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Constitutional Law I
Rutgers University, Newark School of Law
Weiner, Mark S.

The constitution functions

1.      Constitution creates a national government and divides power among three branches.

Article I – legislative power
Article II – executive power
Article III – judicial

Designed to create a system of checks and balances and lessen the possibility of tyrannical rule. Generally, in order for govt to act, 2 branches must be involved

2.      Constitution divides power between federal and state govts

Federalism – vertical division of authority

Tenth amendment debate – does tenth amendment create a zone of authority exclusively for the states? Should judiciary invalidate laws that infringe that zone?

Before 1937 – tenth amendment used aggressively to limit congress’ power
After 1937 – court rejected this view and did not see 10th amendment as a basis for declaring federal laws unconstitutional
1990s – tenth amendment resurrected

Supremacy clause – the constitution, laws of the united states, treaties, are the law of the land

Sets up a hierarchical relationship between federal and state govt. state and local laws are deemed preempted if they conflict with federal law.

Federalism limits the ability of states to impose burdens on each other.

3.      Protects individual liberties

Framers thought it unnecessary to elaborate on individual rights because rights were adequately protected by the limitations on power of the national govt.

Framers may have been fearful that enumerating some rights would imply denying existence of others

Several states required the bill of rights in order to ratify constitution

Constitutions protection of individual rights applies only to the govt; private conduct does not have to comply with constitution (state action doctrine)


lack of national executive or judiciary, e.g., no way to ensure that states would comply with laws adopted by congress

constitutional conventiuon

ratification process

addition of the bill of rights


How should the constitution be interpreted

Problems arise that constitution does not expressly consider
Even when there are constitutional provisions, much is written in open-textured language
Commerce between the states
Cruel and unusual

What govt justifications are sufficient to permit the govt to interfere with a fundamental right or to discriminate?
Where to draw the line?

Whether court should recognize rights not expressly considered in the constitution