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





TEXT- what the text of the Constitution actually says, including the structure of the text.

§ Use historical dictionaries as a source—dictionary at the time of the text

§ NEXUS- use other amendments’ texts to get to asserted right

§ Don’t make textual arguments of statute language

OM- what the words meant at the time of the drafting. Use historical evidence.

§ Look at documents/writings/communications at time of ratification as an insight to what drafters thought

§ Argument about the meaning of the constitution that relies on history, not in text of constitution

§ What are the laws in place at the time of (and even shortly after) ratification

§ Levels of Abstraction – for a broader application, go to higher levels of abstraction.

STRUCTURE- based on how government structure set up by Constitution works in practice and operates. Is it the Court’s place to rule on this issue/strike down this legislation?

§ How should branches work, effect, and operate on each other

§ CAROLENE PRODUCT FN4—presumption of Constitutionality unless law falls into 3 prongs

§ Arises in federalism/separation of powers

§ SDP don’t have structural arguments

PRECEDENT- court looks at previous precedent (common law, stare decisis) on the specific constitutional issue at hand

§ Look at how previous cases were decided and analogize to the case

§ Use especially for SDP arguments – is the right at issue a fundamental right?

TRADITION- make decisions not based on will or value judgments, but on the balance the country has trust between liberty and demands of society. Tradition refers to accepted practice leading up to the time of issue at hand, NOT leading up to ratification (which speaks more to original meaning).

§ Positive tradition

o Based on historical information/evidence and used to establish an accepted practice over time.

o “This is the way things have worked and why change that?”

§ Remember to argue NEGATIVE TRADITION

§ Use especially for SDP arguments – is the right at issue a fundamental right?

CONSENSUS- everyone who matters agrees

§ Operates from past laws and movements

NATURAL LAW- law arises from God/natural order of things, ethical concepts of “fairness”. Natural law is a question of justice.

CONSEQUENCES – Prudential considerations, or policy.

A. Modes of Interpretation

a. McCulloch v. Maryland (1819)

i. Facts: An Act of Congress established a federal U.S. Bank. Maryland law requires all banks to print their notes on paper issued by the state, and specifies fees for the paper, and penalties for failure to comply. Fed bank in MD refuses to pay the fees/penalties.

ii. Issues:

1. Does Congress have the power to incorporate a bank?

2. Does a state have the power to impose fees on the operation of an institution created by Congress pursuant to its constitutional powers?

iii. Holding/Rule of Law

1. Yes. Congress is not limited to the enumerated powers specified in the Constitution. The Necessary and Proper Clause grants Congress the power to enact the means to perform its specified enumerated powers (i.e. the power to incorporate a bank can be inferred as a necessary means to collecting taxes, borrowing money, regulating commerce, declare and fund war, raise and support armies and navy, etc).

2. No. The Supremacy Clause states that the Federal Constitution and the laws made pursuant to it are supreme and control the laws of the states. Here, the Maryland statute taxes the operation of the federal bank, properly created within Congress’s power. This is in opposition to the supreme congressional power to create a bank.

a. Also, a state cannot tax an institution created by people (the federal gov’t, and thus all Americans) over whom it claims no control

iv. But How Do We Know This? (Modes of Interpretation)

1. TEXT – The Necessary and Proper Clause clearly allows Congress to make laws that go beyond the enumerated powers specified in the Constitution.

2. O.M. – The framers of the constitution omitted the word “expressly” in the 10th Amendment. This omission was clearly intentional, because it was included in the Art. of Confederation. The omission shows that the framers intended the powers of Congress to be more flexible.

3. STRUCTURE – The Constitution emanated from the people of the U.S., not from the states. Therefore, Congressional power need not be construed narrowly to ensure state consent.

4. TRADITION – Incorporation of a federal bank has been approved by the legislature and judiciary in the past (kind of a weak tradition argument here).

B. Judicial Review

a. Marbury v. Madison (1807)

i. Facts: Incoming president Jefferson’s secy of state (Madison) refused to deliver a commission to Marbury that was granted to him by the outgoing president. Marbury went to SCOTUS seeking writ of mandamus commanding Madison to deliver the commission.

ii. Issue: The Judiciary Act of 1789 gives SCOTUS original jurisdiction in issuing writs of mandamus to courts or persons holding office under U.S. authority. This contradicts Article III of the Constitution, which only gives SCOTUS original jurisdiction in cases affecting ambassadors, other public ministers and consuls, and where a state is a party. In any other cases, it shall have appellate jurisdiction. So, does Congress have the power to assign SCOTUS original or appellate jurisdiction (as it did in the Judiciary Act) in contradiction to Article III of the Constitution?

iii. Holding/Rule of Law:

1. No. SCOTUS has authority to review the constitutionality of executive and legislative acts, and if they are found to violate the Constitution, to declare them void.

