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

Constitutional Law

Prof. Reinstein

Fall 2013

I. Introduction to the Constitution

a. Who can perform what governmental functions?

i. The Constitution prescribes a Federal system – duel sovereignty listing the scope and limits of federal powers.

ii. Separation of powers – system of checks & balances. Not pure separation

1. President has legislative powers (veto, treaty making)

2. Congress has executive powers (confirming Presidential appointments, declaring war)

3. Congress has judicial powers (impeachment)

iii. What if State and Federal law conflicts?

1. Article VI, Section 2 (Supremacy clause): The Constitution and laws of the United States (made in accordance to the Constitution) are the supreme law of the land and judges in every State are bound by it.

2. Look at whether federal gov’t has the power to pass said law under the Constitution to pass that law. If not, state law supersedes it.

iv. What if Congress passes a law, but it violates a right guaranteed by the Constitution

b. Articles, Amendments

II. Judicial Power

a. Judicial Review

i. Marbury v. Madison (1803): establishes the authority for judicial review of federal and executive legislative acts. Court presumes a statute is constitutional.

1. No judicial review for executive discretionary acts, just for legal acts. There must be a remedy when an individual’s right has been violated. If official is acting as a political entity – in executive capacity, Supreme Court cannot overrule. But if official is involved in conduct that violates individual rights under the law, they are subject to the legal process. Government is not above the law and nobody should be the judge of their own case – judicial branch provides impartial arbiters. Mandamus is the appropriate remedy

a. “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.”

2. The Constitution is the supreme law of the land. “It is emphatically the power of the judiciary to say what the law is” – Marshall – Courts have the power to determine the legality of the acts of the Executive Branch and to order the President to comply with the Court’s view of law!!

ii. Martin v. Hunter’s Lessee (1816): Supreme Court review is essential to ensure uniformity in interpretation of federal law. Supreme Ct has authority to review state court decisions b/c in Constitution suggests Supreme Ct has original jurisdiction over few areas and would be without a role if it couldn’t review State Ct decisions. If each states’ courts had the final say on the federal law than federal law would mean something different in each state.

iii. Cohens v. Virginia (1821): Supreme Court reaffirmed Sec. 25 of the Judiciary Act giving the Supreme Court authority to review state court judgments. Many state judges are dependent upon State legislature for salary & positions. Federal judges are more independent than state judges.

iv. Purpose of judicial review:

1. Deny/affirm the validity of majority principles

2. Give voice to an unrepresented minority

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

4. Educate and inform the public through their opinions

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

III. Federal Legislative Power: Congress can only act when there is express/implied authority in the Constitution. States can act unless the Constitution says otherwise (prohibits it).

a. McCullough v. Maryland (1819): No specific listing of power to create a bank or incorporate, but there are powers listed to lay + collect taxes; to borrow money; to regulate commerce; to declare and conduct war; and to raise and support armies and navies. Government must have the means to execute these powers. It is in fact the interest of the nation to facilitate their execution.

i. 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.”

1. Marshall interprets “necessary” as including means that are “convenient and useful” towards accomplishing the end.

2. Congress may legislate in support/furtherance of any of its enumerated powers (purse – borrow, money, taxation; sword – declare war, raise & support; commerce – interstate actions)

ii. The Constitution often doesn’t specific means by which to carry out powers = there are inferred powers to ensure the beneficial exercise of the power, not just those indispensably necessary.

1. Penal code – no laws for punishment

2. Power to establish post offices & roads, but not to carry mail or punish stealing of mail

iii. The Constitution must be flexible to time & circumstance – it’s a permanent instrument, cannot be overly specific in its application. It’s an outline, not a legal code. Congress must have maximum flexibility to carry out its powers.

iv. When a law is passed to perform a Constitutional duty, judging its necessity is not a job of the judicial branch, but the legislature.

v. Whether law is properly within Congress’s power is judged by the end to be accomplished, rather than the means by which it seeks to do so.

b. Supremacy Clause (Art. IV, § 2): “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

c. 10th Amendment (Art. VI, § 2): The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

d. United States v. Comstock (2009): Adam Walsh Child Protection Safety Act, passed in allowed court-ordered civil commitments by the federal government of sexually dangerous persons already in custody. McCullough: Congress may enact laws that are “convenient, useful, or conductive” to the “beneficial exercise” of the enumerated powers. Court has the power to determine if the means used are rationally calculated by Congress to achieve the desired end. Congress is a custodian of the prisons and has an obligation to the ensure prisons are safe to the public & safe to prisoners. Congress rationally calculated that this legislation would help the federal government protect its citizens. Typically, this looks like a power the states would have and not the federal government. BUT applies to a narrow group – “sexually dangerous”, already committed a sexual offense, diagnosed.

