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

Reinstein, Constitutional Law, Spring 2012
EXAM TIPS
-read question carefully, write outline of answer, identify issues (can be more than one issue in a question), master the facts, think about what you’re asked to do (If Sup. Ct. justice, more freedom of action than if D.C judge (bound by precedent); identify precedents, think about facts & how they apply; as DC judge, may have prob. not resolved by Sup. Ct. & have to decide how to resolve)—if clerk, can tell judge, this is approach certain case took & that’s how it should be viewed here
-first identify all the issues presented and determine if there are cases directly on point and if not how you approach it, what std of review to apply
-pay attention if asks what strongest conclusion after analysis
-pay attention to weights of questions to determine how much time to allocate
-Re: cases that have been repudiated (e.g. Commerce clause, Lochner):  can say if you rule this way it reminds me too much of X which has been repudiated so we shouldn’t rule that way; would be relevant if asked a historical question; could ask question about whether you agree with certain approach (e.g. whether originalist is correct approach to interpret constitution)

-re: scrutiny: more committed you are to strong nat’l gov. more inclined to use rat’l basis test, more committed to states rights, more inclined to use higher scrutiny

-subject gender classification to intermediate scrutiny b/c usually doesn’t have anything to do w/ gov. power—in statutory rape case, says gender not irrelevant, only girls can get pregnant & therefore only subject to boys—Rotsker—b/c of exclusion of women from combat, since purpose of draft is to draft ppl for combat, men & women not similarly situated
-Glucksberg took same approach as Bowers —2 criteria, is this right that has been traditionally been protected & then defining right narrowly
-Lawrence defines right in very broad terms & also says history is starting point not ending point, things change in country—if Kennedy had said, this is like Griswold & Eisenstadt re: privacy in home & it’s a fundamental right & statutes stopped being enforced a long time ago, not top priority now—if fundamental right, need state interest, state interest no different than in Griswold & Eisenstadt, still same conduct, just by ppl majority doesn’t like—can apply to Glucksberg & get same result—approaches in Lawrence & Glucksberg are irreconcilable b/c one looks at constitution as static & other says times changing & listing of rights in Constitution came from experience of framers, can’t predict future (McCulloch), should entertain idea that new rights & new violation by states







