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Constitutional Law I
Rutgers University, Newark School of Law
Weiner, Mark S.


Professor Weiner
Weakness of Articles of Confederation → Constitutional Convention
Weak national authority – couldn’t resolve interstate boundaries, commerce, international defense: Convention –representatives of the people – created a Constitution → submitted for ratification→ dissolved

Creation of national government with power to act over individual citizens

Ratification of a written constitution (contra e.g., England): significance?
English constitution – common law, acts of parliament custom – unlimited power resides in parliament; Blackstone – what Parliament does, no power on earth can undo American Const. – Paine –Constitution is a thing antecedent to government; government is a creation of Constitution; people are sovereign –not the government.

Republican government (“We the People”) of limited powers
Government limited by Constitution – constrains legislation; people are sovereign

Structurally balanced between. 3 coordinate branches (separation of powers) & the states (federalism)
Establishes national government – allocates power between 3 branches and enumerates the powers of each. Controls relationship between national government and states. Creates limited government –protects individual rights

Art I (Legislature), Art II (Executive), Article III (Judiciary), Compare extent of enumeration of powers in each: significance?
Article I – creates Congress, legislative powers in 2 branches, enumerates powers Section 8 – defines Congresses specific powers –express and implied.
Article II – Executive branch – defines powers & qualifications
Article III – Creates judiciary –Supreme Court – authorizes Congress to create lower courts; defines jurisdiction of Supreme Court – Section 2.

Why divide power between three branches?
Centralization of power was considered tyranny; strong presumption of inaction – less government is best.

Why maintain two levels of government?
Federal government has limited powers – must be enumerated by Constitution; state gov. is inherent – valid unless violates a specific limitation imposed by Constitution; some functions of gov. clearly handled better at more local level –some require national gov.

James Madison: federalist No. 10: structural ways to combat sectarianism: Why choose a Republican form of government as opposed to direct democracy.

Article VI, the Supremacy Clause: significance? 
Once Federal law enacted it is supreme –conflicting state laws are invalid & are preempted

Article V, amendment process: significance?
Makes it hard to amend; only 17 since BOR; makes it hard to change during emergencies; protects from dictatorship, majority rule

Which branch would be the “final” arbiter of constitutional meaning?
Constitution doesn’t say –evolved into Judicial Review

Theories of Constitutional Interpretation
Theories of constitutional interpretation: originalism vs. non-originalism
Originalsim and original intent –
protect values clearly stated in text of Const or derived from framers intent.

ividual rights against the majority; Warren –is it fair?

Examples in 2nd Amendment debate
Fed law preventing owning firearm while under restraining order
Schools of thought
1) 2nd Amend protects individuals right to carry arms:
·        Structural: Placed in the bill of rights, meant to safeguard individual liberties from the central government. Nothing to do with collective rights of states.
·        Language: “the right of the people to keep and bear Arms, shall not be infringed.”
·        If argue 1st school –Fed law would be unconstitutional

2) protects collective right of state to maintain a militia
·        Textual – ambiguity –individual v collective right?
·        Language: “A well regulated Militia, being necessary to the security of a free State”
·        If argue 2nd school –Fed law is valid
Historical – what was going on at time? What were the concerns?
Precedent – US v Miller – narrow interpretation –little case law on 2nd Amend.

Judicial Review- Constitution does not explicitly grant judicial review; historical –no evidence framers. Intended judicial review: Congress could decide –also not found in Const.