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

Con Law

Spring 2015

Professor Pope

I. Modalities of Constitutional Interpretation

a. Textual

i. Because the constitution is written, text should be the first thing we look at

ii. When text is inadequate or unclear, other sources may be need to determine the meaning

b. History

i. Original intent

1. An attempt to determine the authorial intent behind any constitutional provision

2. Advocates think that it controls politically unaccountable judges

3. Whose intent counts? What about the people excluded then, but not now? Best evidence of intent?

ii. Original Meaning

1. Since original intent is hard to locate, sometimes look at original meaning

2. What the text meant when adopted

3. Interpretations are static

iii. Tradition

1. Based on historical evidence, used to establish an accepted practice over time

2. SCOTUS often confuses tradition and OM evidence (post ratification evidence)

iv. Synthetic

1. When the constitution is amended and changes in major ways, the field of interpreting other provisions changes along with it

2. 13-15th amendments fundamentally change the nature of the US constitution in a way that you don’t necessarily look at the preexisting provisions in the same way, changes the field of interpretation

a. Prior: rights were “against” the government

b. Post: rights were given, government had to enforce them

c. Structure

i. Particular principle or practical result is implicit in the structures of government and the relationships that are created by the constitution among citizens and governments

d. Precedent

i. Asserts principles derived from precedent, sometimes academia

ii. Court says doctrinal is the weakest

iii. However, for legal stability the adhere to precedence often

e. Consequential/prudential

i. Advancing particular doctrines according to the practical wisdom of using the courts in a particular way

ii. Many arguments about the proper separation of powers are prudential

f. Consensus

g. Natural Law

i. Cultural norms, non textual sources, moral concepts of justice, human autonomy, assumptions about fairness

ii. Can be persuasive when used in conjunction with other constitutional arguments

II. Judicial Review:

a. Origins

i. Marbury v. Madison (1803)

1. Established the authority for the judiciary to review the constitutionally of executive and legislative acts

b. Constitutional Interpretation

i. Cooper v. Aaron (1958)

1. After Brown v. Board said racial segregation in schools unconstitutional, Governor of Arkansas said that the ruling didn’t apply to them since they weren’t parties to the case

2. Article VI makes the Constitution the supreme law of the land

3. Therefore, Supreme Court ruling regarding the 14th amendment in Brown is binding on all the states

ii. District of Columbia v. Heller (2008)

1. D.C. passed a law that generally prohibited handguns

2. Court invalidated law under 2nd amendment, reasoning that 2nd amendment is an individual right to have a gun and general prohibitions are invalid under it

3. Textual

a. In other sections of constitution the phrase, “the people” refers to individual rights

4. Original Meaning

a. Dictionaries from that time defined arms as weapons not specially for military use

b. Historical context shows fear that federal government would disarm people

5. Structure

a. Other constitutional provisions protect slavery and from insurrections by slaves. The individual rights interpretation fits into that framework

6. Precedent

a. US v. Miller: read narrowly

7. Tradition

a. Looking at 19th century commentators and various state courts after the passage of 2nd amendment

8. Natural law

a. Blackstone: natural right of resistance and self preservation

c. Standard of Review

i. Rational basis

1. Legislation/government action bears a rational relationship to a legitimate government interest

2. This is the background test because there is a presumption of constitutionality, unless something triggers the judges to be critical rather than deferential

ii. Intermediate scrutiny

1. Legislation/government action bears a substantial relationship to an important government interest

iii. Strict scrutiny

1. Legislation/government action must be necessary for the accomplishment of a compelling government interest

iv. DC v. Heller (revisited)

1. Dissent thinks that the majority is essentially making a policy decision, and that the court is not equipped to make such a decision

2. Should be more deferential to the legislature, not critical

3. Legislature had drawn reasonable inferences based on substantial evidence

v. United States v. Carolene Products footnote 4

1. Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:

a. On its face violates a provision of the Constitution (facial challenge).

b. Attempts to distort or rig the political process.

c. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process (discrete and insular minorities)

III. Federalism

a. Fundamentals

i. McCulloch v. Maryland

1. The State of Maryland tried to tax the national bank

2. Based on the necessary and proper and supremacy clauses, the states may not interfere with a federal law enacted within the scope of Congress’ power

3. Necessary and proper

a. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional

4. Pretext qualifier

a. When congress passes a law under the pretext of executing its power, but to accomplish objects not entrusted to the government, the court should deci

& Co v. United States

a. Upheld price fixing of meat dealers because the entire industry has interstate elements

b. Interstate commerce consists of a steam of intrastate commerce, congress can regulate intrastate commerce in those instances where it is flowing from one state to another

c. No real slippery slope stopper

2. Stafford v. Wallace

a. Upheld the regulations governing practices of stockyard dealers under stream of commerce theory

v. Commerce Prohibiting Technique

1. The Lottery Case

a. Congress banned the interstate shipment of lottery tickets

b. Court said that lottery tickets were articles of commerce and that the power to regulate interstate commerce includes the power to prohibit interstate commerce

2. Hipolite Egg v. United States

a. Upheld the regulation of shipment of non-complying preserved eggs

3. Hoke v. United states

a. Upheld the Mann Act which prohibited the prohibition of women in interstate commerce for immoral purposes

4. Hammer v. Dagenhart

a. Court struck down law prohibiting the interstate shipment of goods produced by child labor

b. Goods themselves are not harmful, unlike Hipolite case

c. The production of the goods themselves is not under federal control, that is a local issue

vi. New Deal cases

1. RR retirement board v. Alton

a. Voided a federal law creating pension program for RR workers as not within the purpose or effect of commerce clause, too remote from commerce

2. ALA Schechter Poultry Corp v. US

a. Struck down national industrial recover act, which placed codes of fair conduct on businesses binding them within an industry, max prices, minimum wages, collective bargaining

b. Unconstitutionally delegated legislative powers and lacked sufficiently direct connection to interstate commerce

3. NLRB v Jones & Laughlin Steel Corp

a. Court upheld National Labor Relations Act which defined the discharge of employees for union activities as an unfair labor practice and prohibited unfair labor practices affecting interstate commerce

b. Challenged as indirect under Carter Coal standard, but distinguished because the law specifically says it has to affect interstate commerce

c. Intrastate commerce may be regulated when:

i. Close and substantial relation to interstate commerce

ii. Control is essential or appropriate to protect commerce from burdens or obstructions