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Constitutional Law I
Temple University School of Law
Rahdert, Mark C.

Constitutional Law
Prof. Rahdert
Argument Tip:
In law four good arguments is much better than one good argument.
·         Text – It is linked with “proper” which is a pretty open concept thus when you team the two words together then you must view them broadly.
·         Structure – it appears in the section that gives power.
·         History – the framers wrote the constitution in order to enlarge the powers of the constitution…
·         Policy – it is in the nature of government to have powers and to carry them out and the ability to choose from an array of different powers.
The Constitution:
Article I – The Legislative Branch
§ 1 – The Legislature
§ 2 – The House
§ 3 – The Senate
§ 4 – Elections, Meetings
§ 5 – Membership, Rules, Journals, Adjournment
§ 6 – Compensation
§ 7 – Revenue Bills, Legislative Process, Presidential Veto
§ 8 – Powers of Congress (Includes necessary and proper Clause)
§ 9 – Limits on Congress
§ 10 – Powers prohibited of States
Article II – The Executive Branch
§ 1 – The President
§ 2 – Civilian Power over Military, Cabinet, Pardon Power, Appointments
§ 3 – State of the Union, Convening Congress
§ 4 – Disqualification
Article III – The Judicial Branch
§ 1 – Judicial Powers
§ 2 – Trial by Jury, Original Jurisdiction, Jury Trials
§ 3 – Treason
Article IV – The States
§ 1 – Each State to Honor all others – full faith and credit…
§ 2 – State citizens, Extradition – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
§ 3 – New States
§ 4 – Republican government
Article VI – The US
§ 2 – Supremacy Clause

1 – Freedom of Religion, Press, Expression
2 – Right to bear Arms
3 – Quartering of soldiers
4 – Search and Seizure
5 – Trial and Punishment, Compensation for Takings
6 – Right to speedy trial, confrontation of witnesses
7 – Trial by jury in civil cases
8 – Cruel and Unusual punishment
9 – Construction of Constitution
10 – Powers of the States and People
11 – Judicial Limits
12 – Choosing the President, Vice President
13 – Slavery Abolished
14 – Citizenship Rights; Equal Protection, Due Process; Do not “abridge the privileges or immunities.”
15 – Race no bar to vote
Judicial Review
Marbury v. Madison (1803) – The Authority for Judicial Review
·         Filing for a petition of a writ of mandamus. Relying on § 13 of the Judiciary Act of 1789 which gave the SCt original jurisdiction for petitions of writ of mandamus.
·         SCt asserted that a federal court has power to refuse to give effect to congressional legislation if it is inconsistent with the Court’s interpretation of the Cnst.
·         An act of Congress that is repugnant to the Cnst cannot become a law because the Cnst is the supreme law of the land (art 6).
·         Gave the judiciary the power of judicial review or the ultimate power to interpret the Cnst.
·         Establishes Art III as the ceiling of federal court jurisdiction. Congress cannot expand the original jurisdiction of the SCt.

Authority for Judicial Review of State Judgments
Martin v. Hunter’s Lessee (1816)
·         Two competing claims to certain land within Virginia (now Fairfax County).
·         Issue: Whether the SCt may review the decision of a state Court
·         SCt has judicial review of state judgment as long as it is something they have jurisdiction over. Subject matter jurisdiction.
·         Nullification – (the idea that states don’t apply the federal law because it is inconsistent with their own law) but this decision cuts off the power of the states to do this
·         Effectively the states are not sovereign and there needs to be uniformity in interpreting the Cnst.
·         SCt can review the highest state court opinion where (1)it involves a federal question, (2)but only to the extent that independent and adequate state grounds for the state court’s decision do not exist.

Massive Resistance:
Cooper v. Aaron (1958)
·         Little Rock school system ordered to integrate blacks and white. The governor called the National Guard to prevent blacks from going to white schools. Eisenhower used federal troops to protect the black students.
·         Absolutely, all federal and state governments are bound to follow the opinion of the SCt as they interpret the Cnst.
·         Invoked Marbury in stating that the state must comply with a SCt decision. Use the 14th Am and the Supremacy Cl (Art 6 § 2) to get the states to adhere.  

