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

Broad principles to Organize Thoughts:

Our const unique; has to figure out what is govt and what are individual rights

At time set up we had sovereign components, so had to:

1. Establish national govt and divide power

2. Determine Federal relation b/w fed and states

3. Protect individual rights

Two big themes

1. General purposes of Const

a. Const provisions and concepts that act as constraints on fed govt for benefit of states e.g. recognizing fed govt one of limited power, has power only if we can find in const text; if we read text narrowly, has benefit for state power (Lopez reading CC power restrictively benefits states power; Also have provisions in Const that constrain e.g. 10th

b. Constraints on fed govt for benefit of individual rights e.g. BOR were constraints on fed power; can’t trounce on individual rights

c. Constraints on states for benefit of fed govt; big issue here is preemption, supremacy clause; case law had developed principles saying when state law must yield to fed law;

i. Also dormant CC and P&I clause

d. Constraints on states for benefit of individual rights

e.g. Lochner, Lawrence, Roe, Casey, CR amendments, especially the 14th b/c acted as conduit for other BOR rights applied to states

2. Role of the Courts and type of judicial review and scrutiny that court uses

Contrasting approaches court has taken at different points in different times

Wickared lighthanded, Morrison heavy

Exec: Court much more closely scrutiny if Congress has acted; Court is umpire to make sure Exec honoring Congress’ wishes

1st: explicit discussion fo level of scrutiny for content regulations;

Procedural DP: searching in Goldberg, more pragmatic in Matthews and Hamdi

Subst DP has significant level of review

EPC; formalizes level of scrutiny, result of case will turn on how activist Court will be

Need to be literate on basics of Const doctrine, but it changes all the time; need to understand parameters of how it changes;

Every opinion has historical context

I. Intro to US Constitution

A. The Document and its Plan of Government

1. Functions

a. Creates National Govt. and Separates Power

·         Article 1: Legislative
·         Article 2: Executive
·         Article 3: Judicial

·         checks and balances; lessens tyrannical rule
·         in general at least two branches must agree
·         e.g. enacting law (leg and exec); e.g. enforcing law (exec and jud)

b. Divides Power Between State and Federal Governments

·         Federalism creates vertical power structure with fed. govt. on top
·         Supremacy Clause makes Constitution last word
·         10th amendment gives states other rights; question has been which?
·         Limits state’s ability to interfere w/ each other

c. Protects Individual Liberties

·         Only deals with government activity except 13th (private slavery)
·         Applied to state governments, too, in 20th century
·         Mostly in Bill of Rights
·         Exceptions
·         1.9, 1.10 ex post facto (punishing act that was legal when committed) and bill of attainder
·         3.2 gives trial by jury except impeachment; 3.3 treason
·         4 gives citizens of other states fair standing when visiting

2. Why a Constitution?

a. Difficult to Change

·         2/3 of both houses or 2/3 of states call for convention w/ 3/4 approval
·         Analogous to Ulysses chaining himself to ship; knew his weakness and protected himself from it; except constitution bounds future, not itself
·         Anti-majoritarian
·         Success defined by whether it controlled mob
·         Does it protect long term?

3. History

4. Interpretation: How?

a. Inherent Need for interp

·         Lots of gaps; countless problesm not expressly addressed (president remove exec. Officers? Federal laws infringe on states?)
·         Meaning of certain phrases (necessary and proper, due process, cruel and unusual)
·         When can government interfere w/ fundamental rights?
·         What about rights not mentioned (privacy, abortion)

b. Originalism v. Non-Originalism: How should the Constitution Evolve?


·         Confine to norms clearly written in Const
·         Rights exist only if explicitly stated
·         Evolve only by amendment (no right to reproductive freedom)

Strict Origin

say should emphasize differences

Post Modernism
-rejection of any sort of distilled truth
-e.g. due process interp says we can’t truly define; meaning lies in the interpreter not in words itself

None of these explain cases (all agree w/ Brown)

II. The Structure of Governtment

A. Judicial Power

-Article III creates judiciary and defines powers

1. creates federal judicial system
2. vests power in one supreme court and inferior courts created by congress; allowed for lower federal courts b/c didn’t trust states to uphold fed. law
3. life tenure for judges ensuring independence
4. jurisdiction
5. establishes original and appellate jurisdiction
6. trial of all crimes by jury except impeachment and trial in state crime committed
7. defines treason

1. Power of Judicial Review

-not granted by Art. 3
-Convention rejected Council of Revision which proposed to review every law

Marbury established authority for judicial review of executive and legislative acts

-Statute Marshall struck down would have strengthened judiciary, so Jefferson welcomed striking it down; Marshall probably calculated this to realize this was a case to claim judicial review that would draw little opposition

1. Right to commission?
-yes, all procedures followed

2. If he has right, do laws afford remedy?
-yes, no person, even president, above law

-in matters of appointments that is a political question for executive, but in matters involving duty assigned by law and individual rights that is for judiciary

3. Can court issue this remedy?
-court can review executive actions and issue a remedy

Went through all this to slap Jeff and console Feds, could have been impeached for giving mandamus; stealthly gave judiciary strong power