IV. Executive Power

a. Article II: “The executive Power shall be vested in a President of the United States”

i. Compare to Article I: “all legislative Powers herein granted shall be vested in a Congress of the United States”.

b. Little v. Barreme: During the “Quasi War” with France in 1795, Congress did not declare war, but President imposed an embargo on US trade with France, and authorized the Navy to seize any American ship headed toward a French port. A Danish ship (suspected to be American), The Flying Fish, was captured by the U.S. Navy as it was leaving a French port. The President did not have “any special authority” to order the seizure of non-American ships and ships departing French ports. Even if the Flying-Fish had been an American ship, it still would not have been subject to seizure. Since Little had illegally seized the ship, he was also liable for damages.

c. The Prize Cases: SC attacked Fort Sumter in April 1861, Congress was not in session and Lincoln called for a special session to begin July 4. In the interim, Lincoln raised an army and ordered a blockade of all Confederate ports. Congress authorized him to declare a state of insurrection on July 13, 1861. On August 6, 1861, Congress retroactively ratified all Lincoln’s military action.

i. “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force…whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war”.

d. Youngstown Sheet & Tube Co. v. Sawyer (1952): During Korean War, Pres. Truman wanted to avert a strike in the nation’s steel mills, so he issued an executive order directing the Sec. of Commerce to seize the mills and operate them under federal direction; POTUS didn’t ask Congress to approve seizure. President can’t make the laws, only enforce them.


iv. Combination of textual & original (Heller)

v. Structural approach – how to reconcile powers of the President w/Powers of Congress and System of checks & balances (Jackson’s opinion in Youngstown)

b. DC v. Heller (2008): DC essentially bans the possession of hand by making it a crime to carry an unregistered handgun and prohibiting registration of handguns. Also requires weapons to be disasembled in the home when not in use.

i. 2nd Amendment: “A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.

ii. Scalia majority:

1. Operative Clause – “right of the people to keep and bear arms” guarantees the individual right to possess and carry weapons in case of confrontation.

2. Prefactory Clause – “A well-regulated militia, being necessary to the security of a free State…” Militia = all able-bodied men, unlike an army/navy that Congress must call into action – already in existence. Militia was needed to assure against tyranny

3. Inherent right in 2nd Amendment is self-defense. Extends to the home where need for self-defense is most acute. Handgun is most preferred firearm for self-defense. èBan is a violation of the 2nd Amendment. Prohibition on operability of the weapon is a violation

iii. Stevens dissent: The 2nd Amendment is about individual rights to hold guns, not guns for use in militia. Yet, there are restrictions – Restrictions on felons and mentally ill are permitted. Restrictions for usage to commit a crime are permitted. Restrictions on guns in “sensitive areas” (schools, government buildings) are permitted. Restrictions on concealed weapons permitted. Restrictions on age limit permitted. Restrictions on “unusually dangerous” weapons permitted. Background checks permitted. èright to possess & use arms in conjunction with well-regulated militia service! State militias guarded against threat of a federal standing army.

iv. Breyer dissent: the Country and context has changed. We must value the right to posses a gun for self-defense vs. value of gun control. We’ve always allowed restrictions on right to bear arms: age, felons, mentally-ill, “unusually dangerous weapons”, sensitive places, etc. And we’re now dealing with the urban epidemic of gun violence & death. Law is tailored to life threatening problem of handgun deaths. District used reasonable judgment satisfying the legal standard for review. Court shouldn’t intervene – especially in a local issue where legislatures are given greater deference.

c. U.S. v. Miller (1939): Challenging the Constitutionality of the National Firearms Act. Without proof that a shotgun is needed for the preservation or efficiency of a well-regulated militia, the 2nd Amendment does not guarantee the right to keep & bear such an instrument. Purpose of 2nd Amendment was to provide for a militia. Militia-men were expected to bring their own weapons. Had a duty to hold weapons in their home.

III. Congressional limits: Congressional Power and the Limits of Federalism

a. The Commerce Clause (Article I, Sec 8): “The Congress shall have the power…to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” + (Art. I, Sec 8) Congress is authorized “to make all laws which shall be necessary and proper” for the purpose of executing the enumerated powers….”

b. 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”