Doctrine of Implied Powers
McCulloch v. Maryland (1819)
·         Implied powers within the Necessary and Proper Cl
·         The act to incorporate the Bank was a law made in pursuance of the Cnst.
·         The law imposing a tax on the Bank of the US was unconstitutional and void because the states had no power to burden the operations of the Constitutional laws enacted by Congress.
·         Rationally Related: If the means are rationally related to ends within the compass of Constitutionally enumerated powers then means are Constitutional. Marshall set a minimum standard only, legislation often must pass more rigorous tests.
·         If Congress can justify an action as N&P to the achievement of its enumerated powers, than the action is justified.
Federal Protection of Individual Rights Before the Civil War
Before the civil war the bill of rights were not applied to the states. It wasn’t until after the civil war that there was incorporation.

Barron v. Baltimore (1833)
·         Plaintiff wanted compensation done to his land by the state and argued that the 5th Am applied.
·         The protections found in the Bill of Rights were not applicable against the states.

Dred Scott v. Sanford (1856)
·         The decision declared the Missouri Compromise of 1820, legislation which restricted slavery in certain territories, unconstitutional because there is the idea that when a slave crosses into a free state he is then free but this idea is struck down under the 5th Am.
·         Under federal law he can become a citizen of the US but not a citizen of the state but they don’t give a reason.
·         Because he wasn’t considered a citizen, the SCt did not have jurisdiction (because he did not have diversity jurisdiction which is how they brought the case in court) so they shouldn’t have been hearing this at all.
Modern Individual Rights: Introduction to the First Am

Why Should Freedom of Speech be a Fundamental Right?
·         Self-Governance
o        Crucial in democracy: open discussion of candidates essential for voters to make informed elections
o        It is through speech that people can influence their government’s choices. Public officials are held accountable through criticisms. Public issues shall be decided by universal suffrage. Freedom of speech serves as a “checking value on government.
·         Discovering Truth
o        Oliver W. Holmes: “marketplace of ideas”
o        The truth is most likely to emerge from the clash of ideas.
·         Advancing Autonomy
o        When a person protests, she participates and chants in orde

efendant convicted with conspiring to violate the Espionage Act of 1918 charging them with conspiring during WWI to unlawfully print, write and publish: “Disloyal, scurrilous and abusive language about the form of government of the US;” and “intended to bring the form of the government of the US into contempt and scorn and “Intended to incite, provoke and encourage resistance to the US.”
·         Defendants in their speech against the US, though it never interfered with the military enlistment, was not within the protections of the First Am.
·         In his dissent, Holmes articulated the marketplace of ideas metaphor for the First Am.

Reasonableness Approach
·         During the ‘20’s and ‘30’s the court decided a series of cases involving criminal syndicalism laws (statutes that made it a crime to advocate the overthrow of the US government or industrial organization by force or violence.)
·         Instead of using the clear and present danger test, the court used a reasonableness approach. It upheld the laws and their applications so long as the government’s law and prosecution were reasonable.

Gitlow v. New York (1925)
·         Defendant member of a communist faction in the US. At their conference they adopted a manifesto which advocated mass industrial revolution. Convicted of statutory crime of criminal anarchy.
·         The court holds that the statute is not an arbitrary or unreasonable exercise of the police power of the state. It does not infringe upon freedom of speech or press and sustains its Constitutionality.
·         Freedom of speech does not confer an absolute right to speak or publish without responsibility whatever one chooses. It does not deprive a State of the primary and essential right of self preservation.
·         Almost always, state police powers treated deferentially

Whitney v. California (1927)
·         Court upheld the conviction of Whitney for conspiring to overthrow the government under CA’s Criminal Syndicalism Act.
·         Overruled by Brandenburg
·         Brandeis criticized the Court’s application of the clear and present danger test as ambiguous.
·         Formally extends the first Am to the states.
·         Brandeis’ opinion contained most of the modern rationales for the modern Court’s strong protection for freedom of political speech.
o        Allowing people to develop their own personalities
o        Enable decisions to be made by a democratic deliberative process rather than by the arbitrary exercise of authority. Free speech was the key to liberty that the Founders valued as both an end and as a means.
o        Advanced the pursuit of truth.
o        Provided an avenue for dissent, which preserved societal stability. By fostering gradual societal change and by allowing everyone to have their say, it actually helped to prevent revolution.