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Constitutional Law I
Rutgers University, Newark School of Law
Sclar, Diana



Dead Hand Problem – Why citizens of contemporary US should remain beholden to a document drafted by people long dead who lived in a different world.

1.1: Constitutional Functions

1. Constitution defines the constitutions and powers of the main organs of the diff branches of gov’t

o Identifies the Constitution as constitutive of legal and political structures which is that legal system

2. Meant to serve as a stable framework for political and legal institutions of the country, to be adjusted and amended form time to time, but basically to preserve the stability and continuity in the legal and political structure and the basic principles that guide its institutions

3. It has a canonical formulation – it is enshrined in one or a small number of written documents (written)

4. It constitutes superior law (superior law)

5. There are judicial procedures to implement the superiority of the constitution (justiciable)

6. Constitutional Amends are legally more difficult to secure than ordinary legislation (entrenched)

7. It’s provisions include principles of gov’t that are generally held to express common beliefs of the population about the way their society should be governed (common ideology)

Functions of the Constitution

1. Constitute the Gov’t by creating gov’tal institutions, conferring powers upon them, and setting the boundaries of their jurisdictions.

2. Confer Rights on Individuals that limit the exercise of power by gov’tal institutions

3. Entrench the institutions and rights thus created against future legal change.

Interpret Text on 3 Principles

1. Originalism

o Words of use must be understood as they were by the ratifying public at the time of enactment

2. Traditionalism

o As understood by people over course of constitutional history

3. Restraint

o Unless text & history are tolerably clear (two above) Judges should refer to decisions of present day constitutions.

Police Power – Power of state to regulate for health and safety of citizens

Rational Basis Scrutiny – Court will uphold police power if it has a rational basis.

1.2: The Dead Hand Problem

Why a diverse, democratic, and living society would consent to be ruled by a document penned by a small group of elites who are white, male, and dead.

District of Columbia v. Heller (judicial forms of analysis) (individual right to possess)

· Facts: Heller was a police officer authorized to carry handgun while on duty. He applied for registration certificate for a handgun that he wished to keep at home but was refused. Heller sued city to enjoin it from enforcing bar on the registration of handguns, the licensing requirement b/c it prohibits the carrying of a handgun in the home w/o a license, and the trigger-lock requirement b/c it prohibits the use of functional firearms in the home.

· Held: 2nd Amend is divided into 2 parts – prefatory and operative clauses.

o Prefatory clause states a purpose and clarifies the operative clause but does not limit or expand the scope of the operative clause. (to prevent elimination of the militia)

o Operative clause’s text and history demonstrated that it connoted an individual right to keep and bear arms, and Ct’s reading of the operative clause was consistent with the announced purpose of the prefatory clause. (conferred individual right to keep and bear arms, but does not protect the right to carry arms for any sort of confrontation.)

§ “Right of the People” – all 3 instances of this phrase in the Constitution refer to individual rights. There is a strong presumption that the 2nd A right is exercised individually and belongs to all Americans.

§ “Keep and bear Arms” – “keep arms” is to “have weapons” and was simply a common way of referring to possessing arms for both the militia and everyone else; “bear arms” meant “to carry” and when used with the word “arms” means “being armed and ready for offensive or defensive action in the case of conflict with another person”

o None of the Ct’s precedents foreclosed its conclusions; held that 2nd A right was not unlimited, and its opinion should not be taken to cast doubt on long-standing prohibitions related to firearms

· Rule: 2nd Amend protects an individual right to possess a firearm unconnected with a service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

· States can’t take different positions on what 2nd A says due to the Supremacy Clause. But we don’t even know if the 2nd A applies to the States. As far as we know, it applies to the Fed Gov’t

· Dissent (Stevens): 2nd Amend was adopted to protect right of people to maintain a well regulated militia – response to concern that power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to state sovereignty. No indication that the Framers intended to enshrine the common law right of self-defense in the Constitution. The view in Miller that the 2nd Amend protects the right to keep/bear arms for certain military purposes, but does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons, is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

· Dissent (Breyer): 2nd Amend protects militia-related interests, not self-defense-related interests. It permits gov’t to regulate the interests that it serves. Colonial history important examples of the kinds of gun regulation that citizens would then have thought compatible with the right to keep and bear arms – substantial regulation of firearms in urban areas, and regulations that imposed limitations on the use of firearms for the protection of the home. True strict scrutiny standard for evaluating gun control regulations is impossible – adopt an interest-balancing inquiry. In applying this kind of standard the Ct normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and institutional fact-finding capacity.

BLR: The DC Code’s (1) general bar against the registration of handguns, (2) prohibition against carrying a pistol without a license and (3) requirement that all lawful firearms to be kept unloaded and either disassembled or trigger locked violate rights of individuals under the U.S. Constitution’s 2nd A, which permits individuals to keep handguns and other firearms for private use in their homes, even though they are not affiliated with any state-regulated militia. This is a landmark case since it is the first SCOTUS case ever to deal directly with whether the right to keep and bear arms is a right of individuals, in addition to being a collective right that applies only to state-regulated militias. 6 original πs, and all but Heller were found to not have standing by the C of A, Heller was the only π who had been denied a permit for a handgun.

