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Constitutional Law I
Temple University School of Law
Green, Craig




I. How do we interpret the Constitution?

A. Originalism

1. Original History

B. Text of the Constitution

1. Marbury was close to a textual interpretation

C. Traditional Doctrine and Precedent

D. Tradition

1. Doesn’t have to be judges?

2. How have ____ acted?

a) Congresses

b) People

c) Presidents

E. Morality

1. Is the constitution a morally good document?

F. Principled

1. It’s sensible and governed by logic

II. Marbury v. Madison: Law is for the law guys. The reason we interpret the constitution through court cases; writ of mandamus for failure to deliver position.

A. Holding:

1. The supreme court has appellate jurisdiction, not original jurisdiction to hear Marbury’s case under Art. III; he’s got a right to a writ, but the Supreme court can’t issue it.

2. The supreme court has the power, implied from Art. VI, Sec. 2, of the constitution, to review Acts of congress and if they are found repugnant to the constitution, to declare them void.

3. (We’re going to be studying cases, because we were told by Marbury that judges have the final say for what the constitution means)

III. Martin v. Hunter’s Lessee: This is the reason we read supreme court cases; conflict between a federal treaty granting title to Martin and Hunter who got title from virginia law; the VA court of appeals held that the U.S. Supreme court did not have jurisdiction to decide matters of federal law in the courts.

A. Issue: Whether the supreme court has appellate jurisdiction over constitutional decisions by state courts.

B. Holding:

1. The U.S. supreme court has jurisdiction over issues of federal law in state courts.

a) If they didn’t, the state courts could NOT hear federal issues. (Constitutional Argument)

b) Comes from Section 25 of the Judiciary Act (Fed Statute)

c) This is judges vs. judges, and if the supreme court can interpret, but the state judge cannot.

d) Why?

(1) Uniformity

(2) Unbiased/federally biased: Counteracts state bias.

IV. McCulloch v. Maryland (1819): McCulloch (D), the cashier of the Baltimore branch of the US bank, issued bank notes in violation of a MD (P) statute providing that no bank, without authority from the state, could issue bank notes except on stamped paper issued by the state. Supreme court reversed; Necessary and Proper shows up.

A. Issue: Does congress have the power to incorporate a bank when such an action is not mentioned under the powers explicitly enumerated under Art. I, section 8 powers?

B. Holding:

1. Yes, the incorporation of a bank is constitutional by Federal Powers (other Art. I, Sec. 8) given to congress as implied by the “necessary and proper” clause of the constitution (even though, no “bank” in Art. I, sec. 8)

2. No, the states have NO power, taxation or otherwise, to retard, impede, burden or in any manner control, the operations of the Constitutional laws enacted by congress.

3. The federal constitution and the laws made pursuant to it are supreme and control the constitutions and the laws of the states.

C. Doctrinal Test:

1. “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 the end, which are not prohibited, but consist within the letter and spirit of the constitution are constitutional…” = Scope of Art. I, Section 8.

D. Necessary and Proper:

1. Means that congress may do whatever is “necessary and proper,” but they may only do that which is necessary and proper to carry out the other powers enumerated in Art. I, sec. 8 (i.e., war, commerce, spending, etc.)

2. McCulloch: Certain federal powers giving Congress discretion and power to choose and enact means to perform the duties imposed upon it are to be implied from the necessary and proper clause.

3. Not necessary and proper to do ANYTHING:

a) You must demonstrate that it’s necessary and proper to DO something else on the list, so

b) You must say that it’s necessary and proper to do X where X is implied from one of the enumerated powers…need not be expressly stated.

E. Notes:

1. Three Ways to get Original Jurisdiction (Art III, Section 2):

a) Ambassadors

b) public ministers and consuls

c) Those in which a state shall be a party

2. Necessary and proper gets you to the in between cases.

V. Cohens v. Virginia (1821):

A. Supreme court could exercise jurisdiction over decisions of the state courts in criminal cases and in cases in which the state was a party.

B. Marshall: “The judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States, whoever may be a party.”

VI. Cooper v. Aaron (1958): JUDICIAL SUPREMECY. State didn’t want to desegregate and believed that they weren’t bound by the Supreme Court’s constitutional construction.

A. Held: Go fuck yourself. The Supreme

in the constitution; congress has the enumerated power to regulate commerce among the several states.

a) The power goes to the limits of the Constitution — and as far as it needs to, see McCulloch.

4. If a state law conflicts with a congressional act regulating Commerce, the congressional act is controlling. Invalid under the supremacy clause.

C. In the grand scheme of things, this case is all about limiting state power through the commerce clause and NOT broadening Federal power, but it sets the stage.

III. The Evolution of the Commerce Clause:

A. Until the late 1800’s, congress rarely exercised the commerce clause, but then the civil war:

1. Showed the economy to be interconnected

2. Northerners wanted to ensure the freed slaves were protected

3. Showed that national power could be used effectively

B. The legislation worked in two ways:

1. Imposed a direct regulation

2. Prohibited the shipment of goods across state lines (effectively taking away incentive to produce it)

C. Had two approaches:

1. Formal: Court examined the statute and the regulated activity

2. Realist: Court attempted to determine the actual economic impact of the regulation and the actual motivation of Congress


IV. U.S. v. E.C. Knight (1895): The U.S. invoked the Sherman Act to set aside the acquisition by the Sugar Refining Co. of four competing refineries to prevent monopolization; Court held that the Sherman act did not reach this monopoly because the constitution did not allow congress to regulate “manufacturing.”

A. Issue: Can the Sherman act be invoked to repress monopolies directly where the product (sugar) is a necessity to life and affects all?

B. Holding:

1. Commerce succeeds to manufacture and is not a part of it; therefore the Sherman Act does not reach a monopoly because Congress cannot regulate “manufacturing”

2. The fact that an article is manufactured for export to another state does not of itself make it an article of interstate commerce.