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

Constitutional Law
Spring 2013

Introduction to the U.S. Constitution

1.            Organization of the Constitution
A.            Preamble:
i.            Lists the six goals of the People in adopting the Constitution:
a.            To form a more perfect Union;
b.            Establish justice;
c.            Insure domestic tranquility;
d.            Provide for the common defense;
e.            Promote the general welfare; and
f.            Secure the blessings of liberty to ourselves and our posterity
ii.            Preamble does not create legal rights, duties or powers, but it does make clear that the People rather than the states adopted the Constitution
B.            Article I:
i.            Contains ten sections that address the legislative branch
ii.            Art. I, § 1: Establishes that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
a.            Congress has these powers, and the president and courts do not.
iii.            Art. I, § 2-6: How senators and representatives selected, what their qualifications must be, how they are paid, etc.
a.            Art. I, § 2, ¶ 3: three-fifths clause regarding slaves and apportionment with regards to representatives. Slaves only counted as three-fifths of a person. South viewed them as property.
i.            Can be seen as preservation to slavery by the south, could also be indicative of future efforts to abolish slavery.
iv.            Art. I, § 7: describes procedures that Congress must follow in order to pass a law.
a.            Two steps:
i.            The house and senate have to approve a bill; and
ii.            The president must sign it.
b.            If president vetoes a bill, the house and senate can override veto with a two-thirds vote
v.            Art. I, § 8: what subjects can Congress pass laws upon?
a.            Congress may:
i.            Collect taxes;
ii.            Regulate interstate and foreign commerce;
iii.            Establish a post office;
iv.            Regulate the District of Colombia;
v.            Regulate and dispose of federal property;
vi.            Declare war, and can establish and fund the armed forces;
vii.            Enforce the post-Civil War amendments
vi.            Art. I, § 9: Congress cannot suspend writ of habeas corpus, pass ex post factor laws, tax exports from states, or give preference to one state’s ports.
vii.            Art. I, § 10: Congress cannot enter treaties or coin money, impose duties on imports and exports, etc.
C.            Article II:
i.            Concerns executive branch, chief executive being the POTUS
ii.            Art. II, § 1: “the executive power shall be vested in a President of the United States of America.”
a.            Art. II, § 2, ¶ 2&3: possible perpetuations of the existence of slavery by the south, juices up how many representatives the southern states had.
iii.            President does not act alone, is assisted by federal departments and agencies. Constitution does not create these departments, but contemplates them.
iv.            Art. II, § 2: puts POTUS in charge of the military, and allows him to grant pardons and appoint office holders
v.            Art. II. § 3: POTUS required to report to Congress, receive ambassadors, make sure laws are faithfully executed, etc.
D.            Article III:
i.            Describes power of federal judiciary
a.            Art. III, § 1: “the [j]udicial power of the united states shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.
i.            Supreme Court required, cannot be abolished. This is the minimum.
ii.            Can create courts.
b.            Art. III, § 2: describes subject matter jurisdiction of federal courts.
i.            They can hear lawsuits between “Citizens of different states,” commonly known as diversity jurisdiction
E.            Articles IV-VII:
i.            Art. IV: generally addresses relations among the states
a.            Art. IV, § 1: “full faith and credit shall be given in each state to” public acts, records, judicial proceedings of every other state. Congress may prescribe way in which those acts, records and proceedings shall be proved and the effect thereof, through general laws.
b.            Art. IV, § 2:
i.            Citizens of each state are entitled to all privileges and immunities of citizens in the several states.
ii.            Fugitive slave clause: anyone charged in any state with treason, felony, or other crime who flees from justice and is found in another state, “shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state” that has jurisdiction of the crime.
iii.            Made it so that even if a slave escaped and left to another state, their status as a slave could not be changed.
c.            Art. IV, § 3:
i.            New states can be admitted into this union by congress, but no new state is to be formed or erected within jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without consent of the legislatures of the states involved and congress.
d.            Art. IV, § 4: United States is to guarantee to every state in this union a Republican form of Government, will protect each of them against invasion; and against domestic violence (on application of the legislature, or of the executive when legislature cannot be convened).
ii.            Art. V: discusses amendment process. Incredibly difficult to amend the Constitution.
a.            Step 1: House and Senate can propose amendments by a two-thirds vote or two-thirds of the state can call a convention
i.            Not impossible, done about 14 times. Still very difficult.
ii.            Legislatures do propose various amendments to the constitution.
b.            Step 2: Amendment proposals became effective when three-fourths of the states have ratified them in their legislatures or in conventions.
c.            Before 1808, under the constitution, there can be no constitutional amendment that can alter the three-fifths clause, also deals with importation of slaves into the United States
d.            Usually changed judicially, SCOTUS is usually responsible for altering the contours of the constitution
iii.            Art. VI
a.            All debts contracted and engagements entered into before adoption of constitution are to be valid against the United States under this constitution, as under the confederation
b.            Supremacy Clause: “Constitution, and the Laws of the United States *** shall be the supreme law of the land.”
i.            If there is ever a conflict between federal and state law, federal law prevails. Even a state constitution will be trumped by any conflicting form of federal law (constitution, law, or even just a regulation)
c.            Senators, representatives, members of state legislatures, and all executive and judicial officers of US and states, are bound by oath or affirmation to support Constitution, but no religious test is ever required as a qualification to any office or public trust under US.
iv.            Art. VII: describes ratification process that had to occur before Constitution could take effect. Would be ratified once nine of the thirteen states convention ratified. Popular sovereigns don’t act through legislative bodies, but through conventions.
F.            Amendments:
i.            27 amendments in the constitution
ii.            Bill of Rights: first 10 amendments done by the first congress, protect large number of individual rights
iii.            Amendments 13-15: ‘civil war era amendments’ or ‘reconstruction amendments’ b/c passed at end of the civil war. Abolish slavery, bar states from denying equal protection of the laws or due process of the law to any person, and protective voting rights.
2.            Interpreting the Constitution
A.            Interpretation Ideology
i.            Originalism: change only by amendments – follow, do not add to Constitution

