Select Page

Constitutional Law I
Santa Clara University School of Law
Epperson, Lia

Table of Contents
I.      Attack Sheet3
II.     Powers of the National (Federal) Government5
A.    Judicial Powers. 5
1.     Judicial review and Supreme Court authority (CB 2-21, 26-29)5
2.     The “political question” doctrine (PQD) (CB 31-48)5
3.     Case or controversy requirement, standing, mootness, and ripeness (CB 48-51, 56-71)6
4.     Supreme Court review of state court judgments (CB 71-75)8
5.     Political restraints on the federal courts (CB 75-85)9
B.     Legislative Powers. 10
1.     “Necessary and Proper” clause (Art. I § 8 cl. 18) (CB 89-99, 107-110)10
2.     Commerce clause (Art. I § 8 cl. 3) (CB123-124, 146-148, 150-171, ClaraNet-Raich)10
3.     Other enumerated powers of congress (CB 221-222, 230-235, 238-243, 970-973)13
4.     External Limits on the Commerce Power: State Autonomy, Federalism, and the Tenth and Eleventh Amendments (CB 178-202) [the anti-commandeering principle]15
C.    Federal Limits on State Regulatory Power16
1.     Dormant commerce clause (CB 244-246, 257-263, 269-274, 286-287, 295-305, 311-316)16
2.     Privileges and Immunities Clause (Art. IV § 2) (CB 316-324)21
3.     Preemption (Art. VI § 2) (CB 324-333)23
D.    Executive Powers and the Separation of Powers (CB 344-419)25
1.     NOTE – p. 401 has a list of 3 questions to ask regarding whether the line item veto act violates separation of power principles:25
2.     Executive encroachment on legislative powers (CB 344-360)25
3.     Executive discretion in times of war or terror (CB 360-385)26
4.     Congressional Encroachment on the Executive Power (CB 385-419)28
III.       Individual Rights. 32
A.    Bill of Rights and Post-Civil War Amendments. 32
1.     Pre-civil war application of the Bill of Rights to the states (CB 445-448)32
2.     Privileges and Immunities Clause of the 14th Amendment (CB 448-457)32
3.     Aftermath of Slaughter-House Cases (CB 462-467)33
B.     Substantive Due Process. 33
1.     2 parts of § 1 of the 14th Amendment: economic regulation, SDP. 33
2.     Economic regulation (CB 485-86, 492-513)34
3.     The Takings Clause – 5th Amendment (CB 513-514, ClaraNet – Kelo)36
4.     The Contracts Clause (Art I § 10) (CB 534-544)36
5.     Modern Substantive Due Process for Noneconomic Liberties (CB 544-629)37
IV.       Pages NOT assigned. 43
I.      Attack Sheet
Bases for upholding a federal law:
·        Ennumerated powers of Congress (Art I § 8)
·        Spending clause
·        Commerce clause
·        P&I clause of the 14th amendment
·        Federal property power
Bases for overturning a federal law:
·        Anti-commandeering principle
·        Non-delegation principle
·        Takings clause
Bases for upholding a state law – Police power (any health, safety, welfare, morals, aesthetic interest)
Bases for overturning a state law
·        Supremacy clause (if there is a conflicting federal law)
·        contracts clause (economic due process)
·        dormant commerce clause
·        P&I clause of Art. IV?
·        SDP clause of the 14th amendment
·        takings clause
Justiciability – First do ripeness & mootness, then standing. Standing is only an issue once ripeness and mootness have been satisfied. BUT ALWAYS ESTABLISH STANDING!
Hierarchy of laws
·        Constitution
·        Treaties and acts of Congress (tie) – If there is a conflict between a treaty and an act of Congress, the most recent prevails.
·        Executive agreements and executive orders
·        Executive agreements – Informal means by which the president may conduct day-to-day economic and business transactions with foreign countries. Senate consent is not required.
·        Executive orders – Deal with domestic policy
·        State laws
Standards of review
·        Rational basis – The law is upheld if it is rationally related to a legitimate government purpose; upheld unless it can be shown that it serves no conceivable legitimate purpose or is not a reasonable way to attain the end.
·        Strict scrutiny – The law will be upheld only if it is necessary to achieve a compelling government purpose. Upheld only if the government’s purpose is vital/compelling, and the law is the least restrictive way to accomplish it.
Type of Claim
Standard of review
State interest (ends)
Relationship to law (means)
commerce clause
rational basis
substantial effects (not means/ends)
undue burden
state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
state regulation must be reasonably related to goal of persuading woman to choose childbirth over abortion
dormant commerce clause – discrimination against out-of-state interests
the only means necessary
DP – substantive economic interests
rational basis
rationally related
Lee Optical
DP – substantive non-economic fundamental rights
strict scrutiny
narrowly tailored, AKA tight fit, AKA necessary
liberty interests
(broader than rational basis; liberty interest is balanced against state interest)
rationally related with bite (Lawrence)
DP – substantive non-economic non-fundamental rights
rational basis
rationally related
II.   Powers of the National (Federal) Government
A.     Judicial Powers
1.      Judicial review and Supreme Court authority (CB 2-21, 26-29)
a)      Marbury v. Madison (p. 3) – SCOTUS has the power, implied from Art. VI § 2, to review acts of Congress and if they are found repugnant to the Constitution, to declare them void.
b)      Cooper v. Aaron (p. 26) – SCOTUS’s implied power extended to review acts of States
2.      The “political question” doctrine (PQD) (CB 31-48)
a)      concerns subject matter of dispute; there are certain questions that are political in nature and shouldn’t be decided by the court
b)      6 traditional political question issues from Baker v. Carr (p. 32, 35):
(1)   “a textually demonstrable constitutional commitment of the issue to a coordinate political department” – the Constitution has explicitly vested the question in the executive or legislative branches
(2)   “a lack of judicially discoverable and manageable standards for resolving it”
(3)   “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”
(4)   “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”
(5)   “an unusual need for unquestioning adherence to a political decision already made”
(6)   “the potentiality of embarrassment from multifarious pronouncements by various departments on one question”
c)      prudential concern – resolution of issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties
d)      Categories of cases:
(1)   elections & reapportionment – court has almost always held that cases dealing w/ the Guarantee Clause are political (Luther v. Borden)
(a)    exception – Reapportionment issues are justiciable because they involve the equal protection clause (Baker v. Carr)
(2)   foreign relations (Goldwater v. Carter) – most of the time, the USSC has held that these are political questions. eg.: when a war begins & ends, recognizing foreign governments, ratification of treaties, diplomatic relations, employment of armed forces abroad. upholding the president’s use of executive orders instead of treaties has been found to not be a political question
(3)   ratification of constitutional amendments (Coleman v. Miller) – questions of how long a proposed amendment to the Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were political questions and thus nonjusticiable
(4)   challenges to the impeachment process (Nixon v. U.S.) – court focused on separation of powers, claiming that if the judiciary could oversee the impeachment process, the separation of powers would break down
e)      policy arguments – the nonjudiciability doctrine is as a roundabout way of the court actually deciding whether the other branch of government at issue has exceeded it’s Constitutional authority. If the court feels that they didn’t, it will say the case is nonjusticiable. If the court feels that the branch has exceeded its constitutional authority, it will try the case and order the other branch to change its ways.
3.      Case or controversy requirement, standing, mootness, and ripeness (CB 48-51, 56-71)
a)      case or controversy requirement – Art. III § 2 cl. 1 – lists 9 types of cases or controversies:
(1)   federal law;
(2)   treaties;
(3)   Cases affecting Ambassadors, other public ministers and Consuls;
(4)   Cases of admiralty and maritime Jurisdiction;
(5)   Controversies to which the United States shall be a Party;
(6)   Controversies between two or more States;
(7)   between a State and Citizens of another State (repealed by 11th Amendment);
(8)   between Citizens of different States;
(9)   between Citizens of the same State claiming Lands under Grants of different States;
(10)           between a State, or the Citizens thereof, and foreign States, Citizens or Subjects (suits against states by Citizens or Subject of any Foreign State repealed by 11th Amendment).
b)      The prohibition on advisory opinions (CB 49-50) – an advisory opinion is where there is nothing actually in dispute, thus court doesn’t have authority to rule (because there is no “case or controversy”)
c)      Mootness and Ripeness (CB 69-71)
(1)   A case is moot unless an actual controversy exists at all stages of review.
(a)    Ex: Non-minority law school applicant who is rejected claims an equal protection violation in the ad

