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Constitutional Law I
South Texas College of Law Houston
Blackman, Joshua Michael

Josh Blackman

Spring 2014

Constitutional Law

Preamble to the constitution- “we the people”- collective even though we are individuals.

– Constitution doesn’t confer rights on to the people, the rights are inherent.

– 5 types of constitutional argument/ modes of interpretation.

o 1.The constitutions text

o 2. The inferences from the constiutitions structure and the relationship of its provisions

o 3. The historic al purpose underlying a provision

o 4. Precedent or consistent practice that resolves or liquidates ambiguities in the meaning of a provision

o 5. Policy.

Six broad themes of constitution

1) A written constitution

2) Republicanism and popular sovereignty

3) Separation of powers

4) Federalism

5) Individual rights

6) The imperfect congruence of the constitution with justice

SCRUTINY: 3 (all have means and ends) (footnote 4 carolene 1938/kormatsu 1944­) (speech has different scrutiny)

Means: narrowly tailored, substantially related, rationally related

Ends- Compelling govt int, imporatant govt interest, legitimate govt interest

Strict Scrutiny- Race & Religion (suspect classes)(FUNADEMANTAL RIGHTS ALSO)(korematsu/ loving1967/ grutter2003)

– Government action must be narrowly tailored to serve a compelling government interest (very important)

– * usually govt always loses in strict scrutiny, affirmative action is exception.

Intermediate Scrutiny- Gender (quasi-suspect) – this is a weird hybrid of scrutiny (craig v boren 1976)

– Government action must be substantially related to an important governmental interest

Rational Basis Scrutiny- everything else (age included)

– Government action must be rationally related to a legitimate governmental interest. (basically just means not illegal/ its ok if it just doesn’t break the law)

Rational basis plus- (used only for Romer v. Evans 1996)

Constitution – ratified September 1787

Article 1- legislative powers

– Powers of congress are enumerated. (can treaties expand legislative power past limited/enumerated)

– Section 1***- all legislative powers herein granted (this means that allt he other powers are retained by the states and by the people* – USE ON EXAM, DON’T FORGET THE PEOPLE

– Section 7- (presentment clause) bill must pass both house and senate, then presented to prez for signature

– Section 8- necessary and proper clause. Congress powers to law and collect taxes, duties (TAX ALSO)

o Clause 1- tax (congress power to lay and collect taxes/pay duties and provide for the common defence and general weldgare of the US

o Congress shall have power to declare war

o Section 8, clause 3 commerce clause, congress shall hve power to “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

o NECESS AND PROPClause 18- “congress hsall have make all laws which shall be necessary and porper for carrying into execution the foregoing powers, and all others vested in this constitution

§ M’Culloch v. Maryland 1819) – implied not enumerated that there is power to create a bank.

o What does n & P mean (Hamilton (broad) “nessary means convenient” McCullough 1819, Madison (narrow)

– Section 9- habeus corpus

o The imporation clause- migration or importation/ talks about slave trade like it was property

– Section 10- things states cant do, inferred that states are allowed to do all other things.

Article 2- executive power -NOT ENUMERATED, vested (implied powers)

– Section 2- president nominate/ commander and chief clause- exec of military

o Needs advice and consent of senate to appoint (important check on prez power)

o Not every officer needs senate confirmation, interior officers dont

– Section 2 clause 2- TREATY POWER – treaty executing power- president may make treaties that have force of US LAW where consented by 2/3 of the senate. – look down in treaty power section.

– Section 3- “take care clause” – prez must take care that laws are faithfully executed­, also gives power to enforce. – by virtue of his executive power the prez may execute the lawful and control the lawful execution of others. – not rigid/ prez may pardon etc..

Article 3- judicial power

– Section 1- creates supreme court.

– Section 2- supreme court has orig. jur. For all cases affecting…

o Constitution is defining original j .and appellate j.

o See Marbury v. Madison 1803 (JUDICIAL REVIEW)

o Says when a citizen can bring a state to supreme court (chisolm v. Georgia 1793)

– Standing (blah blah blah would have standing uner Article III

Article 4- relationships among states FEDERALISM

– Us shall protext each of the states from invasion, state can ask US govt for help in case of state revolts.