I.  Basic Principles
A. The Constitution and Judicial Pwr
B.  Judicial Review of the President and Cong.
1. General
a. Marbury establishes authority for judicial review of both fed. executive & legislative acts
1. Marbury v. Madison (1803)
a. General
i. establishes authority for judicial review of both fed. executive & legislative acts
ii. Adams nominated justices, several commissions not delivered before Jefferson’s inauguration, Jefferson instructed Madison to withhold undelivered commissions, Marbury’s was one of them (appointed justice of the peace)
iii. Marbury files directly w/ Sup. Ct. for writ of mandamus, petition to a ct asking it to order a gov. officer to perform a duty (wants ct to order Madison to do his duty under the law to deliver the commission confirming apt as justice of the peace)
b. 3 Issues: 1) Whether Marbury has right to commission? Yes, J & M violated right (entitled to commission under Art. 2)—appointment is made when commission signed by Pres., commission complete when US seal affixed by Sec. of State, to withhold commission is violative of vested legal right
2) Does he have remedy? Yes, writ of mandamus (Sup. Ct. can order Sec. of State to give commission b/c if Marbury’s rights were violated ct must be able to rectify or else gov. could violate rights w/o remedy for injured party)
3) Is mandamus appropriate from this ct? No, Sup. Ct. no jurisdiction to decide this case—Sup. Ct. only has appellate jurisdiction, mandamus is action for ct w/ orig. jurisdiction
c. justice of the peace= lowest position—handle summary offenses, not fed. judges
d. Marshall was Sec. of State & Chief Justice when this occurred—politically, had no choice but to deny Marbury relief b/c Jefferson administration would have refused to comply w/ ct order to deliver commission; real possibility Jefferson might seek impeachment of Federalist justices in attempt to gain Republican control of judiciary
e. Madison ignores the proceeding—Sup. Ct. couldn’t have done anything b/c Jefferson told him not to issue writ & Jefferson was Pres.
f. if Sup. Ct. holds Sec. of State in contempt, no way to enforce at time & Sup. Ct. would have to back down
g. Marshall doesn’t just say no jurisdiction, actually decides & gives lecture but says doesn’t have jurisdiction—doesn’t order Madison to do anything (tells J Sup. Ct. has pwr over him, can declare things unconstitutional but still can’t order Madison to do anything)
h. Pres. nominates, approved by Senate (Art. 2)
i. Jefferson argues judiciary has no pwr to compel, ct. says necessary & proper clause allows to review executive action—separation of pwrs—nothing explicitly gives Sup. Ct. pwr to order Pres.—doesn’t agree w/ interpretation of Constitution that gives that pwr
j. Cong. passed Judiciary Act to allow ct to grant writ of mandamus & Pres. supposed to enforce that (Art. 2)—Marshall says if ct didn’t have pwr to command Pres, no longer have gov. of laws but gov. of men
k. Art. 2 §3
-Is “shall” discretionary or a duty of the President?
-ministerial function (Marshall interprets that way too) b/c “may” seems to be discretionary
-Jefferson argues he doesn’t have to sign commission & that it’s discretionary pwr & that he can fire Marbury even if given commission
-Marshall says Madison shouldn’t have right as Sec. of State to decide whether he violated law—makes distinction bet. discretionary & ministerial decisions (could not question if discretionary, would hold him to duty if ministerial)
l. Marbury relies on Organic Act that states that he shall hold position for 5 yrs (different than Sec. of State b/c SS doesn’t get appointed for term, can be fired at any time)
m. Pres.’s pardon pwr was great tool if insurrection b/c it wouldn’t turn into civil war—could offer pardons to rebel leaders & divide group of insurgents—opposition to pardoning pwr was if Pres. is insurgent he would be pardoning himself—Pres. can’t pardon ppl who have violated state law, only offenses against US
n. Marshall says that judicial dep. has duty to say what law is & those who apply rule must interpret
o. Marshall treats Madison as individual b/c subject to a legal duty (doesn’t treat him as Sec. of State)
p. first time Sup. Ct. said can order cab. official to do something & questions Pres.’s duty
q. Marbury loses b/c Sup. Ct. doesn’t have original jurisdiction (Art. III §2, Cl. 2)—previously interpreted to include foreign diplomats, not domestic ministers
r. Judiciary Act
-multiple interpretations, 2 clauses
-interpretation #1: if appellate jurisdiction, here are remedies you can issue
-interpretation #2: 1st cl. grants appell. juris., 2nd is separate, grants orig. jur.
-if Marshall’s interpretation is correct, statute is unconstitutional
s. Marbury should have started at lower ct, not directly at Sup. Ct.
t. Marshall says Constitution is superior to act of Cong., if Cong. has pwr to override Constitution, Constitution means nothing—when law & Constitution both apply & they conflict, must choose Constitution b/c Constitution is superior
u. judges decide in absence of legislation but once there is statute, that trumps common law
v. Marshalls Arg.
1) Is judicial review in the text of the Constitution?
-Art. VI,  Cl. 2 & Art. III §2
2) Marshall’s theory:
-in a case before it, ct must decide according to the law
-if two laws in conflict, ct must choose which to apply
-Constitution is superior to any other law
-therefore if there is a conflict bet. Constitution & a statute of Cong., ct. must apply Constitution & disregard statute
w. 1) How does the Court justify judicial review of executive actions & when is such judicial review available & unavailable?
-distinction bet. areas in which there are individual rights, and therefore gov. duties, and those in which the executive has discretion as how to act
-judicial review available when gov. duties, not available when discretion (only political process is check on executive branch)
2) Why does the Court find the Judiciary Act of 1789 unconstitutional?
-Cong. can’t expand original jurisdiction of Sup. Ct.
-Art. III authorizes maximum jurisdiction of fed. cts, Cong. can’t authorize fed. cts to hear cases beyond what is specified in Art. III & fed. cts can’t gain jurisdiction by consent
3) How does the Court justify judicial review of legislative acts?
-declares provision of Judiciary Act of 1789 unconstitutional which Court interprets as authorizing Sup. Ct. to exercise mandamus on orig. juris.
-duty of judicial dept. to say what law is, if law & Constitution apply, Constitution trumps
x. necessary and proper clause applies to pwrs granted to legislative, exec, and judicial branches
y. judicial review = supremacy clause + appellate jurisdiction