ral judicial review
(1)   underlying assumption: the USSC will only hear cases originally brought in state courts after the highest court in the state has ruled on the case.
(2)   applies only to the USSC
(3)   if the judgment from the highest state court is based upon an adequate and independent state ground, the USSC will not hear the case.
(a)    procedural strand – if the plaintiff looses in state court because he failed to comply with a state procedural law, the USSC can also regard the procedural failure as an adequate state ground
(b)   Michigan v. Long – the state court must make it plain and clear that the state ground was independent of the federal Constitution. If the decision isn’t clear, the USSC will assume the state court ruled on federal grounds and thus there is no independent state ground and the USSC will hear the case.
(4)   what to look for: state supreme court holding a law unconstitutional for violating a STATE law
5.      Political restraints on the federal courts (CB 75-85)
a)      Ex Parte McCardle (p. 77) – Although the Supreme Court derives it appellate jurisdiction from the Constitution, the Constitution also gives Congress the express power to make exceptions to that appellate jurisdiction.
B.     Legislative Powers
1.      “Necessary and Proper” clause (Art. I § 8 cl. 18) (CB 89-99, 107-110)
a)      McCulloch v. Maryland (p. 90) – Certain federal powers giving Congress the discretion and power to choose and enact the means to perform the duties imposed upon it are to be implied from the Necessary and Proper Clause. The Federal Constitution and the law made pursuant to it are supreme and control the Constitutions and the laws of the states.
(1)   a state tax on a federal bank is unconstitional. only the federal government can tax all citizens because only in the federal government are all citizens represented
2.      Commerce clause (Art. I § 8 cl. 3) (CB123-124, 146-148, 150-171, ClaraNet-Raich)
a)      Historical commerce clause (CB 123-124)
b)      Pre-1995 doctrine and deferential review: 1937-1995 (CB 146-148, 150-152)
(1)   Wickard v. Filburn (p. 147) – “Congress can regulate purely intrastate activity that is not itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity.” (quote from Raich)
(a)    “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce … irrespective of whether such effect is … defined as ‘direct’ or ‘indirect.’”
(b)   “That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial.”
(2)   Hodel v. Virginia Surface Mining & Recl. Ass’n (p. 148) – “[W]hen Congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational.” Rehnquist’s concurring opinion stated that “Congress’findings must be supported by a ‘rational basis’ and are reviewable by the courts.”
(3)   Heart of Atlanta Motel v. U.S. (p. 150) – “[T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, … which might have a substantial and harmful efffect upon that commerce.”
Katzenbach v. McClung (p. 151) – Congress had a rational basis for finding that racial discrimination in retaurants had a direct and adverse effect on the free flow of interstate commerce and was thus justified in extending the coverage of Title II to restaurants offering to serve interstate travelers or serving food, a substantial portion of which has moved in interstate commerce. Although no formal findings are required, “[t]he absence of direct