– Section 2, clause 1 privileges and immunities (ALSO PART OF 14TH AMENDMENT)

o Prevents a state from treating citizens of other states in discriminatory manner

o Cant pass laws to discriminate- NY cant require you to have office or live in NY to practice.

– Section 3, new states admitted into the union.

– Section 3- the territory clause – congress hal have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US.

– Section 4- guarantee clause” Guarantee to every state in this union a republican form of govt./ guarantees a representative govt. (texas v. white 1869)

Article 5- procedures for amending the constitution

– Two ways to propose amendments:

o by 2/3rd majority of both house and congress.

o By national convention for proposing amendments, to be called by congress upon application by 2/3rd of the states.

– how to ratify?

o A proposed amendment must then be ratifies by ¾ of the states, either through their state legislatures or through special state ratifying conventions (whatever congress chooses)

o States can petition themselves with 2/3rd of states peritioning congress, then congress is obligated to send to states to ratify.

Article 6- authority of the constitution

– Clause 2- supremacy clause (const. is supreme law of the land)- but its not above the people, the people can change the constitution/ amend. – supremacy of federal law only supreme over state law if congress is acting in pursuance of its constitutionally authorized powers.

– Clause 3- all members of the legislatures and executive officers are bound by oath to the constitution.

Article 7- constitution ratification

AMENDMENTS: bill of rights (first 10- originally only supposed to apply to federal govt)

– 1st amendment – religion, assembly, press, petition, speech.

o Congress shall make no law (1) respecting an establishment of religion, or (2) prohibiting the free exercise thereof; or (3) abridging the freedom of speech, (4) or of the press; (5) or the right of the people peaceably to assemble, and (6) to petition the Government for a redress of grievances.

o 1. Establishment clause – no establishment of religion/state cant establish religion. Has been expanded to symbols/prayers (broad)

o 2) Free exercise- congress cant pass any law prohibiting the free exercise of religion (narrow)

o 3) congress cant limit freedom of speech but can do other things to regulate.

– 2nd – bear arms 3rd- quartering soldiers, 4th- right to privacy/seach warrant or probable cause, unreasonable search and seizure.

– 5th amendment,

o Due process clasue- nor deprived, life, liberty or property without due process of law.

o takings clause “nor shall private property be taken for public, without just compensation” – the government can take your property but they must pay you for it and it must be for public reasons. (Youngstown 1952) (dames 1981) (barron v Baltimore 1833-only to feds before incorp)

o There is a partnership between the branches, all three branches are involved. Congress decides about the property, courts decide if its for public use etc.., Executive branch kicks your ass out.

o Grand jury

– 6th amendment

o Public trial by an impartial jury of the state where the crime occurred. / speedy trial/confront

– 7th- value in controversy, 8th- right to make bail or stay in jail

– 9th amendment (infers unenumerated rights) (rights spelled in constitution are not the only rights)

o Enumeration in constitution of certain rights shall not be construed to deny or disparage other rights retained by the people. (applies to federal only, not to states)

– 10th amendment – scope of federal powers. (powers not delegated to fed are reserved for states)

o the Constitution’s principle of federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people.

– 11th amendment- a citizen of one state cant sue another state in federal court (in response to Chisolm v. Georgia 1793) basically crosses out article III, section 2 out of the constitution.

o Silent about whether a citizen can sue its own state, if silent that means generally you can do it.

