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

Robert Reinstein – Constitutional Law – Fall 2013

CONSTITUTIONAL LAW (4th Edition, 2013) – Chemerinsky


A. The Document and its Plan of Government (Governance)

1. Themes of the Constitution

a. Creation of a national economic union:

i. States cannot impose taxes on imports or exports

· Applies both to imports/exports abroad and to and from other states.

ii. Federal government cannot tax exports but can tax imports

Þ Tax on imports must be uniform throughout the U.S.

iii. Federal government has treaty power; states are prohibited from forming treaties.

iv. Federal government has power to regulate foreign commerce and interstate commerce.

v. Common Currency

Þ Federal Government can coin money and regulate value of currency; states are prohibited from coining money.

2. Creation of a National Foreign and Defense Policy

a. War Powers

b. Treaty Powers

c. President is Commander in Chief of armed forces

i. Asserts control over militaries

d. President can recognize foreign nations/governments

e. Congress can federalize state militias to execute laws of Union and suppress rebellions.

3. Three Fundamental Principles of the Constitution

a. Federalism – Relationship between fed government and state government

i. Provincial Model: most common form of government – have 1 gov’t with “provinces”

· National gov’t that can pass laws and has control both externally and internally

Þ “Provinces” have no independent authority to pass law

· Provincial power: whatever is delegated by national gov’t (e.g., PA relationship to Philadelphia)

ii. Treaty Model: colonies form a treaty to create a gov’t and by treaty give gov’t certain powers (i.e., Articles of Confederation or European Union)

· 1 State, 1 vote

· Congressional Powers:

Þ external powers but states had sovereign power internally

Þ no power over individuals

Þ laws passed by Congress would be enforced by States

Þ no executive branch

iii. Federalism: Congress is given additional power internally.

· State Sovereignty Retained:

· States can pass laws without federal approval (states get authority from their own constitution.

· Law is unconstitutional if prohibited by federal constitution.

iv. Federal Sovereignty (Art. I, §8)

· Is the law authorized by the federal Constitution? (enumerated powers)

· Is the law prohibited?

· Representation: Because federal laws can apply directly on individuals, an executive branch, federal police force, and federal courts are established.

· Reaffirmed by the 10th Amendment: Powers not delegated to federal gov’t by the Constitution nor prohibited by it to the states are reserved to the states or the people.

v. Supremacy Clause – Art. VI, Section 2

· If there is a conflict between the US Constitution and State Constitution, the US Constitution prevails

· If there is a conflict between US statute and State law/Constitution, the US statute prevails only if it is Constitutional

b. Internal Powers: Respective powers of Congress , Executive, and Judiciary

i. Democracy: The Constitution establishes 4 entities – Representation under original Constitution and Changes Until Now

· House

Þ Original: Elected by “the people”

a. Voting qualifications established by the states; at first, most required white male property owners; some exceptional states allowed women and African Americans to vote.

b. Changes:

i. Under 15th Amendment, states couldn’t deny franchise on basis of race.

ii. 19th Amendment gave women right to vote.

iii. 24th Amendment eliminated poll tax (tied in with Jim Crow laws, e.g., Grandfather Clause)

iv. 26th Amendment reduced voting age to 18.

· Senate

Þ Original: Selected by state legislature under original Constitution – no popular election (major way of giving states power).

a. Cared about the interest of the people in the state but their constituents were the state legislature rather than the people of the state.

Þ Change: 17th Amendment changed this (passed in 1913) – Provided for direct election of Senators (the people the state)

a. Many see this as a ‘slap in the face’ to states’ rights BC senators now see themselves as federal officials rather than Representatives of state.

· Executive (President)

Þ Electoral College System

Þ Original: State legislatures decide how to appoint electors

a. Right to individually vote for president comes from state legislatures

Þ Change: No Constitutional change

a. Practical change – Overtime, the state legislatures passed laws saying that these electors would be elected directly by the people.

· Judiciary

Þ Appointed by President with advice and consent of Senate.

Þ No Change

a. Only federal representation not elected

b. State Judges: Elected in 39 states, and appointed in 11 states.

