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Constitutional Law I
Temple University School of Law
Kairys, David

Constitutional Law


Spring 2014


A. The Constitution addresses the following issues:

1. Federalism – Powers of federal government vs. state government

2. Separation of powers – internal allocation of power in the federal government

3. Civil Rights and Civil Liberties – allocation of power and rights between individuals and the government

4. Equality – race, gender and disability

B. Bills of Rights – responds to something universally seen as abuse/wrongful – prevent government’s power to imprison and execute criminal defendants

1. After the Bill of Rights, the Amendments remove every limit on voting.

C. Rights offered in the Constitution aside from the Bill of Rights:

1. Bill of Attainder Clause – prohibits states and Congress from passing Bill of Attainder allowing legislature to define a crime, find person guilty and punish person without a trial

2. Prohibition of ex-post facto laws – limited to criminal laws – person cannot be prosecuted for a crime for conduct that was not criminal at the time it was committed

3. Writ of Habeas Corpus – right of a state or federal prisoner to go to a federal district court and argue that the prisoner is being held in violation of the federal Constitution or federal law – force governmental body to justify to the federal judge hearing the habeas petition why the imprisonment is proper.

4. Contract Clause – states must not interfere with the performance of already existing contracts – challenges to federal interference with contracts must be brought under the due process clause.

5. Privileges and Immunities Clause – limits the ability of a state to discriminate against out-of-staters with regard to “privileges and immunities”.

D. Evaluating Decisions:

1. Is there a constitution provision or related clauses?

2. Is there case precedence?

3. Are there arguments based on necessity and public policy?

II. LEGISLATIVE POWER – Article I, Section 8

A. Courts will uphold a congressional action so long as Congress has employed a means which is not prohibited by the Constitution and which is rationally related to objectives that are themselves within constitutionally-enumerated powers.

1. McCulloch v. Maryland – Maryland imposed a tax on a national bank and the cashier of the bank, McCulloch, refused to pay the tax, claiming that the state cannot tax a national bank because it interfered with federal activity. Significance of case: (1) federal government is supreme over the states and that the states have no authority to negate federal actions; (2) expansively defines the scope of Congress’s powers; (3) limits the ability of states to interfere with federal activities, such as by imposing taxes or regulations on the federal government.

i. Chartering of a bank is within the constitutionally-vested power of Congress:

a. Powers of the national government were delegated to it directly from the people and not from the states.

b. Implied powers or incidental powers argument – particular powers could be implied from the explicit grant of other powers. Congress has a power to create a bank if this was incidental to the carrying out of one of the constitutionally-enumerated powers, such as the power to raise revenue.

c. Means argument – The necessary and proper clause (Article I, Section 8) makes it clear that Congress may choose any means, not prohibited by the Constitution, to carry out its express authority.

1. Rejected the contention that “necessary” meant “absolutely necessary” or “indispensable” – so long as the means is “plainly adapted” to a constitutionally-specified object, the means is also constitutional.

2. Constitution does not contain any specific grant of the power to punish the violation of federal laws, yet this power had always been inferred. Similarly, the power to establish post offices and post roads had been substantially expanded to include the federal prohibition on mail theft.

d. Greater power includes the lesser power – powers granted, such as collecting taxes, borrowing money, regulating commerce, means that Congress can also do the lesser things such as creating a bank – Court rejects this argument.

e. Counter-argument:

1. The 10th Amendment can be read to limit the power of the government to only powers enumerated in the Constitution – power not given to the government are reserved to the states and the people.

f. Note: this holding does not give Congress limitless authority – Court will strike down a law where it is clear that no constitutionally-specified objective is being pursued.

ii. Therefore, Maryland’s tax was unconstitutional

a. State tax greatly impedes the operation of the Bank and could potentially tax it out of existence.

b. State tax on the Bank of the United States was essentially a tax on the entire nation and a state may not tax those it does not represent.

· Greater includes the lesser: If a power is on list, but greater powers are on the list, then we should assume that it has these lesser powers that are not on the list. It can already tax, declare war.

· Implied: Necessary and proper is the focus of the arguments for implied and means powers. However, you must still include both means and and implied arguments.

· Means: A power is constitutional as long as it is a means to a listed power

III. EXECUTIVE POWER – Article II, Section 2

A. The Constitution does not grant the President the power to make laws – it only grants the President the power to see that they are faithfully executed.

1. Youngstown Sheet & Tube Co. v. Sawyer – During the Korean War, President Truman sought to avert a strike in the nation’s steel mills by issuing an executive order directing the Secretary of Commerce to seize the mills and operate them under federal direction. Congressional approval of the seizure order was not requested. Court held that the President’s seizure order was an unconstitutional exercise of the lawmaking authority reserved to Congress. (6-3)

i. President’s power to issue executive orders must stem either from Congressional act or from the Constitution itself – no finding that this has occurred:

a. The Constitution limits the President’s power to see that the laws are faithfully executed – this does not include lawmaking powers, which have already been allocated to Congress.

b. The Constitution’s appointment of the President as Commander in Chief does not confer the ultimate power to take possession of private property to keep labor disputes from stopping production – this is a job for national lawmakers and not military authorities.

c. Using seizure to prevent work stoppage was not authorized by Congress – it was, in fact, rejected by Congress while debating the Taft-Harley Labor Management Relations Act of 1947.

ii. Jackson’s Concurrence – universally adopted law

a. Three zones of Presidential authority (Three part test to determine when President may challenge his powers)

1. When the President acts pursuant to Congress’s express or implied authorization, his authority is maximal

2. When the President acts without Congressional authorization or denial, he can rely upon his independent powers, but there is a twilight zone in which the distribution of power between President and Congress is concurrent or uncertain. In such circumstances, the Presidential actions’ propriety depends on “imperatives of events and contemporary imponderables.”

