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

CONSTITUTIONAL LAW – RAHDERT
I.       Introduction to the Constitution of the United States
A.                       History of Constitution: Articles of confederation didn’t work (b/c everything was done through legislature, no judicial or executive branch)→ therefore there was no means of enforcing national law, other than through the states who would sometimes ignore the federal law and therefore it would not be applied in that particular state. So the delegates drafted the constitution.
B.                       Why U.S. Constitution: U.S. needed – one voice to respond to foreign powers, national system of armed forces, system of taxation, address state economic rivalry, central authority, a national judiciary.
i.        Used system of checks & balances to accomplish this.
ii.      All 3 branches constrained by “Rule of Law”:
o Executive → subject to laws of congress re: appointment
o Legislative → laws in conflict with const. are void
o Judiciary → court’s jurisdiction is limited by the constitution
§“Rule of law” requires judicial reinforcement of constitution. It is trusted to judiciary branch b/c the judiciary is the least dangerous branch (life appointment = no political persuasion)

II.     The Idea of Judicial Review:Courts have authority to declare laws unconstitutional
·         Implied authority (not written in the constitution – but inferred from the structure of the constitution and its role)
·         Most potent check judicial branch has on legislature
A.                       Marbury v. Madison – 1) constitution is superior to statutes where there is conflict 2) The judiciary has the authority (and the duty) to declare a statute unconstitutional (i.e. establishes judicial review)
i.           Constitution is supreme law of the land (therefore the judiciary act, which was deemed unconstitutional = void)
ii.         Supreme Court only has appellate jurisdiction. (Sup. Ct does NOT have all jurisdictions) – case went directly to sup ct, where judges said they did not have jurisdiction.
B.                       Martin v. Hunters Lessee – Sup ct could review the constitutionality of a decision by a state’s highest court.
i.           Supreme Court review is essential to ensure uniformity in the interpretation of the constitution.
ii.         State law is subordinate to federal law.
C.                       Cooper v. Aaron – No state official has authority to disagree with Sup. Ct decision.
LEGISLATIVE POWER – Art 1 § 18 (Necessary & Proper Clause)
I.       The Doctrine of Implied Powers:Although the fed govn’t may act only where it is affirmatively authorized to so by the constitution, the authorizations does NOT have to be explicit.
A.     McCulloch v. Maryland – ct found that particular powers could be implied from the explicit grant of other powers. Here, ct found congress had the power to create a corporation (ie. bank) if this was incidental to carrying out one of the constitutionally enumerated powers (ie. raise revenue).
i.        Ct relied on “necessary and proper clause” (Art 1§ 18) = says laws are constitutional that are “necessary & proper” for congress to carry out their enumerated powers (explicitly states notion of implied powers).
·         Limitation – Congress cannot adopt a law that is expressly prohibited by another provision of the constitution.
·         Necessary and proper clause – is meant to expand congress’s powers not limit (b/c it is placed among congress’ powers not limitations).
ii.      The word “necessary” does NOT mean absolutely necessary. (b/c it is coupled with “proper” which never means absolutely necessary)
iii.    Grant of power to the U.S. govn’t (ie. power to create a bank) carries with it the implicit power to limit the states (ie. Maryland’s power to tax).
B.     “ends v. means” = constitution is about “ends” of government, not the details (the ends are enumerated). “means” are meant to be worked out over time (left open by necessary and proper clause).

THE COMMERCE POWER- Article 1 § 8 – “Congress shall have the power…to regulate commerce with foreign nations and among several states, and with the Indian tribes”
·         Questions the Court is considering (in determining Commerce Power):
1)   What is “commerce”?
o        Include one stage of business or all aspects?
2)   What does “among the several states mean”?
o        Does it mean direct effect on interstate commerce, or any effect on interstate commerce will suffice?
3)   Does the 10th amendment limit Congress? 

