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

Pope Spring 2016 – Rutgers Law – Con Law

I. Central Themes: From the Founding to the Civil War

Modes of Interpretation

Basic Kinds of Law: Constitution, Statutory, Administrative, Common Law
Clear Statement Rule: If there are 2 interpretations of a statute courts will generally choose the interpretation that will make the law constitutional
National Problem Argument: problem that can only be solved at the national level

Courts upholding state autonomy can prohibit from passing the laws they want
Structural argument

Synthetic Argument: takes a subsequently enacted Constitutional provision to reinterpret prior Constitutional provisions (typically used in women’s rights cases, 19th amendment changes how we view the 14th amendment)
Constitutional Arguments:

Interpretation of the duties and obligations of Congress
Implied v. Express Powers: congress can have powers the are not explicitly spelt out in the Constitution, but are required as a means to the end of enumerated powers

Original Meaning

What did the framers/drafters/ratifiers intend the section/clause to mean?

Belief of what it was intended to mean AT THE TIME OF DRAFTING
Key Times:

Drafting of Constitution/Bill of Rights: late 1700s
Reconstruction Amendments: 1870s
Switch in Time that Saved Nine (Overturn of Lochner) – 1934

How to Counter an Original Meaning Argument

Change Level of Abstraction – what is the underlying principle?
Changed Conditions

Facts have changed
Understanding of facts has changed

Carolene Products Footnote 4 (start at a presumption of Constitutionality) – Does the statute or practice at issue..

Violate a specific prohibition of the Constitution?
Restrict the political process?
Affect a discrete and insular minority? (typically religious, national, or racial receive the highest scrutiny)

Judicial Precedent on the Constitutional Issue

Is the statute/practice traditionally practiced and accepted overtime?

Can be refuted with a negative tradition or trend argument.

Natural Law

Reasoning from “the nature of things” or ethical concepts like fairness or justice.
This is where in equal protection cases you can make arguments on immutability/real differences

Policy Concerns

Levels of Scrutiny

Rational Basis – rational relation to a legitimate government interest
Intermediate scrutiny – substantial relation to an important government interest
Strict Scrutiny – narrowly tailored to meet a compelling government interest

McCulloch v. Maryland

Key Holding: If Congress enacts a law within its arena of power that contradicts with state law – federal law is superior (Supremacy Clause). Congress may take the appropriate means to meet a legitimate end (enumerated power).

Sources demonstrating Congress is not limited to enumerated Powers à

Text – 10th amendment excludes the word expressly which was included in the Articles of Confederation à Framers must have intended a more flexible approach to construing Congressional Powers
Original Meaning: Articles of Confederation – inclusion of ‘expressly’ was a mistake
Structure: Constitution emanated not from the states but from the common people, therefore grants of power need not be construed narrowly to ensure state consent

Sources demonstrating Congress’ powers imply the ordinary means of execution

Structure: government must use means to carry out powers all of which are not enumerated

Second Principle: States have no power to impede or burden (control) the operation of constitutional laws enacted by Congress to carry out powers vested in the federal government- no express provision allowing or disallowing state from taxing congressional entities

Judicial Review

Marbury v. Madison

Key Facts: Political drama – commissions for judicial appointment never sent out. Marbury filed suit for a writ of mandamus to receive his under the Judiciary Act of 1789 which authorized SCOTUS to grant mandamus
Did Marbury have a right to the commission?

Yes – all appropriate procedures were followed (signed by President)

Do the laws afford Marbury a remedy?

Distinction when the Court can afford relief: judiciary can provide relief against executive measures when there is a specific duty, not an issue of political discretion

Was a writ of mandamus the appropriate remedy?

Difference between ministerial and political acts à Judiciary can only review executive acts where the president has a legal duty to act or refrain from acting

The Courts appellate jurisdiction includes the power to hear appeals regarding the constitutionality of acts of other branches of the federal government

Inherent to the judicial role to decide the constitutionality of the laws it applies.

Justice and Law

Contracts Clause Cases (:How important is PURPOSE in constitutional interpretation (Purpose: see information on debtor relief laws), Purpose is admissible only when the framers would have excluded the case

Contracts Clause: Art I, §10 No state shall pass any law impairing the obligation of contracts.
Fletcher v. Peck

Key Facts: GA legislators bribed to sell land, a new legislature was elected and rescined all sales
Holding: GA legislature cannot rescind sales to bona-fine purchasers

: Contracts clause – a conveyance of land is a contract, therefore obligations must be upheld.
Slippery Slope: if the legislature can renounce its obligations, then everyone can renounce title making property ownership insecure
Held that courts can review acts of state legislatures and find them unconstitutional

Dartmouth College v. Woodward

Key Facts: legislature attempted to take action in violation of charter creating Dartmouth
Marshall broadly interprets contract clause to include charters

Ogden v, Saunders

The Contracts clause only prohibits retroactive impairments of the obligation of contracts (contract must exist before legislative impairment)

Prigg v. Pennsylvania

Slave owner captured escaped slaves in PA and brought them back to Maryland.Against a judges ruling (reviewed under the fugitive slave act- act allowed an owner to seize a fugitive slave in front of a judge where judge could provide a certificate to the owner) and PAlaw.PA wanted to prosecute under PA

rticle by appropriate legislation

Embedded justice into the Constitution
Colored Delegation of 1866- Colored leaders fought for enforcement of the 13th amendment and the right to vote, President Johnson rejected their efforts
Southern View: 13th amendment merely eliminated chattel slavery
Northern View: 13th amendment established all people as equal citizens

Fourteenth Amendment:

Citizenship clause à all persons born or naturalized in the U.S. is a citizen
State Action Requirement (no state shall..)

Privileges or Immunities Clause
Due Process Clause
Equal Protection Clause

Similar enforcement clause as that of the 13th amendment

United States v. Rhodes

Key Facts: Kentucky has a law in place that prevent people of color from testifying at trial
Held that law violated Constitution and Civil Rights Act of 1866

Key Reasoning:

McCulloch v. Maryland: “appropriate” intended to give Congress power to take means to met the end
: Section 2 intended to allow Congress to protect against the “evils of slavery”
Cites Prigg re: importance of looking at purpose of legislation (How Prigg was historically used – broad approach to power)

United States v Hall

Are the rights of free speech and assembly included in the privileges or immunities clause protected by the 14th amendment?

Yes- privileges or immunities clause include fundamental freedoms (including those guaranteed in the BOR)

Can the privileges or immunities clause be extended to people as a criminal charge?

Congress can protect against any individual actions à “state shall not deny … equal protection”

To act allows congress to act under the enforcement clause, inaction allows equal opportunity to act

United States v. Cruikshanks (1876)

Defendants violated sec 6 of enforcement act by attacking victims w/ the intent to block their right to vote
Barron v. Baltimore: Bill of Rights does not apply to the states
Citizens of the states versus citizens of the U.S.-

Abstract theory that a given right can only be a right of state citizenship OR of federal citizenship -> two totally distinct spheres
Only protected right: right to assemble and petition the federal government – inherent in any government à *this is an attempt to eliminate the PorI clause

Equal Protection Clause does not apply because there were no specific allegation that the acts were because of the race of the victims – could have been because of their race or political affiliation
No state action à does not consider an alternate path