DC v. Heller (more)



Stevens Dissent

Text – Present Day Meaning

The 3 other provisions of the Const that refer to rights held by “the people” – the 1A assembly and petition clause, the 4A search and seizure clause, and the 9A – “unambiguously refer to individual rights, not ‘collective’ rights . . .”

After saying that “the people” must mean the same thing in all provisions, the majority “limits the protected class to ‘law-abiding, responsible citizens.’” But the 1st & 4th Amends protect even felons.

History – Original Meaning

Contemporary dictionaries: Weapons used for defense, not just military purpose.

Historical context, purpose: “During the 1788 ratification debates, the fear that the fed gov’t would disarm the people in order to impose rule through a standing army or select militia was pervasive in Anti-federalist rhetoric…”

Contemporary usage: “In numerous instances, ‘bear arms’ was unambiguously used to refer to the carrying of weapons outside of an organized militia,” for example, in the Pennsylvania and Vermont Constitutions, which were enacted prior to the 2A, as well as various provisions enacted afterward.

Legislative history of the Amend: “It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process. In any case, what JUSTICE STEVENS would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights.”

Oxford Dictionary (1989): Bear arms means for military purposes.

During the ratification of the 2nd A states were worried about tyranny from federal gov’t so it was state’s right to protect themselves through militia.

“Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amend. It confirms intent to describe a duty as well as a right, and it unequivocally identifies the military character of both.”

“Neither the text of the Amend nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amend intended to enshrine the common-law right of self-defense in the Constitution.”


(combined with history)

“There are many reasons why the militia was thought to be ‘necessary to the security of a free state’” one of which is to enable the people “to resist tyranny.” But “if petitioners are correct, the Second Amend p

they can violate it – it is binding until it is changed

· The idea that the Supreme Court would have authority to invalidate actions by other gov’tal actors that contravened limits the Constitution established was hardly unknown to the framers and ratifiers in 1789

· Theory – Not good for Congress to make law and decide if law is constitutional

Marbury v. Madison – Established authority for judiciary to review constitutionality of executive and legislative acts

· Constitution is silent as to whether fed courts have this authority but the power has since existed

· Look a Judiciary Act of 1789

· Facts: 1 wk before end of Pres Adam’s term, Congress adopted act which authorized Pres. to appoint 42 justices of the peace. Adams announced his nomination day before Jefferson’s inauguration. Secretary of State and Chief Justice John Marshall signed commissions for the individuals and dispatched James Marshall to deliver them. Marbury’s commission was not delivered before inauguration and Pres. Jefferson instructed his secretary of state to withhold undelivered commissions. Marbury filed suit in SC seeking writ of mandamus to compel Madison to deliver commission

· Mandamus is appropriate remedy BUT Supreme Court has original jurisdiction in this case according to the Constitution. In order to issue mandamus, it must be an exercise of appellate jurisdiction. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Art 3.

· Held: Could not const’lly hear the case as a matter of original jurisdiction

· Analysis:

o Does Marbury have a right to the commission he demands? YES

§ Ct first determined whether he has been appointed to the office in order to determine whether he is entitled to the commission. Ct decides that when a commission has been signed by the president and a US Seal has been affixed, the appointment is made – Ct held delivery was not required

o If so, and that right has been violated, is there a remedy for Marbury?

§ “where there is a legal right, there is also a legal remedy”

§ Appointment of officers is a power exercised by the President. Unless the officer is removable at the will of the President, his acquired rights are protected by the law à Ct finds that Marbury has a right to the commission and a refusal to deliver is a violation of that right which affords him a remedy

o Is the issue justiciable? Is it an issue for the court to decide? YES (bc it involves the delivery of the apt – simply an administerial act BUT THEN you have to look at § of Judiciary Art

o BLR: SCOTUS has the power, implied from Art. VI § 2 of the Constitution, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.

2.2: Cases and Controversies

Judicial Sovereignty – The idea that a law may be held unconstitutional if the Court thinks it is, even though the case is not plain, and that the Court’s opinion to this effect is binding on other branches of gov’t

Limits on Judicial Sovereignty

1. Judges may be impeached for treason, bribery, or other high crimes and misdemeanors under Art 2 § 4

2. Art 3 limitation of judicial authority to “cases and controversies”

3. Doctrine of nonjusticiable political questions”

Marbury – Courts may only decide actual disputes between real parties, not simply weigh in with advice on great questions of the day.

Correspondence of the Justices (1793)

· General Rule against “advisory opinions”

o Opinion issued by a court that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law

· Justices cannot answer Jefferson’s questions

o Request from President is NOT a case

Case or Controversy (Article 3 Sec 2)

· Case does not exist unless P has standing to sue

· P must have a personal stake in the litigation in order to bring suit

Elements of Standing (the right to bring the suit to determine that cause of action exists)

· Injury

· Causation/Traceability

· Redressability