· The changes above move away from federalism and more towards a democracy; the government elections more influenced by more direct involvement of the people.

ii. Separation of powers – not a pure system, each branch does other parts. System of checks and balances.

· Laws are initiated by congress and president has veto power

· Treaties are initiated by the president and congress has veto power

· Impeachment is congress exercising a judicial power. Congress can declare war.

· Presidents executive power to appoint. Senate can consent on the presidents appointments.

· Not a whole lot that one of them can do without the other.

c. Individual Rights

i. No Bill of Attainder

· People have a right to trial by jury; No ex post facto law, i.e., government cannot make criminal law retroactive.

ii. Bill of Rights

· Originally applied only against Federal Government

· Amendments 13-26 guaranteed individual rights against the states.

B. Judicial Power

1. Origins of Judicial Review

a. Nothing under the Const. expressly gives the Supreme Ct power to rule on the constitutionality of Acts of Congress or state statutes, nor power to review decisions of state cts.

b. Art. III merely creates the SC and extends judicial power to all cases arising under the Constitution (Art 3, §2). §2 spells out those cases in which the SC has original jur. In all other cases, the ct. has appellate jurisdiction.

2. Judiciary Act of 1789

a. Congress created the lower federal courts as permitted by the Const., but did not give then general jurisdiction in civil cases arising under fed. Law.

b. Congress also gave the SC power to issue writs of madamus to US officials. This grant of original jur. Violated the specific provision of Art. III, §2 of the Const., setting the stage for Marbury v. Madison.

c. § 25 gave the SC appellate jurisdiction over courts in two situations:

i. When the highest court of a state declared a federal law or treaty unconstitutional; and

ii. When the highest court of a state rejected a litigant’s claim that his or her rights under federal law were violated.

3. In evaluating the constitutionality of any act of Congress, there are always two questions:

a. Does congress have the authority under the constitution to legislate?

b. If so, does the law violate another constitutional provision or doctrine such as by infringing separation of powers or interfering with individual liberties?

4. Marbury v. Madison (Marshall, 1803) – Assertion of Judicial Review Power

a. The Constitution is silent as to whether the Supreme Court and other federal courts have the authority to engage in such judicial review.

b. The authority for judicial review was first announced by the SC in Marbury v. Madison in 1803. This case established the authority for the judiciary to review the constitutionality of executive and legislative acts.

c. Rule: Where the Constitution, as interpreted by the SC, conflicts with the laws or actions of the other branches of government, the SC may declare such law or actions unconstitutional or invalid.

d. Facts: Marbury was appointed a justice of the peace for the District of Columbia by President Adams and confirmed by the Senate on Adams’s last day in office. His formal commission was signed but not delivered by Madison, Secretary of State at the time. Madison refused to deliver the commissions under Jefferson’s advisement as the now acting president. Marbury sued to have court issue writ of mandamus because he was entitled to his position.

i. Writ of mandamus: order telling official to do something required by law

e. Issue: Whether the SC is empowered to review Acts of Congress and void those that it finds repugnant to the Constitution.

i. Holding: Marbury’s action is discharged because the Ct does NOT have original jurisdiction; Section 13 of the Judiciary Act authorizing the Court to issue writs of madamus is unconstitutional.

· Marbury brought suit straight to Supreme Court but the statute does not fall under original jurisdiction so Supreme Court is not the right place for this case

f. Arguments

i. Individual Rights

· Marbury claims individual rights violated bc the Act of Congress guarantees him a 5-year term; this depends on whether Marbury was actually appointed.

· Marshall says Marbury was appointed even though the letter was not delivered because delivery was just a formality.

ii. Remedy: Does Ct have authority to order Madison to comply with this decision?

· Jefferson argues that the Court does not have the power to direct the executive branch. Do we not have the separation of powers? What gives the courts the power to order the president to do anything? The president cannot order the judiciary to decide an opinion a certain way. There is a separation of powers in this country, and each branch determines their own scope of power.

· Marbury’s Response: Marshall’s response deals with the fact that Jefferson violated the legal rights of an individual, and that individual should be able to seek legal redress.

Þ Marshall counters that he is not ordering the President but is informing him of what the law is.

