District lines in Tenn”

a) Facts: Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state’s General Assembly was virtually ignored. Baker’s suit detailed how Tennessee’s reapportionment efforts ignored significant economic growth and population shifts within the state.

b) Question: Did the Supreme Court have jurisdiction over questions of legislative apportionment?

c) Conclusion In an opinion which explored the nature of “political questions” and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation.

d) 6 Factors that the courts will use to decide if question is nonjudiciable.

(1) Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department? as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be “political questions”

(2) “A lack of judicially discoverable and manageable standards for resolving it;”

(3) “The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;” e.g. use of force abroad.

(4) “The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;” e.g. U.S. v. Nixon

(5) “An unusual need for unquestioning adherence to a political decision already made;” e.g. Treaty powers. What if the president rescinds u.s. participation in the treaty.

(6) “The potentiality of embarrassment from multifarious pronouncements by various departments on one question.”e.g. kind of broad. One branch saying one thing and another saying something else.

(7) Gonzales says 1 and 2 are most important. But you better know all them!

(8) Dissent: Frankfurter says that there is not much difference here. Same situations they have seems before under guarantee and know it’s masquerading as a different animal.