C. Review of State Courts
1. Martin v. Hunter’s Lessee (1816)
a. Martin claimed title to land in VA inherited from British citizen, Hunter claimed VA took land before treaties protecting rights of British citizens to own land took effect & Martin had no claim to prop.; VA ct of appeals ruled in favor of Hunter, Sup. Ct. reversed saying fed. treaty controlled, VA Ct. of Appeals claimed Sup. Ct. lacked authority to review state ct decisions
b. Holding:  1) Constitution creates Sup. Ct., gives Cong. discretion whether to create lower fed. cts (Art. III); if Cong. chose not to establish them, Sup. Ct. would be pwrless to hear cases except those in its orig. jurisdiction unless it could review state ct rulings
2) Constitution based on recognition that state attachments, prejudices, jealousies, interests might sometimes obstruct or control regular administration of justice
3) Sup. Ct. review is essential to ensure uniformity in interpretation of fed. law
c. arises under fed. law b/c one side claiming land under treaty of US

2. Cohens  v. Virginia (1821)
a. Brothers convicted in VA of selling lottery tickets in violation of VA law, claimed Const. prevented prosecution for selling tickets authorized by Cong.; VA argued Sup. Ct. no authority to review state decisions & review not allowed in crim. cases where state gov. was a party
b. Holding: Crim defendants can seek Sup. Ct. review when claimed conviction violated Constitution
c. Sup. Ct. explained state courts often could not be trusted to adequately protect fed. rights b/c in many states judges dependent on will of legislature for office & salary
d. 11th Amend. doesn’t bar Cohens from suing b/c case brought by VA against Cohens originally & Cohens appealing—11th only refers to bringing suit—Chisholm sued GA on debt, GA says clause in Art. III intends suits by states not to sues states, 11th Amend. passed
e. these 2 cases make Sup. Ct. final decision maker on all fed. law; on meaning of state law, state’s highest ct. has final say
f. if state law challenged under supremacy clause, Sup. Ct. reads as interpreted by highest state ct—supremacy clause kicks in when state law seems to conflict w/ Constitution or fed. law or treaty—fed. law prevails as long as it is constitutional—if conflict bet. fed. law & treaty, as long as both constitutional, whichever came last trumps

D. Principles of Federalism
E. Federal Legislative Pwr
1. Cong. and the States
a. Cong. may act only if there is express or implied authority in Constitution (Art. I)
i. To evaluate constitutionality of any act of Cong.:
1) Does Cong. have authority under Constitution to legislate?
(Enum. pwrs Art. 1 §8)
2) If so, does the law violate another constitutional provision or doctrine?
b. states may act unless Constitution prohibits action (10th Amend.)

c. McCulloch v. Maryland (1819)
i. debate over bank of US, 80% private (mostly British investors), 20% US owned (board of directors elected by stockholders & appointed by US); charter expired in 1811, bank dissolved during Madison presidency (declared bank unconstitutional); War of 1812, in 1816 Madison recreated bank;  many states thought bank’s monetary policies (loans to ppl not good creditors) creating issues & depression, bank demands $ & forecloses; states upset esp. b/c competing w/ state banks, MD taxes bank (only applied to this bank—any bank not chartered by state of MD)
ii. Holding: -The Necessary & Proper Clause grants Cong. the pwr to incorporate the bank b/c it is