ptions, and under such regulations as the Congress shall make. Congress can create statutes to cut back the SCOTUS appellate jurisdiction. It cannot expand SCOTUS jurisdiction beyond the federal judicial power.
a.            Ex Parte McCardle: A newspaper editor was arrested for writing articles critical of Reconstruction, petitioned SCOTUS for a writ of habeas corpus. He argued that the Military Reconstruction Act and his prosecution were unconstitutional.
i.            Court finds that Congress taking away SCOTUS review power for habeas corpus petitions was valid because of the constitutional authority to do so.
b.            Congress may not limit the SCOTUS Appellate Jurisdiction to have the effect of eliminating:
i.            Individual liberties;
ii.            Separation of powers;
iii.            The Special Function Theory (SCOTUS role to decide Constitutional Law issues.
b.            Art. III, § 1: Congress has authority to create federal courts, but their jurisdiction is limited to the outlined jurisdictions under Art. III, § 2.
i.            Sheldon v. Sill establishes that “Congress may withhold from any court of its creation jurisdiction of any of the [Art. III, § 2] enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers.”
ii.            Justiciability Requirements Limiting Federal Judicial Review:
a.            Advisory Opinions: Absent an actual case and controversy, the federal courts may not issue opinions on hypothetical situations or legislation.
i.            A case is deemed a controversy appropriate for judicial review/judgment only if:
a.            The matter turns into an actual dispute between adverse litigants; and
b.            There is a substantial likelihood the SCOTUS judgment will have some effect
ii.            Declaratory Judgments are allowed sometimes though, if the action does not only raise questions that are very abstract or hypothetical.
a.            Declaratory Judgment: a judicial decision in which the court is not requested to award damages or an injunction, but is instead requested to state what the legal effect would be of proposed conduct by one or both of the parties.
iii.            Jefferson’s letter to SCOTUS: SCOTUS does not do legal memos.
iv.            Heyburn’s Case: SCOTUS does not recommend outcomes to the executive branch.
v.            SCOTUS cannot adjudicate disputes where litigants are not true adversaries. Must be an actual dispute between adverse litigants.
a.            Muskrat v. United States: Congress passed legislation allocating certain lands to specified members of the Cherokee Nation. Congress later enacted a statute that increased the number of Native Americans entitled to hare in the final distribution of Cherokee lands and funds, but it gave the original grantees the right to challenge the increase.
i.            Court found that this was an illegal advisory opinion because even though it looked like there was a plaintiff and a defendant, the parties were not actually adverse.