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Constitutional Law I
Temple University School of Law
Reinstein, Robert J.

I.         Introduction to the Constitution
a.       The Document and its Plan of Government
a.      Themes of the Constitution
1.       Creation of a national economic union
1.        States cannot impose taxes on imports or exports
1.      Applies both to imports/exports abroad and to and from other states
2.        Federal government cannot tax exports but can tax imports
1.      Tax on imports must be uniform throughout the United States
3.        Federal government has treaty power; states are prohibited from forming treaties
4.        Federal government has power to regulate foreign commerce and interstate commerce
5.        Common currency
1.      Federal government can coin money and regulate value of currency; states are prohibited from coining money
2.       Creation of a National Foreign and Defense Policy
1.        War powers
2.        Treaty powers
3.        President is Commander in Chief of armed forces
1.      Asserts civilian control over militaries
2.      Keeps states out of business of fighting machines
4.        President can recognize foreign nations/governments
5.        Congress can federalize state militias to execute laws of Union and suppress rebellions
3.       Federalism
1.        States can pass laws without federal approval
1.      Constitution empowers the federal government; it puts restraints on states, but it’s not the source of their power
2.        U.S. is a government of specified, limited powers
1.      Reaffirmed by 10th Amendment; powers not delegated to federal government by Constitution nor prohibited by it to the states are reserved to the states or the people
3.        Supremacy Clause – Art. VI
1.      Federal law prevails if it is constitutional
2.      Congressional statute trumps laws of state constitutions
4.       Democracy
1.        Constitution establishes four entities
1.      House
1.        Elected by “the people”
a.       Voting qualifications established by states – most required white male property owners; some exceptional states allowed women and African Americans to vote
2.        Under 15th Amendment, states couldn’t deny franchise on basis of race
3.        19th Amendment gave women right to vote
4.        24th Amendment eliminated poll tax
5.        26th Amendment reduced voting age to 18
2.      Senate
1.        Selected by state legislatures under original Constitution – no popular election
2.        Amendment XVII changed this (passed in 1913)
3.      Executive
1.        Electoral College System
4.      Judiciary
1.        Appointed by President with advice and consent of Senate
5.       Other Individual Rights
1.        Article I, Sections 9 and 10
1.      Habeas Corpus
1.        Cannot be suspended unless in cases of rebellion or invasion; demands legal basis for holding person in custody
2.      No Bill of Attainder
1.        People have a right to trial by jury;
3.      No ex post facto law, i.e., government cannot make criminal law retroactive
2.        Bill of Rights
1.      Originally applied only against federal government
2.      Amendments 13-26 guaranteed individual rights against the states
6.       Slavery
1.        20-year allowance of slave trade
2.        3/5 ratio
3.        Fugitive slave provision – Art. IV, Sec. 2, Cl. 3

