Select Page

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



McCulloch v. Maryland

-The necessary and proper clause should be interpreted broadly.
-There are implied powers within the constitution, beyond the enumerated powers
– Marshall was arguing for a broad interpretation of the Commerce Clause as well

– The case brought about an expansion of Federal power based on the interpretation of “necessary and proper” as being anything “useful and convenient” to let the gov do its work.
– 10th amendment does not limit the fed gov; it restates that Congress only gets powers in Const not against the constitution, but that includes his above definitions with useful and convenient.
– If the SC took power away from the legislature here by saying it couldn’t do this, it would infringe on their separated power.

Zones of Power, power as relates to statutes and the legislature:
Steel Seizure
Truman attempts to seize steel mills in Korean War, SupCt overrules him.
Black: no inherent presidential powers.
can only act when:
mandated by statute
commander and chief power
mandated by constitution
Three categories in Jackson’s concurrence – became dominant take-away
1. acting within explicit or implied Congressional approval. strongest
2. when Congress is silent: can act (differs from Black).
3. contrary to congress. “lowest ebb” of exec power.

executive agreements:

US v Curtiss-Wright
Found in favor of the government, reasoning that while the Constitution may not explicitly say that all ability to conduct foreign policy on behalf of the nation is vested in the President, it is nonetheless given implicitly and by the fact that the Executive, by its very nature, is empowered to conduct foreign affairs in a way which Congress cannot and should not.
–congress empowers prez to say you can’t sell to warring south american nations.
–sutherland sez: broad powers to exec. actually come from before Const.
–court has never held an exec agreement as usurping senate’s treaty power

Dames and Moore v. Regan
–narrower approach to presidential power. following jackson’s approach above.
–Carter freezes iranian assets in US during hostage crisis, this agreements ends the stalemate and indemnifies Iran against lawsuits. Dames and Moore file against president to be able to sue.
–traditionally exec agreements can be overriden by congressional statute, but treaties cant
–Rehnquist says challenge is no good: the exec order came within that 1st category of Jackson. that’s why it is ok.
–long history of exec agreements, congress implicitly approved

Foreign Intelligence Surveillance
– bush wanted a domestic surveillance program
–fisa courts already exist, you have to get warrant
bush wanted to operate outside of those
–data mining.
–ashcroft relies on Art II, constant state of alert

District of Columbia v Heller
– scalia takes the textual approach – analyzes the language.
which phrase qualifies the other.
– also looks at the history, what the founders meant at the time
problems with scalia: he gives the OK for some restrictions, which derived from english common law.
but says english common law not relevant, it’s what founders wanted.
–stevens argues that the second Amend protects right for military, not individual
–breyer argues from an interest-balancing approach..
looks at why the statute was written, what it is supposed to do
localism: they know what’s best, that’s why we have a fed system…
–reinstein goes with the stevens approach: it doesn’t mean that everybody can own a gun.

Marbury v Madison
–jefferson refuses to deliver commissions for fed court given by adams
– marshall’s opus
marshall basically sez the court can review the constitutionality of laws
– in a case properly before it, the court must decide according to the law
if two laws conflict, court has to decide which to apply
constitution is supreme law of land
if there is a conflict btw const and statute, court applies constitution
this establishes, in essence, judicial review.

Martin v Hunter’s Lessee
VA took the land of a tory before the war, it goes to VA supreme, they say one thing, US Sct says another, basically
– sup court says
-lower fed courts don’t have to exist: they are created by congress. if they didn’t sup court would have no appellate jurix.
-therefore they have jurix over state courts.
-fed law will not be interpreted consistently thoughout states: there must be a neutral umpire.

Cohen v. VA
selling lottery tickets
virginia state law violated and convictions upheld
Sct sez: we are final arbiters of state law
sup court can review state court decicions


Congress has power to regulate commerce
with foreign nations
among the several states
w indians.
Gibbons v Ogden: first view. defines commerce: commercial intercourse, among: intermingled, btw and inside a state if affects other states, regulate: proscribe rule governing commerce.
steamboat monopoly case: Marshall sez that commerce among means intermingled with
intercourse, not just trade of commodities. so they get navigation here (steamboats)

–Local activities can be regulated

st plausible. leg. judgment.

Hodel and Perez
“A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the means selected and the asserted ends.” Hodel.
Perez: congress can regulate loan sharking (criminal activity) under commerce clause.

“unless the activity is non-economic in nature and traditionally left to the states.
(unless it is part of an overall fed regulatory scheme ie raich below).

kid carried a gun to school, violated fed “gun free school zone act of 1990”
court: carrying a gun to school is not an economic activity.
NEW TEST: less def to congress and more respect for states rights.
this is crim statute; nothing to do with congress,
trad left to states: regulating education? no way.
(NCLB born of tax and spend)
too attenuated.
thomas concurrence: reevaluate commerce clause and limit
dissent: school violence means no learning means less economic growth, should pass “substantial effect in the aggregate” test

fed statute: violence against women act. VA tech didn’t act on the rape of a student, she sued under civil portion of the fed act.
court: this is lopez again.
reinstein: § 5 of the 14th amendment; should be able to “enforce by appropriate legislation.” under mcculloch they should be able to pass. run test: end legit, means proper, not prohib by const.

New Evaluation of Commerce Clause:
– may regulate use of int comm: motive irrevl
– congress can regulate and protect instrumentalities of int com, including removing obstacles
– congress can reg local activities when there is a rational basis to conclude it has sub effect.
– UNLESS the activs are non-economic and trad reg by states.
– provided that it doesnt’ control when acts are necessary to reg as part of a overal, valid, reg scheme (gonzales)
therefore if its within the comm clause, it doesn’t violate 10th.

Gonzales v Raich
can do certain things under commerce power still.