Select Page

Constitutional Law I
Temple University School of Law
Green, Craig

I. Articles of Confederation
a. “Each state retains is sovereignty, freedom, and independence and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled”.
b. Federal powers:
i. Determining Peace and War
ii. The authority to resolve disputes between the states
iii. The power to regulate coins and measures
iv. Etc.
c. Missing federal powers:
i. The power to tax
ii. The power to regulate commerce
iii. A judicial branch (there was only the authority to appoint a tribunal to decided maritime cases).
d. As the time under the AOC progressed, many leading political figures became unsatisfied with the government that they had created.
e. What gives the Constitution legitimacy?
i. The AOC does not since it doesn’t give the states the power to draft a new charter.
ii. Power, violence, guns, and boots.
iii. The democratic agreement by the people that we should continue to use the document.
iv. Our democratic tradition has sustained through the Constitution.
II. Judicial Review
a. The Court has the power to invalidate Congressional or Executive actions in support/furtherance of the Constitution (Marbury).
b. Neither the Court nor Congress may expand the jurisdiction of the Court beyond what is laid out in Article 3 (Marbury).
c. The Court can have appellate jurisdiction over federal issues that arise in state courts. Congress constitutionally granted them this power in the First Judicial Act (Martin).
d. The Supreme Court’s interpretation of the Constitution becomes the “supreme law of the land”. Through Article VI, their interpretation is binding on all of the states (Cooper).
e. Marbury v. Madison
i. F: Federalists and Adams were on their way out of office, so they were appointing a bunch of their party before Jefferson took office. Madison came in as Jefferson’s secretary of state and they overturned the statutes creating new judicial positions. Marbury was one of the Adam’s appointees. His appointment was signed and sealed, but not delivered to him. Madison, the incoming secretary of state, refused to deliver it. Marbury filed for a Writ of Mandamus directly with the Supreme Court to force delivery.
ii. I: 1. Does the applicant have a right to the position he was appointed to? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from the court?
iii. H: 1. Yes. The appointment of Marbury to the court was the exercise of a vested legal right. 2. Yes. Since any vested legal right requires that there be a remedy in the case of violation, there must be a remedy. Further, since the decision was a ministerial decision rather than a discretionary decision, it is okay. And, 3. No. The court lacks the jurisdiction to issue the writ of mandamus because Section 13 of the Judicial Act of 1789 is unconstitutional. In deciding, the court pointed to the fact that the Constitution sets the scope of the court’s review over other branches, and the Congress cannot expand that scope.
f. Martin v. Hunter’s Lessee
i. F: Hunter was granted land by Virginia after it was confiscated from Martin, who was a former British subject. The Virginia Court of Appeals found for Hunter and denied Martin’s claim. The matter was then appealed to the Supreme Court which reversed and remanded. Virginia refused to remand stating that Section 25 of the Judiciary Act, which allowed the Supreme Court to review these cases, was unconstitutional and that as a result the Supreme Court lacked jurisdiction.
ii. I: Does the Supreme Court have appellate jurisdiction over state court decisions involving a federal question?
iii. H: The First Judicial Act gave the court appellate power over state courts and this power is supported by the constitution. Act 6 of the constitution states that the Supreme Court will have appellate jurisdiction in all other cases (besides those that come up through the federal court system) and as a result it can be inferred that the Constitution thought that some constitutional issues would come up through the state system and be included.
g. Cooper v. Aaron
i. F: After the ruling in Brown v. Board of Education, Arkansas claimed that they did not have to segregate and that they had a right to litigate the issue themselves since the case did not deal with them in particular.
ii. I: Are states bound by the Court’s interpretation of the Constitution?
iii. H: Yes. The Supreme Court’s interpretation of the Constitution becomes the “supreme law of the land”. Through Article VI, their interpretation is binding on all of the states.
III. Federalism
a. THE COMMERCE CLAUSE
i. Article 1, §8, 3 Gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
ii. Since we have a federal government of enumerated powers, the powers of Congress are restricted to those that are specifically enumerated in or said to be implied by the Constitution.
iii. Analysis of whether Congress has a power (McCullough):
1. The ends are legitimate within the scope of the Constitution
2. The means are not prohibited by the Constitution and are “plainly adapted” toward the ends
3. The means are consistent with the scope and spirit of the Constitution.
iv. Congress may regulate three things as interstate commerce (Lopez):
1. Channels of Interstate Commerce
2. Instrumentalities of Interstate Commerce
3. Those things that have a substantial affect on interstate commerce
a. To get the aggregation principle (Wickard), the regulated behavior must be an “economic activity” (Lopez; Raich).
b. Economic activity is defined as the “production, distribution, and consumption of commodities” (Raich).
v. United States v. Lopez
1. F: Lopez (high school student) was arrested for carrying a concealed handgun and bullets in violation of the Gun-Free School Zones Act, which prohibited the knowing possession of a handgun within a school zone. In his defense, Lopez appealed on the ground that the Act was unconstitutional because there were inadequate findings by Congress as to a sufficient relationship to IC.
2. I: Was the Gun-Free School Zones Act constitutional?
3. H: No. The act neither regulated economic activity nor required the possession to be in any way connected to interstate commerce, so it is beyond Congress’ powers in the Interstate Commerce Clause.
4. R: Congress may regulate the instrumentalities, channels, and things that have a substantial affect on interstate commerce.
a. This act would only fall into the category of substantial affects on interstate commerce.
b. The court distinguishes this from Wickard, since this case does not involve an economic or commercial activity like the growth of wheat.
c. Allowing this regulation would go beyond the enumerated Congressional powers.
5. C: Kennedy and O’Connor concurred on the idea that education is a traditional state concern and should continue to be treated as such.
6. D: Breyer dissented out of concern that this case was going to pull back 60 years of Commerce Clause jurisprudence.
a. There is a rational basis that guns in school zones affect interstate commerce.
b. Guns in school zones affect education which clearly affects interstate commerce.
c. There is plenty of precedent (e.g., Katzenbach) of Congress regulating non-commercial activities.
vi. US v. Morrison
1. F: Morrison assaulted and repeatedly raped a female while making vulgar remarks about women. VAWA provided a private remedy for victims of any gender motivated violent crimes. The victim brought suit for this private right of action in Federal Court and Morrison challenged Congress’ power to regulate gender motivated violence under the commerce power. Congress argued that the law was based upon their reasonable findings that violence against women had a substantial effect on interstate commerce.
2. I: Was the private remedy provided by Congress constitutional?
3. H: No. Congress can only regulate things that have a substantial effect on interstate commerce in the aggregate if that activity is economic in nature. Violence against women is not economic in nature, and thus cannot be regulated by Congress under the commerce power, even if it does

