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Constitutional Law I
SUNY Buffalo Law School
McCluskey, Martha T.

Introduction to Constitution and its Interpretation
Approaching Constitutional Law Questions
Preliminary Step – Consider whether the relevant court has jurisdiction to consider the constitutional issues.  Does the judicial branch have the power or is it limited?
Next Step – Decide State or Federal?
FEDERAL ACTIONS – look for (1) A grant of power in the Constitution (articles or amendments) (2) Limits on that grant of power in the articles or amendments.
STATE/LOCAL ACTIONS – look for (1) Explicit Constitutional prohibitions on state power in the articles (internal constraints) (2) Explicit grants of exclusive power to Congress (3) Implied limits derived from grants of power to Congress (4) Congressional preemption of state power to regulate (5) Limits on the states from the Amendments (external constraints)
Types of Arguments
Textual Arguments – looking at the words of the Constitution as we understand them to mean today.
Structural Arguments – refers to the way the Constitution is organized (separation of powers, government vs. individual, federal government [affirmative grant of power] vs. the states [plenary power] Original Intent – framing language of Constitution in historical context, based on framer’s intent (Federalist papers, etc.)
Precedential Arguments – relying on precedent, holdings of the cases can be interpreted narrowly or broadly.
Prudential Arguments – practical concerns and the impact that the decision would have on court/political system.  These are like policy considerations.  
Fundamental Ideology – natural laws; economic; bible; universal human rights; social Darwinism.
Supreme Court Historical Periods
Founding – from Articles of Confederation to the US Constitution.  Move was done to form a stronger national government with more centralized powers. 
Civil War & Reconstruction Amendment – war was fought in part over the role of government and individual rights.  13th, 14th, 15th amendments are the reconstruction amendments.  They represent not just an addition to the constitution but a fundamental rethinking of the relationships between the individual and state.
New Deal (1937) – 1930s great depression.  Economic and political crisis.  Involved a rethinking of the federal gov't in relationship to the states.  The rise of the administrative state. 
Warren Court Period (1950s and 1960s) – dramatic change to relationship between individuals and government.  Many people call this the second reconstruction and that the first reconstruction failed and that it was not successful until this period.
          Rehnquist Court & Roberts Court – planted the seeds for new revolution.
McCulloch v. Maryland (1819) p 101
ISSUE #1 Does the federal government have the power to incorporate a bank? Held – YES. The constitution gives congress broad discretion to carry out the means to carry out its broad enumerated powers (implied enumerated powers also exist).  (structural arg) Significance – (a) doctrine of enumerated powers (b) doctrine of implied powers (c) necessary and proper clause (any appropriate means to achieve the ends)
Textual Argument – Constitution says that Congress has the ability to make laws that may be “necessary and proper” to carry out their powers.  The court determined that (1) The clause is placed among the powers of congress, not among the limitations on those powers (2) its terms purport to enlarge, not to diminish the powers vested in government.  It is an additional power not a restriction on those already granted. The necessary & proper clause should not be cited by itself; Structural Arguments – Marshall talks about the power of the people.  If we give the federal gov’t some implied powers we are not encroaching on the state power, we are enlarging the power of the people.
ISSUE #2 If the federal government has the power to incorporate a bank can the state tax the bank?  Held – NO.  The state cannot tax the bank because states can do anything as long as the constitution doesn’t forbid it.  
Structural – popular sovereignty; the state can’t tax the federal government because it would be like taxing the people of other states;
Textual – Article VI says federal government is supreme (“Constitution shall be the supreme law of the land”)
**TIP:  REMEMBER that the Necessary and Property Clause, standing alone, cannot support federal law.  It must work in conjunction with another federal power.  Thus, if an exam question involves the source of power for a particular congressional action, be sure to discuss one of Congress’s enumerated powers before discussing the Necessary and Proper Clause.
1. Judicial Review – Article III, Section 1 of the Constitution creates only one court, and leaves it up to Congress to establish the others. 
Marbury v. Madison (1803), pg 2
Facts – Jefferson refuses to honor commissions that Adams made but never delivered. Significance – establishes the power of judicial review.  The constitution does not expressly provide that the judicial branch has the power to hear appeals regarding the constitutionality of acts of other branches of the federal government
ISSUE #1; Is the Judiciary Act's authorization of the Supreme Court's writ of mandamus constitutional? Held: NO.  The federal Judiciary Act is not constitutional because it gives the Supreme Court new original jurisdiction which is contrary to Article III’s.  (textual)
ISSUE #2 Can the Supreme Court invalidate an unconstitutional federal statute? Held: YES.  The Supreme Court rather than the legislature had the power to interpret federal laws and determined whether they conflict with the Constitution.  The constitution must be more powerful than federal statutes or else the constitution would have no power.  (structural)
Martin (1816) & Cohens (1821) – establish that the constitution presumes that the Supreme Court may review laws/decisions of the states. 