I.       19th Century View –broadly defined but minimally uses
A.     Gibbons v. Odgen – Congress’ power over commerce is “plenary” = (very broad).
i.        “Congress could legislate with respect to ALL commerce which concerns more states than one”.
1)      “commerce” included not only buying and selling but ALL “commercial intercourse” and “navigation” (very broad)
2)      “among the several states” = power does not stop at the external boundary line of each state – so long as it concerns more than one state (very broad)
3)      “no area of interstate commerce is reserved for state control” = implicit rejections of 10th amendment as a limitation on Congress’ power to regulates interstate commerce.
II.    Early 20th Century Developments– a limited federal commerce power, using 10th amendment as limit (narrowapproach)
1)      “commerce” – narrowly defines
2)      “among the several states” – applied restrictively (narrowly defined) = must be 1) direct and 2) substantial effect on interstate commerce
3)      Congress violates the 10th amendment when it regulates matters left to state governments.
A.     U.S. v. E.C. Knight Co – (sugar monopoly case): manufacturing ≠ commerce
B.     Carter v. Carter Coal Co – (fed regulation of coal): production of coal ≠ commerce
i.        Production/ manufacture of goods which are later to be shipped interstate is NOT interstate commerce (must be “direct”) 
C.     Schrevenport Rate Cases – ( whether state could set rates for transport of goods totally within TX, that were unfairly higher than rates to Shrevenport, LA which was closer ) – the commerce power included the right to regulate “all matters having such a close and substantial relation to interstate traffic that control is essential or appropriate to the security of that traffic” – the fact that the activity being regulated was intrastate did not place it beyond congress’s control b/c the ultimate object was protection of interstate commerce.
ii.      “substantial economic effects” – Congressional regulation was found to fall with commerce power so long as the activities beings regulated had a “substantial economic effect” upon interstate commerce
D.     “Poultry case” – ct limited congress’s power to regulate intrastate transaction by restricting congress’s power to only those matters with a “direct effect” on interstate commerce.
i.        T

.
ii.         Ct relied on Wickard v. Filburn (cumulative effects)– even though this restaurant is small and has only insignificant effect on commerce, many other restaurants such as this exist and the aggregate effect has an effect on interstate commerce
iii.       Deferential Standard of Review – Congress had rational basis for regulating this activity as commerce. (see Perez v. U.S)
C.     Perez v. U.S – (federal regulation of loan sharking)
i.           Deferential Standard – if Congress has rational basis that activity has cumulative effect on interstate commerce that is enough for Congress to regulate under the commerce clause (rational basis IS enough)
V.     Recent developments – Narrowing the Commerce Clause & revival of 10th amend. as a limitation.
A.     Lopez– (Federal Gun-free school zone act exceeds congress’ powers under C.C) – Ct strikes down act b/c has little connection to interstate commerce
i.           Congress can regulate 3 categories under C.C:
1)      Channels of interstate commerce (ie. Darby, Heart of Atlanta)
2)      Instrumentalities of interstate commerce (ie. Shreveport Case)
3)      “substantial effect”  – merely “affects” interstate commerce is not enough must “substantially effect”
o     If the substantial effect is too tangential (indirect) – not upheld b/c then there would be essentially no limitation of federal power under C.C. (destroying balance of state v. fed govn’t powers).
ii.         Standards of Review:
o     Economic activities = mere rationality standard (Ie. Wickard, Atlantic Hotel)
o     Non-economic activities = higher standard of review(Lopez- gun possession)
iii.       Message to congress – to do hmwk, law must make an attempt to connect to interstate commerce or it will not pass.  * first time Congress invalidated fed statute on grounds that it was beyond Congress’ Commerce power.
o     Jurisdiction hook – if congress only banned the guns that passed in interstate commerce – the regulation might have been okay.
iv.       Dissent – rejects distinction between economic and non-economic, and advocates rational basis standard of review.         
B.     Morrison – (Federal Violence Against Women Act cannot be regulated by CC) – b/c it is non-economic activity.
i.           Test: Applicable Standard of Review
1) What is Congress regulating? (violence against women)
2) Is this regulated activity economic? (no)
o Economic = mere effect on interstate commerce
o Non-economic= must have stronger showing of effect on interstate commerce
Ø      No “contingency upon contingency” reasoning
Ø      No “cumulative effect reasoning” 
ii.         Wickard “cumulative effect” reasoning may only be used when regulating economic activities.
C.     Solid Waste Agency –