, since manufacturing precedes interstate commerce and only affects it “indirectly”.
4. D: Harlan dissents with a utility/working Constitution argument—if we can’t break up monopolies, then in effect we can’t regulate interstate commerce at all.
xii. Champion v. Ames (The Lottery Case)
1. F: Plaintiff was convicted of transporting lottery tickets from state to state when he sent Paraguayan lottery tickets from Texas to California via Wells Fargo. He challenged the constitutionality of the law prohibiting the transport on the grounds that it wasn’t interstate commerce for him to send them through a third party.
2. I: Does the sending of lottery tickets across state lines constitute interstate commerce?
3. H: Yes. The power of interstate commerce is “plenary” and “complete in itself”. Congress can ban the interstate transportation of lottery tickets to protect the states’ rights to ban the sale of lottery tickets within their own borders.
4. D: Fuller argues that this is a long step toward eliminating state powers in favor of federal ones.
xiii. Houston, East & West Texas Railway v. US (Shreveport Rates Case)
1. F: A railway company was charging more per mile for transport between Texas and Louisiana than they were to cities within Texas. In response, the International Commerce Commission set a maximum rate for shipments between Texas and Shreveport to stop discrimination. This ruling was challenged.
2. I: Did Congress have the authority to regulate the rates charged by railways if this would include regulating rates that are entirely intrastate?
3. H: Yes. Congress has the power to regulate all behaviors that have a “close and substantial relationship” to interstate commerce. The rates charged in interstate rail lines have such a close relationship to IC.
xiv. Hammer v. Dagenhart
1. F: In 1916 Congress enacted the Child Labor Act. The act prohibited the interstate transport of goods that were produced in factories that utilized unpopular child labor practices (children working under the age of fourteen or fourteen to sixteen year olds working for more than 8 hours a day, six days a week). The father of two children who worked in a cotton mill in NC secured an injunction and challenged the constitutionality of the law.
2. I: Can Congress regulate work place conditions?
3. H: No. Congress cannot regulate the completely internal process of manufacturing. States are free to enact policies which create competitive imbalances, and it is not the work of Congress to neutralize them.
xv. Schecter Poultry Corp. v. US (Sick Chickens)
1. F: National Industrial Recovery Act was partly designed to ensure quality of chicken by preventing sellers from requiring buyers to purchase the entire coop of chickens (including sick ones); it also authorized the President to approve codes of fair competition that included rules re a 40 hour work week, minimum wage, prohibition of child labor, right of employees to organize, and a variety of trade practices. Schechters were convicted of violating the wage and hour provisions of the code and a trade practice requirement.
2. I: Does Congress have the authority to pass NIRA?
3. H: No. Congress only has the power to affect things that have a direct affect over interstate commerce—those things that indirectly affect interstate commerce are left to the states.