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Constitutional Law I
South Texas College of Law Houston
Rhodes, Charles W. "Rocky"

Constitutional Law

Spring 2013

Professor Rocky rhodes

South Texas College of Law



Revolutionary War: King & Parliament didn’t give natural rights of entitlement

Articles of Confederation: Created a Congress w/ power to wage war, foreign nations, Indians, coin $. No tax or commerce power

Constitutional Convention, Philadelphia: Secretly established gov’t function. No bill of rights (too much power per Anti-Feds)

1789 Bill of Rights: 2 not passed (later became 27th)

Federalists v. Antifederalists

Federalists: Nationalists, banking/commercial (Washington, Hamilton, Adams, Marshall, Burr)

Anti-Federalists: Small National gov’t, agrarian, (Madison, Jefferson)


1) Establish national gov’t & separation of powers

Legislative Power (Art I)

– Congress can’t pass any law; must be necessary to enumerated powers

– Vested in Congress (House & Senate)

– Qualifications, Elections

– Powers of Congress: Tax, spend, regulate interstate commerce, borrow, coin $

Executive Power (Art II): Commander-in-Chief, Treaties, Appointments, Veto

Judicial Power (Art III): Defines cases & controversies between states the Ct can hear

2) Establish Federalism: Federal & State relationship: What is the appropriate sphere of each?

– Must find a source of authority before acting

– Legislative power not granted goes to state (police power)

– Fed law is supreme law of the land

3) Establish Individual Rights & Liberties

– Protects against gov’t interference w/ rights

– Right to Jury Trial (7th), Doesn’t apply to states

– Exception: Regulate individual conduct by prohibiting slavery (13th Amendment)


1) Textual: Words & Language of the Text


1) Ambiguous (Words not self-defining)

2) Not exhaustive

General: Most important bc explicit

2) Historical: Circs how Constitution Developed (use word ‘original intent’ !!!)

1) Originalism

1) Original intent of the framers

– Binds us to framers intent, uncommon

– Limitations: Too long ago, multiple views

2) Original meaning of Terms: Apply to current time (Scalia)

2) Traditions

– Individual: Using arms against tyranny

– Collective: Protect Fed gov’t invasion of rights

3) Structural: What Text shows but doesn’t say

– How the Constitution is organized

– EX: Separation of Powers (always structural arguments-structural inferences)

– Separation of powers not explicitly stated

– Limitation: Can only take structure so far

4) Precedent/Doctrinal (Stare Decisis of Ct opinions)

Limitation: Circs may change

5) Prudential: Policy/Practical

– Consider impact, ramification, repercussion

– Weakest

6) Ethical: Ethos/National values

– Right vs. Wrong, appeal to moral values/dignities

– Tied to national traditions (EX: Declaration of Independence)

– Opinion polls are weak




Organic Act for D.C. of 1801 – President could appoint justices of the peace

Judiciary Act of 1789 – Provision for mandamus jsd in SupCt

– Unconstitutional bc Congress can’t add to original jsd given by Constitution (but may subtract)

Judicial Review – Process by which Cts review the constitutionality of gov’t acts (Marbury)

3 Reasons Judicial Review exists

1) People accept it

2) Original idea of Ct was judicial review


Political Question Doctrine – To what extent can SupCt regulate Exec & Legis branches?

1) Constitution is regulatory & provides meaningful restrictions on gov’t

2) Congress can’t increase Ct jsd beyond constitutional boundaries (original intent)

3) Cts can compel ministerial executive actions (duty to review individual rights)

4) Ct can review constitutionality of legislation

5) Establishes SupCt power of judicial review to ensure constitutionality of Exec & Legis actions. ‘Arises under’ Const !!!


Background (Martin v. Hunter’s Lessee)

Structural: SupCt can review state Ct decisions & regulate states bc Constitution is Supreme law (Art III)

Textual: SupCt has AppJsd over all cases, including State Ct cases

Prudential/Policy: Ensure uniformity & state parochial interests (prevent forum-shopping)

Holding: SupCt establishes authority to review state Ct decisions

Adequate & Independent State Grounds Doctrine (MC)

– State Ct judgment that’s supported by adequate & independent state grounds can’t be reviewed by SupCt !!!

