Select Page

Constitutional Law I
Temple University School of Law
Little, Laura E.


I. Introduction to the United States Constitution
The Document and its Plan of Government
–        Functions of the constitution?
o   Establish federal government
§  Coequal branches, separates power among 3
·         Checks and balances
·         Specialization and expertise
o   Identify baseline national values
§  Human rights
·         But consider, BoR left out of original document
§  “gospel” of how government operates in the document
o   Orders federal/state relationship
§  Centralized/unified control
·         Economics/finances, foreign affairs/diplomacy, national defense/military
§  Some things split evenly between both forces
·         Identity/culture
§  Preference for state control
·         Local knowledge
·         Laws tailored to state preferences/needs/options
·         Physical proximity to persons affected, involved
·         Personal investment encourages accountability, ownership
o   Enunciates specific individual rights
–        Why a constitution?
o   Distance new colonies/government from England
o   Ceremony/seriousness of undertaking
o   Harder to change, set up permanent structure
o   Why amendments?
§  Some overturn specific cases; 11th (?), 14th (Dred Scott), 16th (income tax)
§  Some address eventual changes in societal values; 18th (prohibition), [21st] –        Modes of interpretation
o   Why a need to interpret?
§  The Const. as document is rather short, needs teasing out
§  Need something to interpret vocabulary, legal definitions
o   Originalism – textualism, only the words matter, clearly stated in document
o   Non-originalism – the living document, changes with social norms
o   Conservatism – preference for legislative action over court’s ”judicial activism”
§  Law in economics (normative, positive)
o   Liberalism –
§  Legal realism
§  Legal process – constrain how judges interpret constitution, stare decisis
§  Critical legal studies – post-modernist analysis of how judges interpret const’l language to reproduce hierarchies and powers of ruling elite
§  Feminist constitutional theory – judge made law used to perpetuate institutions
§  Racial constitutional theory – principles of justice are represented in how const’l interpretations are used to give power
II. The Structure of Government
A.    The Federal Judicial Power
Article III, §1: The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
1. The Power of Judicial Review
§  Not explicitly outlined in the Constitution
§  Marbury v. Madison (1803) **foundational case**
·         H Court didn’t have original jurisdiction to hear the case, therefore writ could not issue, despite Marbury’s entitlement to the post
·         Framers’ intent, apportionment of judicial power
·         SCOTUS may only revise and correct in a case already ongoing
·         Establishes authority for judicial review of executive actions
·         Establishes Art. III as ceiling for federal court jurisdiction
·         Establishes authority for judicial review of legislative acts
§  Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics
·         Countermajoritarian difficulty  – judicial review stands against democratic theory (judges choose, instead of the people)
·         But court can engage in active dialogue with other branches of gov. to lead public opinion carefully
·         Pros: can deliberate frankly because not elected, educate public, legitimize rules by not striking down acts of Congress, Court offers a “sober second thought”
·         Cons: can make unpopular decisions, deny majority views, calls into question legitimacy of legislature, implies distrust
§  Whether stare decisis will be used, or whether precedent may be overruled
1.      Vote counting (who’s on bench at the time)
2.      Change in social and legal landscape
3.      Facts
4.      Procedural posture
5.      Statute or regulation being challenged
6.      Willingness to admit mistake
7.      Strategy of litigation
2. Interpretative Limits
§  How should Constitution be interpreted? 2nd Am. as example…
“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.”
§  District of Columbia v. Heller (2008)
·         H DC gun ban violates 2nd Am.; unconst’l
·         Scalia reads 2nd Am. as originalist, through text and contemporary practices at time of ratification
·         2nd clearly protects individual’s right to possess firearm unconnected to service in militia, including self-defense in home
·         Dictionary meaning (Johnson), natural meaning, grammatical constructions (operative clause, prefatory clause), contemporary documents
·         Dissent: Stevens – only militia-related interests protected; literal interpretation of text, Scalia’s interpretation looks br

ontrary to Sibelius?)
§  The meaning of “Commerce among the States”
§  Heart of Atlanta Motel v. US (1964)
·         Extends Wickard; Congress’s CC power and “substantial effect on interstate commerce” includes motel which serves interstate travelers
·         Outlines Court’s willingness to push the power with regard to substantial moral matters.
·         H Title II is const’l as applied to facts, under Congress’s CC power
·         Power to promote interstate commerce includes power to regulate local incidents thereof, including local activities in both States of origin and destination
·         Enunciates disruptive effect of racism on commerce
·         Concurrence: moral imperative alone (under 14th ) should justify this ruling without need to resort to invoking CC power; [but at time Congress could only regulate gov., not individuals under 14th] ·         Pretextual context – regulating/legislating against discrimination
·         Hotels are accommodations.
§  Katzenbach v. McClung (1964)
·         Companion to Heart of Atlanta Motel; Title II const’l as applied
·         H Congress has rational basis to find racial discrimination in restaurants had direct adverse effect on free flow of interstate commerce
·         Congress legislated accordingly with appropriate power under CC, not in violation otherwise of any express Const’l provision
·         Establishes “rational basis” approach/standard for review
·         Court deferential to Congress, acts will usually be upheld
§  10th Amendment between 1937 and 1990s
§  Garcia v. San Antonio Metro. Transit Authority (1985)
·         10th not a limit on Congress’s commerce powers
·         H States not immune from fed. regulation turning on judicial appraisal of particular gov’t function as “integral” or “traditional”
·         Too hard to define “traditional”/“integral” functions in challenges
·         No such thing as “sacred province of state authority”
·         Dissent: Powell – result substantially alters Const’l federal system
·         Dissent: Rehnquist – result will be overruled soon, it’s so wrong