– 12th- electors vote separately for prez and vice prez

– 13th amendment – abolished slavery and involuntary servitude except for a crime

– 14th amendment (reconstruction 1868) – (equal protection clause) equal rights, citizenship (southern states had to conform),due process (all persons born are xitizens)

o ONLY APPLIES 2 STATES (state action doctrine) “no state shall” *DOESNT APPLY TO PRIVATE OR FED

o Section 5- gives congress power to create laws in pursuant to the 14th amendment. , not all powers of congress in just article 1

o Section 4- privileges and immunities- No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States (interpreted to do almost nothing) (was meant to bring the whole bill of rights over)

o Equal protection clause- “no state shall deny to any person within its juris the equal p of the laws”

o PLESSY V FERGUSON 1869- separate but equal is fine.

o 14th amendment applied the bill of rights to states SLAUGHTER HOUSE 1873 fucked this up bad, basically eliminated privileges and immunities and shifted e

y adapted to that end are constiutitonal” – necessary y and proper doesn’t enumerate a bank, doesn’t have to. (Hamilton, convenient, all things requisite)

New York v. US (1992)- its in the scope of federal powers/spending section (nuclear waste) FED TAXPOWER SECTION


Bill become law- article 1, section 7,(presentment clause) bill must pass house and senate, then president for signature.

Bicameralism- must pass (BOTH HOUSES)

INS v. Chadha (1983) (how to make a law/ pres veto power)

– Congress tried to veto the att gens determination to not deport Chadha

– Nationalization act gives att gen power to not deport someone if they choose

– Congress passed resolution that Chadha must be deported, overruled by prez

– One house of congress cant veto or overrule a prez’ decision (unconstitutional/ goes against separation of powers)

– Can only override president veto with 2/3rds of the houses vote (supermajority)


– House alone- can bring charges of impeachment

– Senate alone- can try impeachments, ratify treaties and disapprove of appointments.

Clinton v. city of New York (1998) (budgets/line item vetos)

– Line item veto- anc executive can go through a bill and cross out things he doesn’t want to allow, (like cutting things out of spending bill)

– Impounding- if the president is given a specific amount of money to do something, he cant just ignore it all and not do it.

– Transmittal- the prez sends a message to congress saying I don’t want to do these two provisions, then both houses have to pass a disapproval bill to put it back in.

– Shouldn’t change wat legislaters do because they represent the people.

– Can always line item a spending bill (it promotes fiscal conservatism)

– Court said line item act goes against presentment clause (art 1 sec7) so its unconstitutional. Prez can veto and it can pass by supermajority. Generally seen as against sep of powers as well.

o Dissent: breyer (congress gave this power to executive, it doenst directly violate constitution even though it isn’t in there specifically) – interpreted generously

EXECUTIVE POWERS- the appointment power (apply youngstown test to exec powers)

– Article 2 section 2

– Needs consent of senate to appoint *important check on prez power* must have 51 senators to confirm. Interior officer not appointed by senate.

Removal power? – prez has power to hire but what about fire? Noting specifically in constitution says so. Look to other areas of constitution.

– Art 2, sec 3- take care clause- faithfully executed “president has powers vested in them, this is all powers not just some, if someone is not fulfilling his responsibilities prez should fire them under take care clause.

Meyers v. Madison (1926)

– Prez Wilson wants to fire postmaster in Oregon, no reason prez thought he didn’t need one.

– Chief justice taft was once president, he doesn’t see any limitations to prez’ power to remove, (removal power unlimited)

– Dissent justice holmes: congress can terminate position by defunding it, not crazy that congress should have say when they are terminated.

– Holding: prez has exclusive power to remove executive officials without approval of senate

Humphrey’s executor v. US (1935)

– FDR wanted to fire a member of FTC, section 1 of FTC says any commissioner may be removed by prez for 1. Inefficiency, 2. Neglect of duty, or 3. Malfeasance in office.

– FTC is created by congress, prez cant fire them for political reasons

– These administratice agencies are independent, quasi leg and quasi judicial but not executive.

– Prez doesn’t have an interest HOLDING: removal power is limited for “independent agencies”

Morrison v. Olson (1988)

– Saturday massacre, Nixon fired 2 dudes because they wouldn’t fire prosecutor investigating him, 3rd guy said ok.

– Says the prez cant fire an independent council who is the prosecutor.

– Dissent SCALIA: this sis tupid, a prosecutor has purely executive powers, prez should be able to fire.