Select Page

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

Constitutional Law Outline
Spring 2013
The U.S. Constitution
Revolutionary War
1)      King & Parliament didn’t give natural rights of entitlement
Articles of Confederation
2)      Created a Congress with the power to wage war against foreign nations; issue with Indians; Issue with the currency across the states who each basically acted as a nation; No tax or commerce power
Constitutional Convention
3)      Secretly establishes the government function; No bill of rights (Anti-Federalists against it because it gave too much power to national gov’t)
1789 Bill of Rights
4)      All but 2 proposed were passed (2 later become the 27th amendment)
Federalists v. Antifederalists
v  Federalists
Ø  Nationalists, believed in a strong national government
§  Banking/Commercialà Washington, Hamilton, Adams, Marshall, Burr
v  Anti-Federalists
Ø  Believed in a small national government with lots of powers to the states
§  Agrarian (agricultural)à Madison, Jefferson
v  Establishes a national government & separation of powers
Ø  Legislative Power (Article I)
§  Congress cannot pass any law alone; must be necessary and in accordance with the separation of powers
§  Congress becomes the House & the Senate
·         Qualifications of being in CongressàElections
§  Powers of Congress: Tax, spend, regulate interstate commerce, borrow and coin $$
Ø  Executive Power (Article II)
§  Powers of Executive Branch: Commander-in-Chief, Treaties, Appointments, and Veto
Ø  Judicial Power (Article III)
§  Powers of Judicial Branch: Defines cases & controversies between states and the courts can hear them
v  Establishes Federalism
Ø  The federal and state relationship and how they operate
§  There must be a source of authority before acting
§  Any power not legislatively stated goes to the states (police power)
§  The federal law is the supreme law of the land
v  Establishes Individual Rights & Liberties
Ø  Protects citizen’s rights against government interference
Ø  Right to a jury trial (7th amendment)- Does not apply to states
Ø  Prohibition of slavery (13th amendment)
v  Textual: Words and language of the text
Ø  Most important of all modalities because it is explicit
Ø  Limitations
§  Ambiguous
§  Not exhaustive
v  Historical: “Original Intent” of the Framers
Ø  Originalism
§  Original intent of the framers
·         Binds us to the original framers intent
·         Exceptions: too long ago (outdated), multiple conflicting views on the issue
§  Original meaning of terms in the language usedà Apply to current time (Scalia)
Ø  Traditions
§  Individual: using arms against tyranny
§  Collective(for the greater good): Protect the invasion of person rights from the federal government
v  Structural: What the texts shows, but doesn’t say
Ø  How the Constitution is organized
Ø  EX: Separation of Powersà always brings up a structural argument
§  SOP not explicitly stated but the structure of the USC shows the intent
Ø  Limitations: Structure can only be taken so far
v  Doctrinal: Stare Decisis of S.Ct Opinions
Ø  Limitation: Circumstances or facts can change
v  Prudential: Practical consequences behind interpreting the reading a certain way
Ø  Consider the practical consequences, the impact or repercussion of interpreting the USC a certain way
Ø  The is the weakest of all of the arguments
v  Ethical: National Values
Ø  Right v. Wrong; appeal to the moral values of what the interpretation means
Ø  Ties into national traditions (i.e. Declaration of Independence)
Organic Act for D.C. of 1801- Allowed President to appoint Justices of the Peace
Judiciary Act of 1789- Provision allowing the S.Ct to have mandamus jurisdiction; This is unconstitutional because Congress cannot add to the original jurisdiction provided by the USC (However, they can subtract)
Judicial Review- Process where the courts review the constitutionality of government acts (Marbury)
                3 reasons Judicial Review exists:
1.       People accept it

ss, expression, petition, and assembly
Ø  2nd Amendment: Bear arms
Ø  3rd Amendment: Quarter Soldiers
Ø  4th Amendment: Search & Seizure
v  Control
Ø  Are we limited to this text?
Ø  Can we incorporate in natural law?
Ø  What government entities have to abide by these laws?
Article III of the Constitution
v  Powers to regulate Supreme Court Appellate Jurisdiction
o   Separation of Powers concerns
§  Supreme court has too much power
§  Supreme court loses legitimacy(by going out of the bounds of proper judicial controls set by the Constitution)
o   Limitation on Power Restriction to Supreme Court
§  Congress cannot-
·         Tell the Court how to decide
·         Violate Due Process
·         Violate individual rights
v  Establishment and Limitation of Lower Federal Court Jurisdiction
o   Subject Matter Jurisdiction
§  Supreme Court judicial power extends to “cases and controversies” arising under the Constitution- §1332
v  Klein- Congress Limitations
o   2 Congress Limitations
§  Court says Congress cannot impose a jurisdictional rule to interfere with judicial power with respect to being able to declare what the law is
§  Congress must abide by Constitutional requirements
v  McCardle- Effect of Jurisdictional Statute
o   Repeal of new jurisdictional statute is given immediate effect
Judge made rules to implement the “cases or controversies” requirement of SMJ
v  Applies to all federal court cases
v  Standing, Ripeness, Mootness are designed to prevent Advisory opinions
v  All doctrines must be met, even of BOTH parties request review