b.       Judicial Power
a.      Origins of Judicial Review
1.       Nothing in the Constitution expressly gives the Supreem Court power to rule on the constitutionality of Acts of Congress or state statutes, nor power to review decisions of state courts. Art. III merely creates the Supreme Court and extends judicial power to all cases arising under the Constitution, the laws of the United States, and treaties made under their authority. Section 2 spells out those cases in which the Supreme Court has original jurisdiction. In all other cases, the Court has appellate jurisdiction. 
b.      Judiciary Act of 1789
1.       Congress created the lower federal courts as permitted by the Constitution, but did not give them general jurisdiction in civil cases arising under federal law. The state courts were authorized to exercise jurisdiction over such cases. The Supreme Court was authorized to hear three types of cases on appeal. 
2.       Congress also gave the Supreme Court power to issue writs of mandamus to United States officials. This grant of original jurisdiction arguably violated the specific provisions of Art. III, Sec. 2 of the Constitution, setting the stage for Marbury v. Madison. 
c.      Assertion of Judicial Review Power – Marbury v. Madison
1.       Facts: Marbury was appointed a justice of the peace for the District of Columbia by President Adams and confirmed by the Senate on Adams’s last day in office. His formal commission was signed but not delivered. Marbury sued to have court issue writ of mandamus. Madison refused to deliver the commissions. 
1.        Writ of mandamus – order telling official to do something required by law
2.       Issue: whether the Supreme Court is empowered to review Acts of Congress and void those that it finds repugnant to the Constitution?
3.       Holding: Marbury’s action is discharged because the Court does not have original jurisdiction; Section 13 of the Judiciary Act authorizing the Court to issue writs of mandamus is unconstitutional. 
4.       Arguments:
1.         Individual Rights
1.      Marbury claims his individual rights were violated; Act of Congress guarantees him a five-year term; this depends on whether Marbury was actually appointed
2.      Marshall says Marbury was appointed even though the letter wasn’t delivered because delivery was merely a ministerial act
2.        Remedy: Does Court have authority to order Madison to comply with its decision?
1.      Jefferson argues that the Court doesn’t have the power to direct the executive branch
2.      Marshall counters that he is not ordering the President but is informing what the law is
3.        Is Judiciary Act constitutional under Art. III, Sec. 2?
1.      Marbury argues that since the constitutional grant of jurisdiction is general and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the legislature may assign original jurisdiction to this Court in addition to that specified in the Constitution. 
2.      Art. III, Sec. 2, Clause 2 specifies in what cases the Court is to have original jurisdiction, and that in all other cases its jurisdiction is appellate. Marbury’s claim would render the clause ineffectual. Therefore, the Judiciary Act’s grant of original mandamus jurisdiction is unconstitutional and void. 
5.       The Legitimacy and Scope of Judicial Review
1.        Judicial review is the duty of the court to say what the law is and apply it to cases. The Constitution is the paramount law of the land

der the 10th Amendment, if something is not listed, Congress cannot do it
2.        Congress counters that it has power to do this under necessary and proper clause. Under this clause, any appropriate means Congress uses to attain legitimate ends that are within the scope of the Constitution and not prohibited by it, but consistent with the letter and spirit of the Constitution, are constitutional. 
3.        Although the federal government is one of enumerated powers, which are found in the Constitution, the Constitution cannot contain an accurate detail of all the subdivisions of governmental powers and all the means by which they may be carried into execution. Otherwise, the Constitution would become nothing more than a legal code. The government must have the ability to execute the powers entrusted to it through the best available means.
4.        Any means that directly executes a power enumerated in the Constitution may be considered incidental to the enumerated power. The word “necessary” in the Necessary and Proper Clause does not limit Congress to indispensable means; rather, the term enlarges the powers vested in the federal government. Congress has discretion in choosing the best means to perform its duties in the manner most beneficial to the people.
1.      It was listed among affirmative powers of Congress and not among limitations on them
2.      10th Amendment would contain word “expressly” if it were meant to limit Congressional powers in the way Maryland argues
5.        The creation of a corporation is one of those powers that can be implied as incidental to other powers or used as a means of executing them. The incorporation of the Bank of the United States is a convenient, useful, and essential instrument in the performance of the fiscal operations of the federal government. 
1.      Compares clause to Art. I, Sec. 10, which prohibits states from imposing any taxes on foreign trade unless absolutely necessary; term doesn’t always mean essential if we look at in its context. Necessary and proper clause wasn’t qualified by term “absolutely”
2.      Private bank is necessary to carry out the following national powers
1.        Taxing powers
2.        Borrowing power
3.        Power to regulate commerce
4.        War powers, including raising and supporting armies and navies
6.        Means must be reasonably calculated to carry out the enumerated powers
1.      The court will not inquire into the degree of the law’s necessity because this is a legislative and not judicial function
5.       Rational Basis test
1.        Let the end be legitimate
1.      End is enumerated power
2.        And all means that are appropriate and plainly adapted to that end
1.      calculated – this gives extreme deference to Congress
3.        And are not prohibited by something in the Constitution
1.      are Constitutional
4.        In other words, Congress must have a rational basis for its decision. So long as what Congress is doing is reasonable, courts won’t second guess it. 
II.        Congressional Power and the Limits of Federalism