purposes (he & majority disagree on those purposes)—previously a duty of individuals to carry gun for effective militia, no longer so statute is constitutional
-looks at drafting history—in original draft, had conscientious objector clause, focused on “limited to military service”
-says 2nd Amend. is militia clause—can’t let Cong. eliminate militia by banning arms
-consequence of Stevens’s opinion is would eliminate 2d Amend.
f. Breyer
-says shouldn’t be originalists, should be concerned with reality (how to balance constitutional right with state’s interest in gun protection laws
-if he’s using rat’l basis test, every gun control law would be constitutional
-if he uses strict scrutiny, hard to declare any gun control law constitutional (could say compelling gov. interest but if ex con says conviction had nothing to do with guns, e.g. embezzlement, law doesn’t serve to carry out objectives of interest)
-maybe Breyer is using intermediate scrutiny, seems to tilt towards rat’l basis and gives gov. benefit of the doubt
f. both Scalia & Stevens use originalist methodology—ask what ppl understood text to mean when it was written
g. both agree that purpose of 2d Amend. was b/c of fear of disarming militia & eliminating it & replacing it w/ army (afraid of standing army b/c of turning around & conquering internally—mechanism for imposing tyranny)—militia makes large standing army unnecessary
h. both arguments are strong, both methods often used to interpret, both writing as advocates
i. most treatise writers read 2d Amend. more broadly than Scalia did—looking through 1800s, interpreted broadly as for self-defense—Stevens says who cares what ppl thought in 19th Century , care what ppl think in 20th century (uses somewhat different historical materials in analysis)
j. if ambiguous,
1) can say should interpret Bill of Rights broadly if arguments are close as in Scalia & Stevens’s arguments
2) can also say should interpret w/ deference to legislature
3) can also say competing interests that didn’t exist at time of framing
4) can also look at precedent
k. absolute bans on guns or law similar have been struck down as unconstitutional since this decision
l. Breyer (dissent)
-says legislature is best to interpret contemporary needs—uses policy considerations to determine if DC statute is constitutional not interpretation of 2d Amend.
-outer limits of right, interest balancing; core of right, interest balancing would elim. right

3. US v. Miller (1939)
a. 2 men transported shotgun from OK to AL w/o registering it as required by National Firearms Act; alleged Act violates 2nd Amend.
b. Holding:  Does not violate 2nd Amend ; 2nd Amend. right extends only to certain types of weapons
c. leans more towards Stevens approach—focus is on militia—individual right & duty to carry weapons & participate in militia
c. stands for proposition that shotgun not in use in militia; did not use handgun b/c inaccurate, mostly for decorative purposes & self-defense, not for militia; defending yourself w/ pistol was on dirt road when only one person threatening you
II. Federalism
A.      Commerce Clause
1.       Located in Art. 1 §8
2.       4 eras
-early American history-1890s: commerce pwr broadly define but minimally used
-1890s-1937: commerce pwr narrowly defined, used 10th Amend. as limit
-1937-1990s: commerce pwr defined expansively, refused to apply 10th Amend. as limit
-since 1990s: commerce pwr narrowly defined, 10th Amend. independent, judicially enforceable limit on fed. actions
3.   Ct considering 3 questions throughout eras:
1) What is “commerce”? Is it one state of business, or does it include all aspects of business-even life in the US?
2) What does “among the several states” mean? Is it limited to instances where there is a direct effect on interstate commerce, or does any effect on interstate activities suffice?
3) Does the 10th Amend. limit Cong.? If Cong. is acting w/in the scope of its commerce pwr, can a law be declared unconstitutional as violating the 10th Amend.?
4.       Initially, requirement was direct effect, then substantial, then cumulative, then does gov. have rat’l basis
5.       Under rat’l basis test, does Cong. have to prove proposition that activity has effect on commerce?
-no, just have to ask whether Cong. could reach this conclusion & examine factual support for what Cong. is saying
-defer to Cong. that activity has substantial effect on commerce, that is its problem, not the court’s domain—don’t need factual support
6. Cong. has the plenary pwr to regulate interstate transactions (Darby, Civil Rights Cases). Cong. can also regulate intrastate (local) transactions when they are economic activities that in the aggregate (Filburn) have a substantial effect on interstate commerce (Lopez, Morrison) unless the non-economic activity is regulated in order to preserve a larger market reg. (Raich, Filburn)