C. Justice and Law

a. Fletcher v. Peck (1810): Contract Clause

i. GA legislature was bribed to convey land, but grant was rescinded after much of the land had already been sold to bona fide purchasers.

ii. Contracts Clause of Constitution declares no state shall pass any law impairing the obligation of contracts. Conveyance of land isn’t necessarily a K, but Marshall chooses to say it is. If he chose otherwise, and allowed the grants to be rescinded, property value becomes insecure.

iii. Dartmouth College (1819) – Ct. holds that NH could not modify a private institution’s charter to place it under public control. Marshal ignores the Original Meaning (K clause intended to prohibit debtor relief laws) and interprets the Text by saying “contracts” extends to charters.

iv. Ogden v. Saunders (1927) – Pursuant to NY bankruptcy law passed in 1801, Ogden was relieved of his K debt to Saunders. Saunders argued state law couldn’t impair K obligations. SCOTUS held that K clause only prohibits retroactive impairments of the obligations of a K. Statutes in effect at the time of the K become part of the K.

b. Prigg v. Pennsylvania (1842):

i. Supreme Court reversed Prigg’s conviction under PA statute prohibiting self-help in the return of fugitive slaves.

ii. PA statute conflicted with federal Fugitive Slave Act and “Fugitive Slave Clause” of the Constitution, which gave slave owners the authority to seize and recapture slaves in any state. The FSA was enacted before the PA statute, so it trumps it. But is the FSA constitutional? Yes

iii. J. Story focuses on the purpose of the fugitive slave clause (textually there is nothing granting Congress power to regulate slave trade). If run-away slaves could be declared free in Northern States, the Southern States would have never joined the union. The purpose was to secure property rights of Southern States, and PA statute conflicted with this purpose.

c. Dred Scott v. Sandford (1857):

i. Slave who was taken to a free state by his owner filed suit claiming he was a free citizen with all the rights, privileges, and immunities guaranteed by the Constitution. Court found that he was not a citizen and cannot bring suit in federal court.

ii. Original Meaning: Court said that free blacks were not citizens of the United States because the Framers did not intend to include blacks as citizens

iii. Natural Law is completely thrown out here. Taney says justice is not our concern. Justice is up to the law making body. The role of the court is to interpret the instruments that the law makers framed.

iv. At the time of ratification of the Constitution blacks were treated as subordinates. “Persons who are descendants of Africans brought unwillingly into this country, and sold as slaves” are not and could not become US citizens – Americans of African ancestry had no rights which the white man was bound to respect. Taney says slaves and their descendants were not acknowledged as part of “the people” and were considered as mere property, and therefore cannot be considered citizens. First sentence of 14A is meant to overturn Dred Scott.


Reconstruction Amendments

13th Amendment – Ratified in 1865

i. Now, natural law/justice is enshrined in the Constitution

ii. Southern States see 13A as merely eliminating blacks as property and begin legislating to give blacks as few rights as possible.

iii. Civil Rights Act of 1866 – Overrules Dred Scott. Must prove that you have been denied a right that white citizens have, and don’t have to show racial discrimination.

United States v. Rhodes (Circuit Ct.) (1866): KY law prohibits blacks from testifying


2. Strong is saying there is race prejudice going on. He is looking at the context (which Cruikshank refused to do) and accusing WV of being prejudiced.

Plessy v. Ferguson (1896) – Separate but Equal

i. Plessy is arrested for violating LA statute by sitting in “whites only” section on train.

ii. Court holds this is a valid exercise of state’s police power. Established custom, usage and tradition makes segregation a reasonable means to preserve order and public peace.

1. 13th amend fails because court finds no “badges of slavery”

2. 14th amend is not violated, because both races get equal treatment of the law

a. Distinguishes between “social” and “political” equality. Social equality is not protected. Separate but equal does not abridge privileges or immunities, property rights, due process, etc. Legislation can’t erase social inferiority.

Giles v. Harris (1903) Black man challenges systematic denial of voting rights in AL. Court refuses to grant injunction – little practical power to address the problem.

i. As in Cruikshank, the power to redress this grievance lies with the State, b/c it is private individuals preventing blacks from voting. (again, SCOTUS declines to make the argument that state inaction/omission can constitute denial of equal protection)


· Economic liberties refer to constitutional rights concerning the ability to enter into and enforce contracts, to pursue a trade or profession, and to acquire, possess, and convey property

· Lochner v. NY (1905)- SCOTUS declared unconstitutional a NY law that set the maximum hours for bakers

o Violated DPC of 14th because it interfered with freedom of K and did not serve a valid police purpose; protecting health of bakers was not a sufficient justification

o 1. Freedom of K is a basic right protected as liberty and property rights under the DPC of 5th and 14th amendment

o 2. Government can interfere with freedom of K only to serve a valid police purpose—protect the public safety, public health, or public morals

§ Limiting hours of bakers had no relationship to public health

o 3. It is the role of judiciary to scrutinize legislation interfering with freedom of K to make sure that it served a police purpose

o LOCHNERIZE – a method to examine and strike down economic legislation under the guise of enforcing the Due Process Clause. Court acting as super-legislature – method of legal reasoning where a court substitutes its policy judgment for a legislature in overturning legislation.

o Lochner is the first time we see Pope’s Trigger/Test/Analysis (basic structure of doctrine of individual rights). Is a const/ right infringed? If yes, court looks as whether the gov’t interest is important enough to justify the infringement. Is the infringement a reasonable means towards the ends of safety, health, morals or general welfare (state’s police power)?

§ Trigger – State law infringes on liberty to K

§ Test – critical scrutiny. Act must have direct relation, as a means to an end, and the end itself must be appropriate/legitimate.

§ Application

· Interest #1 – protecting public health.

o Assess Interest – Appropriate and legit b/c w/in state’s police power

o Means/Ends Fit – Under-inclusive, so it’s no good. Fails to cover trades that are vastly less healthy than baking. Also, not convinced that long hours result in unhealthy bread

· Interest #2 – protecting workers with unequal bargaining power.

o Assess Interest – Illegitimate, b/c there is no contention that bakers as a class are not equal in intelligence and capacity to other trades. Implying that bakers can’t K for their own labor is insulting to their manhood.

o Means/Ends Fit – since interest is no legit, no need to assess means/ends fit.