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Constitutional Law I
Temple University School of Law
Reinstein, Robert J.



· Dist. Ct. Judge or his law clerk à focus on analysis in reference to cases that have contemporary validity/good in current law (e.g. Subs. DP case: doesn’t want to here about Lochner; Commerce Clause case: doesn’t want to hear about pre-1937 overruled cases)

o Doesn’t want historical evolution of history of commerce clause

· Q could be asking “How might this case have been decided in 1936” or give a historical analysis of the evolution of ____

· Supreme Ct. Justice (maximum flexibility)

o Analyze case according to current doctrine OR be like Thomas and say, e.g., everything since 1936 is wrong (but make sure you have an explanation)

· Lawyer for one of the sides

o Can’t just think about arguments YOU would make… also think about WEAKNESSES/PROBLEMS with your side

o Give client objective advice on what you think chances of prevailing would be.

Models of Government:

Provincial Model:

● National government can pass any laws that the constitution allows, has control over external relations, and has control internally (namely, it can pass laws that operate directly on individuals)

● Rejected by U.S. framers because of existing State identities

Treaty Model:

● Congress/National government only possessed external powers; Internal powers left to the States themselves as sovereign entities

● Articles of Confederation: Congress had no powers directly on individuals

○ Taxes: If Congress needed money, it had to issue directive to states, who could tax their people.

○ No need for National Executive OR Judicial branches of government, because the States had enforcement authority.

Federalism: (See 10th Amendment)

● State sovereignty is retained

○ Separates power to protect against tyranny of a centralized gov’t

○ State power allows for diversity (e.g. same sex marriage is allowed is some states & prohibited in others)

○ States can pass laws without getting permission from the national government

○ State law is unconstitutional if affirmatively prohibited by the Constitution

■Otherwise, legality lies in State constitution

● Federal Sovereignty

○ Purports uniformity which is important in international settings

○ Article 1, Sec. 8: Congress’s enumerated powers

○ Scope of authority: Is the law authorized by the Federal Constitution?

■(Issue on the healthcare law/mandate)


Functionality of the Constitution

1. Establishes the structure of the federal government

● Power is separated within the federal gov’t for checks and balances

● Why was the separation of states insufficient mechanism for the checks and balances system?

○ Federal gov’t is needed to conduct foreign policy

■National Defense

■Speaking in one voice (through treaties, national currency that facilitates commerce/trade, consolidates precious national resources

2. Orders the relationship between the nat’l & state gov’t

● Cultural differences exist in the different states

● Different states have different needs and preferences that need to be serviced by the gov’t

3. Bill of Rights ensures the PROTECTION OF INDIVIDUAL RIGHTS

● Articulates restrictions on how the gov’t relates w/ individual citizens

● This emphasis distinguishes U.S. from other systems of government

○ Other systems of gov’t do not see individual rights as being worthy of such institutional protection

Why we use the Constitution (as opposed to statutory law)

● Because of the lengthy litigation to amend the document it is difficult to change therefore any changes that are made are not short term which helps promote national stability

Theories of Interpretation

○ The ability for the judiciary/executive/legislative branch to interpret the Constitution

■As reactions to prior cases

■In order to clarify ambiguities

■To change a national attitude (e.g. repeals)


● Textual Originalism

● Framers’ Specific Intent

● Framers’ Abstract Intent/Moderate Originalism [Scalia, Thomas…: interpreted through historical evidence – text and practices at the time Const. was ratified; Const. should only evolve through amendment]


● View the Const. as a living document [Permissible for Court to interpret Const. to protect rights not expressly stated or clearly intended; Const. meaning may evolve by amendment AND interpretation]

● Emphasis of using the Const. as the gov’t tool to protect individual rights

● Legal Realism: the law exists to serve social ends (forget originalism… it’s all about justice and promoting certain policy ends; they should be reached by whatever means necessary without completely foregoing the framework provided by Const.)

● Some critical legal studies analyze tacit assumptions in legal decision making from a specific point of view

○ Critical Race Theory: how the legal system operates to promote racial dominance/inferiority

○ Feminist Theory: No unified theory has been established

○ Post-Modernism: THE ANTI-theory; no truth exists in gov’t


The Federal Judicial Power

The Power of Judicial Review:

● Hamilton (Federalist No. 78): “A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act from the legislative body. If there should happen to be an irreconcilable variance between the two… the constitution ought to be preferred to the statute…”

● (Not established in the Const., so) Marbury v. Madison (1803) establishes the authority for judicial review of both federal and executive legislative acts

○ Judicial Review = power of Court to review acts of Congress and the Executive Branch and declare them void as contrary to the Constitution

■Start with presumption that a statute is constitutional (i.e. If a statute or act can be read consistently with the Const., then that reading of the statute or act should be adopted)

● Const’lty depends on the court’s reading of Article III

○ How does the court justify judicial review of executive actions and, according to the court, when is such judicial review available/unavailable?

■Political/Discretionary acts vs. Legal Acts

● No judicial review for executive discretionary acts

● Judicial review for legal acts (“where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”)

○ Why does the court find the Judiciary Act of 1789 unconst’l?

■[Marbury: Marshall wants to maintain the checks and balances structure of our federal gov’t by declaring the Judiciary only has the power to review law, and the power to make law remains w/in the other branches. He therefore finds the Act unconstitutional because of its overbrea

resents a permissible legislative response to a serious, indeed life-threatening, problem.” [27]

○ Scalia’s Criticism: The use of a balancing test here is erroneous and misapplied because if a rule can be clearly interpreted through a textual analysis, then it is a bright line directive. Clear text-based interpretation → allows the Court to do its job by simply applying the rule to the pertinent set of facts in order to determine whether or not the rule is violated.

○ Breyer’s Interest-Balancing Inquiry inevitable (balance personal interest against state interest)

■Deems DC measure = proportionate response to compelling concerns that led the District to adopt it (passes strict scrutiny?)

● Private self-defense interest in maintaining loaded handguns to shoot intruders is “at most a subsidiary interest” sought to be served by Second Amendment

● Law is limited to the problem it attempts to address: HANDGUNS

○ Totally urban in scope → “tailored to the life-threatening problems it attempts to address”

(See Alexander Bickle’s “The Least Dangerous Branch”)

● Judicial review is a legitimizing process because it provides a separate forum for review

○ but is by nature undemocratic because it is a counter majoritarian principle

● Judicial Review provides Justices with the ability to:

○ Deny/affirm the validity of majority principles

○ Give voice to an unrepresented minority

○ Deliberate on unpopular issues without fear of public backlash (appointed t the court not elected by the public)

○ Educate and inform the public through their opinions

○ Bolster an act of Cong. by not striking it down. Upholding a statute effectively legitimizes it. l

The Federal Legislative Power

Congress can only act when there is express/implied authority in the const’l

● States can act unless the const’l says otherwise (prohibits it)

2 step process: to figure out if act of Congress is const’l

1. Does Cong. have the authority under the const’l to legislate (look at Article I, §8)

2. If so, does the law violate another const’l provision or doctrine by infringing on separation of powers or interfering w/individual rights

Relationship with State Power:

● “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” [McCulloch v. Maryland (1819)]

● Necessary and Proper Clause

○ Art. I, § 8: Congress shall have the power… “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

○ Court defines “necessary” broadly: