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


I. Introduction to the Constitution of the United States
A.    The Document and It’s Plan of Government
a.       Articles of Confederation: loose confederation of the states, no exec. branch, no court system, no tax power, no central military, no means of enforcing Fed law, econ barriers between states, 1 vote per state, no econ stability
i.      Const. answered these problems: ensure state representation (Great Compromise), sep. of powers/Federalism, checks and balances, enumerated powers
1.      Const needed to leave out specifics to keep the document long lasting
2.      Checks and Balances:
a.       Exec. veto/C veto override (2/3 in both houses)
b.      C declares war/President = Commander in Chief
c.       President makes a treaty/Senate must ratify the treaty
d.      President nominates justices/Senate confirms
i.      C can change the number of justices
b.      ARTICLE I (Legislature): taxes, war, coin money, impeach, commerce, copywriting, military, limits of state powers and limits on govt powers
c.       ARTICLE II (Executive): foreign relations, commander in chief, power to appoint govt officials, Executive Power (Take Care Clause – that laws are faithfully executed; implementing the laws)
d.      ARTICLE III (Judiciary): Article III is about the Supreme Court; the rest of the court system will be set up by Congress, (1) Original Jurisdiction (Foreign ambassadors, etc, state v. state), (2) Appellate Jurisdiction (Diversity of citizenship, Fed Questions)
e.       ARTICLE IV (States): full faith and credit clause (each sate must recognize the decisions of other states), Privileges and Immunities Clause (not 14th Amendment): whatever rights a states gives to its own citizens, those rights must be given to citizens of other states
f.       ARTICLE V (Amendment Process)
g.      ARTICLE VI (“Clean up article”): Supremacy Clause
h.      ARTICLE VII (Ratification Process): Federalists = for the Const, Anti-Federalists = against the Const
B.     The Articles of Confederation, the Constitutional Convention, Ratification, and Bill of Rights
C.     The Idea of Judicial Review
a.       Marbury v. Madison (1803)(p.2): Judicial Review: USSC has the power to declare laws unconst
i.      Const > Congress > Common Law
ii.      Problem: potentially makes Judiciary the strongest branch
1.      Not directly accountable to the people, but only hears about 70 cases a year
2.      Suggested by Pres (elected) and confirmed by Congress (elected)
b.      Martin v. Hunter’s Lessee (1816)(p.9): USSC Fed. Question J
i.      Puts a limit on state power re Fed law (do not allow states to render Fed law incoherent with varying interpretations)

II. Legislative Power
A.    The Doctrine of Implied Powers
a.       Art I Section 18: Necessary and Proper
b.      McCulloch v. Maryland (1819)(p. 101): Necessary and Proper to expand C’s Art I powers
i.      C proves it has power under Art I, and then uses N/P kicks in and allows C to choose the means of enforcing that power
1.      Ex. C has the power to pay debts, raise armies, collect taxes => N/P to create a National Bank as a means of carrying these things out
ii.      Powers given to the US = Powers taken away from the states
B.     The Commerce Power (one of the enumerated powers)
a.       Art I Section 8: C has the power to regulate commerce with (1) foreign nations, (2) among the several states, and (3) with Indian tribes
b.      Doctrines used to limit CC powers:
i.      Narrow the definition of “commerce”
ii.      Restrictive conception of “among the states”
iii.      10th Amendment
1.      Not a separate constraint, only a reminder of the limits on C’s const. powers
2.      Fed law will never be struck down as violating the 10th, only for exceeding the scope of C’s Art I powers
3.      Reserves a zone of activities for the state for their exclusive control
a.       Fed laws that intrude = Unconst
c.       ERA 1: Early American History – 1890s: Broadly defined, but minimally used
i.      Gibbons v. Ogden (1824)(p. 113): Definitions
1.      Commerce = trade, exchange, intercourse, movement/travel of good, people (money, services), navigation
2.      Among the States = anything not completely in 1 state; anything intermingled with more than 1 state
a.       Stream of Commerce = INTER
b.      If part or effect is INTER, everything in INTER
3.      Regulate = C decides what to regulate (ban, promote, deter, no regulation)
a.       PLENARY power to regulate
b.      States can still regulate commerce with police powers (health, safety, morals, general welfare)
d.      ERA 2: 1890s – 1937: Narrow definition, limited by the 10th Amendment
i.      Insurance ≠ Commerce
ii.      1890 – 1915: More regulation but mixed results
1.      United States v. E.C. Knight Co. (1895)(p.117): manufacturing ≠ commerce
2.      Swift and Co v. US (1905): stockyards = stream of commerce
3.      Stafford v. Wallace (1922): stockyards = throat through which the current flows; cannot be separated from commerce; relationship of INTRA to INTER is so close and substantial, that INTRA must be regulated as INTER
a.       Same theory for: (1) impure or adulterated food or drugs, (2) retail labels, (3) intoxicating beverages to Indians
i.      Not actually evenly applied: laws for social welfare of the worker ≠ INTER
4.      Champion v. Ames (1903)(p.128): lottery tickets (goods) = commerce
a.       Can be regulated for morals (powers are plenary so it does not matter that is not economic regulation)
5.      Sherveport Rate Cases: Houston, East & West Texas Railway Co v. United States (1914)(p. 120):
a.       C can regulate INTRA with INTER impact
b.      INTER carriers = Instruments of Commerce
c.       Purposes of Fed Regulation of INTER:
i.      Prevent evils of the confederation
ii.      Provide basis of national unity
iii.      Protect national interest by securing the freedom on INTER from local control
iii.      1915 – 1935: USSC cut back and struck down CC regulations
1.      Manufacturing and labor relations ≠ Commerce
a.       Occur locally => Local regulations
2.      Hamer v. Dagenhart (1918)(p.125): Child = Production ≠ Commerce
3.      Art I and 10th = protection of state power and limit on Fed power
4.      Need proof of direct and immediate effect on INTER
iv.      1935-1937: Crisis: Great Depression/New Deal
1.      Nat’l Labor Relations Board v. Jones and Laughlin Steel Corp (1937)(p.131):
a.       Deferential standard – Rational Basis – when defining the scope of a power granted to C
b.      Once C’s power is OKed => power = PLENARY
c.       Affection Commerce:
i.      In commerce

                                                                                                               i.      Ex. Bomd used to kill a family member; bomb traveled INTER in a instrument of commerce => J for murder
ii.      US v. Morrison (2000)(p.165): UNCONST: Violence Against Women Act; #3 Substantial Effect
1.      Aggregate rationale of Wickard v. Filburn is NOT valid for non-economic activity
2.      #3 Substantial Effect Argument, but Connection is too weak => Unconst
3.      DISSENT: use aggregate rationale for economic and non-economic activity
iii.      Solid Waste Agency of N. Cook County v. US Army Corp. of Engineers (2001)(p.170): CWA Migratory Bird Rule => Unconst
1.      Const. Doubt Principle: When there is a potential conflict between a statute and the Constitution, and the statute is susceptible to more than one interpretation, the Court should choose the narrower interpretation to avoid placing the statute in conflict with the Constitution
iv.      Pierce County, Washington v. Guillen (2003)(p.175): Fed. Hwy. Safety Act
1.      Legislation aimed at improving safety in (#1) the channels of commerce and increasing protection for (#2) the instrumentalities of interstate commerce may be regulated under the Commerce Clause
v.      Gonzales v. Raich (2005)(S29): CONST: Medical Marijuana => #3 Substantial Effects
1.      Economic activity => Wickburn Aggregation Rationale => Deference, Rational Basis
a.       Wickburn: cultivating for home consumption a fungible commodity for which there is an established, albeit, illegal interstate market
2.      DISSENT (O’Connor):
a.       Inconsistent with Lopez, b/c here this is a fed statute which is also regulating just possession now considered an economic activity which is subject to Deferential Review
i.      Should use Const. Doubt Principle
3.      Scalia and Thomas: Substantial Affects idea should be evaluated under Necessary and Proper Clause, not the Commerce Clause
vi.      RECAP
1.      Lopez and Morrison = narrow view of economic activity => Unconst
2.      Gonzales = broad view of economic activity => Const
C.     Taxing and Spending
a.       Spending: lay taxes, duties, imports, excise to pay debt, provide for common defense, and for the general welfare of the US
b.      Conjoined powers: Tax generates the revenue that makes spending possible
c.       C can spend on things that it cannot regulate
d.      How to Use Taxes:
i.      Deter disfavored activities
ii.      Promote favored activities
iii.      Regulatory responsibilities (combine tax power and N/P)
1.      If C is spending for something, it can attached regulations => Regulatory Commissions
2.      Institutions become dependent on Fed funding => accept regulations to avoid loosing funding