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Constitutional Law I
South Texas College of Law Houston
Kelso, R. Randall

CONSTITUTIONAL LAW OUTLINE
PROFESSOR KELSO

OUTLINE FOR POSSIBLE QUESTION 1 TOPICS:

I. WHAT JUDGES USE TO DETERMINE MEANING OF CONST.

A. What does the text say?
§ This refers to the actual language of the constitution, such as “to be president a person must be 35 yrs old & born in the USA.
1. look only at the language (words) used in the clause

B. What is the purpose of the text?
§ This refers to the intent of the framers when they drafted the constitution
2. look at the words used and the purpose of the framers

C. Arguments of structure:

1. context- when one places the provision in question in context with others that may work with it to form govt. structure.

2. Federalism- the balance of power b/w fed. and state govt.

3. Separation of power- what did the framers have in mind when they were separating the powers among the 3 branches of govt.

4. Role of the court- what should be the role of judicial decisions

D. History:
· Look at the historical sources to help us understand what the framers had in mind and what they were trying to do with certain clauses
· Did the framers have a specific intent when they drafted the constitution?
· What was the general concept the framers may have aimed at when drafting a constitutional issue?
*this is known as “contemporaneous with ratification”; it refers to what they meant when they drafted the constitution.

E. Subsequent Events
1. Legislative or Executive practice- what have the judges and legislature think the constitution gave them power to do. Have these branches exercised a certain power since the constitution was drafted and has it become known as a power they possess. (i.e. Have presidents always thought they had a certain power and exercised it?) Also, what powers has the legislature uses subsequent to the drafting of the const. ?

2. Judicial Precedent- what have the judges in the past thought about their powers under the const., and what do modern precedents say. History may say one thing, but judicial precedent may hold another. Modern decisions show where the law is moving.

3. Social Policy- this refers to what outcome would be socially acceptable. More of a non-interpretive view, rather it looks to see which reading of the const. Would provide the most socially acceptable outcome. (1954-1986)

MAJORITY APPROACH TODAY:

· We must look at each of the above to determine the outcome of a case that is based on a reading of the constitution.

II. INDIVIDUAL INTERPRETIVE BIASES (decision-making styles)

1. TRADITIONAL NATURAL LAW APPROACH: this refers to the approach that the judges should use precedent to decide cases. The judges should decide what the const. Means and decisions should be from the natural reason applied to the human nature. Judges should pay great attention to the traditions of Anglo-American ways and precedents. (1789-1873)

2. FORMALIST: this interpretation uses the literal text and specific intent of the framers only. They do not like to look at the purpose of the framers, rather the specific intent at the time they drafted. (1873-1937)

3. HOLMESIAN: this view supports a strong deference to leg. And exec. Practices to determine what the const. Framers intended. These advocates do not trust the judicial interpretation based on a judge

after he tried to plead his absolute immunity due to his executive position)

3. It also controls over the state leg. And exec. Branches (Cooper v Aaron, in which the Arkansas state govt. thought they did not have to comply with the Brown v Board decision, they were wrong)

4. It controls over the state supreme courts (martin v hunters lessee)

IV. POWERS OF THE LEGISLATIVE BRANCH (CONGRESS)

A. IMPLIED POWERS: NECESSARY & PROPER CLAUSE
1. McCulloch v Maryland: Congress created a bank, and used the Necessary and Proper Clause to say they had the power.

“Congress shall have the power to make all the laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the constitution…”

· Related Provision Argument: they did not say absolutely necessary like they did in Art. 10, so they did not mean absolutely necessary, rather just useful or convenient.
· The clause was in sect. 8 of Art. I, which grants powers to congress, and does not limit their powers.
· 10th amendment only says the state has the powers that are not delegated to the federal govt. (it does not say expressly delegated, only delegated. So the powers could by implied powers.)
History: framers only turned down the bill of congress creating corporations, this is not a corporation