Þ Principle of why we have courts: It does not matter who the parties are (President, Farmer, etc.), he cannot be the judge of his own case.

Þ The US Judicial system has the power to rectify issues dealing with an individual right as opposed to an issue of the nation.

iii. What is the basis of Judicial Review?

· The Court must decide a case before it according to the law

· If two laws conflict in a case, the Court must choose which to apply according to the hierarchy of laws

Þ If there is a conflict between the Constitution and an act of Congress, the court has the duty to follow the Constitution

Þ This duty is placed on all branches of government – every member of government must decide

to incorporate a bank under a doctrine of implied powers, where the Const. does not expressly grant Congress the power to do so.

iv. Holding: Yes, Congress has the power to incorporate a bank under the Necessary and proper clause.

· The incorporation of the Bank of US is a convenient, useful, and essential instrument in the performance of the fiscal operations of the fed. Government.

v. Arguments:

· Maryland argues that Congress can only exercise its enumerated powers:

Þ The bank is not enumerated

Þ Under the 10th amendment, if something is not listed, Congress cannot do it.

· Congress counters that it has the ability to do this under the necessary and proper clause. Under this clause, any appropriate means Congress uses to attain legitimate ends that are within the scope of the Const. and not prohibited by it, but consistent with the letter and spirit of the constitution (implied), are constitutional.

· The 10th Amendment would contain the word “expressly” if it were meant to limit Congressional powers to only express powers and not IMPLIED powers.

vi. Rationale

· The case turns on the interpretation of “necessary” in Art. 1, §8, clause 18.

Þ Marshall construes “necessary” loosely = useful or convenient, NOT obligatory or indispensable.

· Marshall argued that the clause was meant to expand not limit congressional power.

a. The term necessary as interpreted enlarges the powers vested in the federal government, not limiting Congress to indispensable means, but the best means to perform its duties in the manner most beneficial to the people.

· In considering the Constitutionality of the Bank of the US, Marshall refuted the argument that states retain ultimate sovereignty because they ratified the Cost.

Þ Instead, the people ratified the Const., and not the states, and thus the people are sovereign, not the states.

· Even without the necessary and proper clause:

Þ Enumerated Powers are objectives but const. does not set out means to achieve these objectives, so there must be implied powers.

Þ Implied powers are not listed because constitution is not a legal code, but it is an outline that must endure the ages (Although the fed gov’t is one of enumerated powers, which are found in the Const., the Const. cannot contain an accurate of all subdivisions of governmental power).

· The power to create implies a power to preserve.

Þ The power of Maryland to tax will destroy the bank.

vii. Take-aways:

· The Federal gov’t is supreme over the states and the states have no authority to negate federal actions

· The ct expansively defines the scope of Congress’s powers.

3. Necessary and Proper Clause (wrapping up) – US v. Comstock (Bryer, 2010)

a. Facts: Congress passed statute authorizing Dept. of Justice to detain mentally ill, sexually dangerous federal prisoner beyond release date

b. Holding: Congress has power, i.e., broad authority through necessary and proper clause to enact this law.

c. Rule: As long as the end is legitimate, within the scope of the constitution, and all means are appropriate, which are plainly adapted to that end and not prohibited – then constitutional

i. Choice of means – matter for congressional determination alone

· Necessary and Proper Clause grants federal gov’t broad power to enact laws that are ‘convenient or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise’

ii. Created federal prison – can enact laws that seek to ensure that system is safe and responsible administration

iii. Because law is supported by N&P Clause, it is NOT against the 10th Amendment. The powers delegated to the U.S. by the Constitution include those specifically enumerated powers listed in Article I along with implementation authority granted by the Necessary and Proper Clause.

· The statute properly accounts for state actions.

iv. Court rejects respondents’ argument that the N&P clause permits no more than a single step between an enumerated power and an act of Congress

d. Dissent: No specific enumerated power or powers can justify federal civil detention of sex offenders

i. Civil Commitment Act addresses none of the enumerated powers

ii. Power to protect community from dangerous tendencies of some mentally ill persons remain with states

iii. Necessary and proper clause not supposed to be used as federal police power