Adequate: State grounds support the holding aside from SupCt’s review

– Outcome-determinative bc doesn’t violate FedLaw

Independent: When state has adequate grounds to decide case à No SupCt power bc would be advisory opinion

Plain Statement Rule

– Presume no adequate & independent grounds unless plainly stated by Ct

– State Ct decision can’t rest only on FedLaw

– EX: “the case can’t be reviewed based on adequate & independent state grounds”

– SupCt limitation to review State Ct judgments. If there are both state & Fed issues in same case !!!

– Reporter called to testify but refuses. Argues 1) TX Reporter Shield § & 2) 1st Amendment


Constitutional Amendments

Rights in the text of the Constitution: Habeas Corpus, Ex post facto, Bill of attainder

Bill of Rights

1) Congress shall make no law… press , speech, establishment, free expression, petition, assembly

2) Bear Arms

3) Quarter Soldiers

4) Search & Seizure

Are we limited to things in the text?

Can we incorporate natural law, etc?

What gov’t entities have to abide by these rights?

– Expedited habeus proceeding to get case to SupCt faster àno longer applicable

Ct Appointments

Impeachment – Senate can reject SupCt nominees (1/4 rejected) !!!

CONGRESS’S POWER (Limitation à Mentiona Art III !!!)

Some Power to regulate SuppCt AppJsd !!!

Separations of Powers Concerns

1) Ct. has too much power

2) SupCt loses legitimacy (by going out of proper judicial controls)



1) Close relationship bw π & asserted 3rd party rights &

– π is a party to their constitutional rights & desire same result

2) Obstacles to 3rd party bringing their own claim

– π will represent 3rd parties interest

– Bartender sues to let men buy drinks in female-only bar à 3rd party standing allowed

– Mother files appeal for son on death row à Not allowed. Adult son can file

– Jim broke covenant & sold house to Jew & asserts their rights à 3rd party standing allowed

– Dr. provides abortions & sues Medicaid for coverage à No Standing. Misalignment of interest (Dr. wants $)

3) RIPENESS – Makes sure suits not brought too early !!!

Party may seek pre-enforcement review of a § or regulation when:

1) Likelihood policy will be enforced against a person?

– Fit for Review: Almost certain § will be enforced & only impediment is delay !!!

2) Present harm or injury if review denied?

– Substantial hardship in the absence of judicial review !!!

– Sanctions for noncompliance or giving up rights

3) Need further factual development?

– Will Ct benefit from further development?

– Allow concrete facts to arise

– Declaratory judgment not concrete


– Ripeness & Standing have a lot of overlap Mention on Exam !!!

– Ties in w/ ‘Actual or Imminent’ from Injury-in-fact

– Opposite of mootness

– May have standing, but not ripe

– Not ripe & no standing àAdvisory opinion

– Student sues STCL for picketing policy resulting in arrest

– Doesn’t picket à Not ripe, might not happen

– Pickets & gets sent to jail à Ripe, occurred

4) MOOTNESS – Makes sure suits not over/injury ceased !!!


– Had standing (concrete facts existed) !!!

– Standing must continue through whole controversy !!!

– May occur at any time in the appellate process (flexible)

– Controversy ends & won’t reoccur

– Policy: Conserve judicial resources (but may conserve more resources to decide, esp if on appeal)

– Settled, law repealed/changes, π dies

– Complies w/ Ct order if no possibility the bad conduct will resume if lifted


1) Capable of repetition, yet evading review­

1) Same π

2) Likely harm will reoccur (reasonable expectation subject to same action)

3) Unable to resolve bc of short duration (likely to always be moot before litigation)

2) Class Actions

– Reasonable chance they’ll resume bad conduct (∆ has high burden of proof)