2. Limitations on Judicial Powers
External Limits (power to other branches)
Constitutional Amendment (if you don't like what the court does, make an amendment to change rule); Appointment power (product of the electorate); Impeachment; Supreme Court follows the election returns? (pressures from elections to see if public will approve); Congressional control over Jurisdiction (Supreme court selects cases to review from the pool that Congress sets out for them)
Internal Limits (Article III)
Jurisdiction (Article III)
Subject matter jurisdiction (federal or diversity);
Original jurisdiction: states as parties, foreign officials, Ambassadors;
Appellate jurisdiction: Ex Parte McCardle
Case or Controversy Requirement (Article III)
Standing: elements (1) Injury – need a plaintiff who has been injured (2) Causation – Fairly traceable to unlawful gov't action (3)Remedy – Redressable by judicial action;
Ripeness – not too soon;
Mootness – not too late (pg 73) Moore v. Ogilvie – Problem was “capable of repetition” need for resolution reflects a continuing controversy in the fed/state area; Roe v. Wade – the termination of her pregnancy did not render her case moot; Class action cases generally do not become moot.
                                    Prudential Concerns
Prudential Standing Requirements – (1) no third party harms (2) no generalized grievances based on taxpayer status (3) “zone of interest” requirement (Allen v. Wright)
Political Question Judicial Doctrine – decisions are sometimes just not practical.  Court cannot as a matter of proper function resolve some issues. 
Baker v. Carr (1962) – Case brings out question of apportionment of assemblymen.  (Gerrymandering of districts)  States were reluctant to adjust their district lines for political reasons SIX PART TEST for what counts as a political question.  (1) textual commitment to another Constitutional branch (2) lack of judicially discoverable standards (3) impossible to decide w/o initial non-judicial policy decision (4) impossible to decide w/o respect other branches (5) unusual need to adhere to existing political decision (6) potential for embarrassment due to conflicting pronouncements from different branches.  
Powell v. McCormack (1969) – court interpreted text of Constitution to determine whether Congress could decide on who could take office.  Court decided that it was not a political question because the court not congress decides the constitutionality of things. Court was structurally concerned that if congress was given the power to determine if it would seat elected officials, it would allow congress to override the democratic process.
Bush v. Gore (2000) – doesn't detail political question doctrine. Court says it is not interpreting constitution for political reasons but under the equal protection clause about having every vote counted or not.
**Note when the court is deciding “not to decide” and when it decides to “decide on the merits”.  What does that mean in terms of precedent?  Refusing to decide may have less weight than dismissing case on merits (may set precedent court doesn’t want to set).
1. Historical Development of Commerce

ns valid under Commerce Clause. Held: SC upheld Act b/c discrimination has an effect on interstate commerce (impedes interstate travel)
Katzenbach v. McClung (1964)  pg 141 – Ollie’s Barbecue (family restaurant) violated Civil Rights Act by refusing service to black customers – restaurant subject to the commerce power b/c it served food that had moved in interstate commerce.
ISSUE:  Can Civil Rights Act, prohibiting discrimination in public restaurant   receiving $70,000 worth of food which has moved in commerce a valid exercise of congress? Held: SC held that this discrimination had same effect as discrimination in the   Heart of Atlanta case (i.e., to dissuade blacks from interstate travel) and held that Congress had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the flow of interstate commerce
Perez v. United States (1971)  pg 143 – SC upheld criminal conviction for loan sharking under the commerce power despite its unclear connection to interstate commerce – court reasoned that even though loan sharking is a local crime it is supported by a network of crime at the national level and thus affects interstate commerce
2. Current Commerce Power Doctrine – Note: The Cases below present a debatable area of law, where from 1995-2004 it seemed the Court was limiting Congress’s authority under the commerce clause, but then appears again to be expanding it in Raich (2005). None of the earlier cases are overruled by the modern ones below.
US v. Lopez (1995), pg 153 – Gun Free School Zones Act of 1990 makes it a crime to knowingly possess a gun in a school zone. Significance – Modern commerce case that lays out the current rule of how Congress can regulate commerce “among the several states” and illustrates the factors necessary for something to substantially affect interstate commerce.
Rule – Three Activities May be Regulated Under the Commerce Clause: (1) use of channels of interstate commerce (2) instrumentalities of interstate commerce or persons or things in interstate commerce OR (3) Activities even if intrastate that SUBSTANTIALLY AFFECT interstate commerce.
3 Factors to determine if an activity substantially Affects Interstate Commerce (One or All may be used to justify the Substantially Affects Test):
Is it economic? In general, does it affect supply and demand; is a private place a place of public accommodation; Example: Raich and Wickard that look to the aggregate effect on the economy.
Does the statute have a jurisdictional element? In general, the law must be drafted to touch individual people and touch each individual case
What do the Congressional finding say? In general, it is never enough on its own to meet the substantial affects test. Earlier cases (pre-Lopez) used a rational basis and deferred to Congress’s judgment that if Congress felt it had an affect on interstate commerce, then the law would be constitutional. Lopez says that Congressional findings are not enough on its own and abandons the rational basis test to determine if something substantially affects interstate commerce.
HELD – GUN Act does not substantially affect interstate commerce. Court distinguishes from Wickard and says that gun activity on schools cannot affect interstate commerce the way grain does. (Precedent) There is no evidence presented by Congress to support their law. Court does not adopt Government’s arguments that this regulation is needed because it will affect all of the states because of slippery slope reasoning that if the court accepts this then there will be no limits to what Congress can regulate. If Congress has this power, then we will never be able to tell the difference between what is national and what is truly local. (structural)