3. When the President takes measures incompatible with Congress’ express or implied will, his power is at its lowest ebb, for then he can rely only upon his constitutional powers minus any powers ceded to Congress. In such cases, courts can sustain exclusive Presidential control only by disabling Congress from acting on the subject.

b. The case at hand falls into the third type.

c. Latest application of this Rule was in Hamden v. Rumsfeld – case fell within third type.

B. In cases of emergency, however, the President has extreme powers.

1. Korematsu v. United States – President Franklin signed Executive Order, which gave military officials the legal authority to exclude any or all persons from designated areas on the west coast in order to insure against sabotage and espionage. Congress implicitly ratified the Executive Order by providing that the violation of an implementing order by a military commander constituted a misdemeanor punishable by fine or imprisonment. Under the authority of the Executive Order, the War Relocation Authority subjected all persons of Japanese ancestry on the west coast to a curfew, excluded them from their homes, detained them in assembly centers, and then evacuated them to “relocation centers”8 . The petitioner is a Japanese-American who was convicted in a federal district court for remaining in a Military Area. Court held that the Executive has the power to exclude in times of “direst emergency and peril.”

i. Power to exclude by the executive is not unconstitutional if “the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either.”

a. It is constitutional if it serves to prevent espionage and sabotage – Deference to the military.

b. Purpose-based Rule – since the purpose of the Order is to protect national security and not to discriminate, then it is constitutional. This is not about race and people who believe so are wrong and confusing the issue. The government can take a measure aimed at a minority based on ancestry and it can be punitive as long as it cannot be proven that the government acted with animosity.

ii. Frankfurter’s Concurrence – Matters of war is a business for Congress and the Executive, not the courts – Court should not question military – urges practice of judicial restraint.

iii. Jackson’s Dissent

stroyed. As seen in McCulloch – extension of federal power.

b. If Congress tried to expand this power, it would be visible and there would be a fight about it. However, the court can do it in decisions that people will not be able to understand – it’s more pernicious than if Congress tried to do it.

3. Judicial Scrutiny

i. Footnote 4: Theory on utilizing judicial power. The task of the court is when the majority is abusing the minority, the courts should protect the minority or scrutinize judicial acts (does not include women or historically discriminated minorities). Mostly only talks about protecting African Americans. Also the courts should step in when the electoral system is being interfered with.

a. protect electoral systems and minorities

b. Footnote 4 – United States v. Carolene Products Co. – Different constitutional claims would be subjected to varying levels of review. Courts generally should presume that laws are constitutional. However, “more searching judicial inquiry” is appropriate when it is a law that: (1) interferes with individual rights; (2) Restricts the ability of the political process to repeal undesirable legislation; or (3) Discriminates against a “discrete and insular minority”

c. Court’s attempt to prioritize particular types of cases for wheeling this enormous power that the Supreme Court has. The political electoral process has to be maintained, functioning, treating people equally and fairly. If a case comes to court that alleges that that hasn’t happened, the Supreme Court should as one of its higher missions look into that. Scrutiny means looking into the facts and inquiring into it.

d. The majority at certain times tends to treat minorities in oppressive ways. Minorities generally have no legislative means to fix this. This rule recognizes the limits of the administrative process.

B. Appellate Jurisdiction – The Court has the jurisdiction to review all state court decisions under the Constitution, laws and treaties of the U.S.

1. Martin v. Hunter’s Lessee – involved issue of whether a particular Virginia statute conflicted with a federal treaty. Case went to Supreme Court and the Court remanded the case to Virginia Court of Appeals to enter judgment for Martin. The Virginia court refused, arguing that since the litigation commenced in state courts, then it was up to the state court to say whether the state action violated the federal constitution, and the Court had no right to review the state court’s decision.

i. Appellate jurisdiction is within the judicial power of SC (Article 3). Framers understood this and thought most cases would originate in the states and then somehow get to the SC

ii. The Court could constitutionally review the constitutionality of a decision by a state’s highest court:

a. States are not completely sovereign entities – the Constitution limits state sovereignty in numerous respects. Congress has the right to revise, amend or supersede state laws on issues listed in Article I. Since Congress has a certain amount of control over state legislatures, certainly the Supreme Court has some power over state courts. The final word must rest somewhere, and it makes sense that it be with the Supreme Court – less affected by prejudices and interests than the state judges.

b. Uniformity in decisions – promote harmonious decisions among the states.

c. Appellate jurisdiction in Article III is given to the Supreme Court in the sense that nothing limits it and all elements of intent consistent

C. Political Question Doctrine – refers to subject matter that the Court deems to be inappropriate for judicial review. Although there is allegation that the Constitution has been violated, the federal courts refuse to rule and instead dismiss the case, leaving the constitutional question to be resolved in the political process.

1. In determining whether political question doctrine precludes judicial consideration of case, factors to be considered are: