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Constitutional Law I
University of California, Hastings School of Law
Paul, Joel Richard

Constitutional Law I- Spring 2017 Joel Paul
How should the Constitution be interpreted?
Limits on Judicial Authority
Interpretive limits: raise the question of how the constitution should be interpreted
Congressional limits the ability of congress to restrict the fed court jurisdiction
Justiciability limits: judicially created doctrines that limit the type of matter that federal courts decide
Interpretive limits
Originalism: courts are justified in protecting constitutional rights only if they are clearly stated in the constitution
Scalia: focus should not be on the framers intent but the meaning of the constitution terms of the text
Non-originalist: courts should have discretion. Court should interpret the constitution and important that the constitution is not static so it can evolve to meet the needs of society
Methods of Interpretation
Textual interpretation: plain reading of the language
(Heller- Scalia argues meaning of the people)
Contemporaneous understanding or practices at the time of adoption
(Heller- Scalia refers to contemporary understanding of militia)
Intention: of the framers at the time
(Scalia doesn’t like. McCulloch, Marshall refers to the intent of the ratification conventions)
Subsequent Practice: what happened after the adoption of the statute. Practices of state people and scholarly authorities.
(Heller, Scalia refers to subsequent adoption of state constitutions)
Precedent: CL, decisions of prior courts
(Heller, Scalia looks to the Miller case)
Responsive Interpretations
Structural: rules inferred from relationships of different branches or functions.
(Malbury, Marshall argues, “it is emphatically the province of the court to decide what the law is”)
Ethical: rule derived from the values fundamental to the constitution. How the government should be.
(McColloch, Marshall argues democratic accountability principle)
Prudential: balancing interests, cost efficiency and outcomes (cost benefit analysis)
(Heller dissent, Steven discusses the need for the DC law)
Teleological, rules derived as needed to achieve ends (what is the purpose)
McCollough, Marshall discusses the necessary and proper clause)
DC v. Heller
District of Columbia created a general prohibition on handguns
Whether the DC prohibition of handgun in the homes violates the 2nd amendment? Whether the 2nd amendment protects only militias right to bear arms or additionall protects individual rights?
Second Amendment, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”.
Operative Clause: “Right of the people”
This lang is also in 1st , 4th and 9th amendment
In all of these amendment the rights are referring to individual rights
In other parts of the CST. “ people” refers to the whoel people
Operative Clause “Keep and bear arms”
Meaning of “Arms”
Keep and bear is according to Scalia does not believe they are a term of art associated with the military (Stevens argues this)
Arms: the type of arms you would have been able to hold at the time of the constitution (uses a dictionary definition)
Must read rights in terms on contemporary technology
Acknowledges that arms can be limited but we should not take away arms that are in common use
Prefatory clause: “A well regulated militia, being necessary to the security of a free state”
“A well regulated militia”
A well regulated militia referred to able bodied white men during that time
Scalia looks at common practice not intention. Problem with intention is because this is so long ago.
“security of a free state”
means security of a free polity( all the people not a refernace to individual states)
they did not want a standing army
States had these provisions because they were afraid of a standing army because eof the English civil war
Second Amendment is not unlimited
You cannot carry any weapon you want in any manner
You cannot carry in schools of government buildings and the mentally ill or people who have had felonies cannot
Miller: can only carry weapons that are in common use at the time
You can impose restrictions on the sale
Stevens Dissent: D.C. is dealing with a crisis many people being shot which seem justifiable under the circumstances. Scalia says this is a policy argument and the 2nd t right is greater
History of The Constitution
Articles of Confederation (1776)
Powers Given: congress has the authority to wage war, coin money, establish post offices
Powers NOT Given: tax, commerce, treaties needed consent of states, no exec or judicial branch only state courts
Problems that occurred due to the articles of confederation
States printed money with different values at different times
Treaty of Paris: US agrees that debt to Brit would get paid
Did not happen thus troops remained and US did not look credible
Two Approach’s for states to get rid of debt failed
Raise taxes on landowners which made farms foreclose
Cause Shays Rebellion: uprising against taxation
Rhode Island
Print money to pay off debts. $ depreciated
Trevett v. Wheedon
P sues Wheedon for not accepting RI currency.
Wheedon argues to RI court that depriving right to jury trial was unconstitutional (despite no constitution). RI court strikes down law
RI legislature fires all RI judges
Constitutional Convention (1787)
Each state had to approve the ratification
Two Parties emerged
Federalist: supported the federal constitution
Anti-Federalist: opposed the constitution
Strong central government was a threat to the sovergnty of the state and individual liberties
The Federalist Papers
Federalist #10 Madison
Factions are the primary problem in government
Factions are less likely to take control and oppress other faction in a large government representing many interests
Factions are more likely to take control and oppress other factions in small homogenous communities.
Federalist #51 Hamilton
To control abuse, make separate branches with checks on each other
Article 3- Judicial Power
Article 3, Sec 2 Origi

d that supersedes the state law
Absence of Expressed limitations (Textual argument) Art 3 §2 doesn't talk about which courts are subject to appellate power of the SC, but all cases arising out of federal law are subject to appellate power – Cases are the basis of jx, not the courts.
Different than Malbury where they say absence of lang for a particular jurisdiction means they do not have that jurisdiction
Cooper v. Aaron
The SC ordered the schools to be desegregated and the governor wouldn’t do it. SC issued an order that said Eisenhower had to carry out the courts decision so he forced the desegregation.
Final judgement that the SC was the final arbiter of the constitution and both the states, executive and congress had to comply.
Judicial Interpretation
McCulloch v. Maryland
Hamilton- Established the first bank of the US First bank. After the war the government took on the states debt and issued government loans to refinance the debt and part of the compromise between Hamilton and Jeffersonian. 1811 the bank lapsed/ GOP in control and refused to give the bank another charter. When there was another war in 1812 it was a huge national burden and economic crisis. Madison president decided to make another national bank.
GOP did not want more power in Exec branch. Bankers looked down on/ trying to make money off farmers. States had own banks and this would compete with them. Large corp.
Maryland wanted to push the US bank out of the state. Maryland law-banks that did not have states charter had to buy paper stamped by the state if not the money not legit..
Two Questions
Whether congress can incorporate a bank?
Whether the state has the right to tax the federal bank?
First-Whether congress can incorporate a bank?
Textual argument- In Article I Section 8 there is not enumerated power for congress to have a national bank
Historical argument- Congress did this in the past
IMPLIED POWERS: “We must never forget this is the constitution we are expounding”- CST not read as other docs
CST cannot contain all of the powers of congress. There is no phrase that excludes implied powers.
Necessary and Proper
Article 1 section 8 clause 18 “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers”
Means only have to be rationally related to the enumerated powers.
Necessary does not mean absolutely necessary
Means: convenient, useful, or essential to another
They do not have to be “absolutely necessary”