Con law with David Faigman, Spring 2010
Table of Contents
I. Historical Background Page 2
II. Methods of interpretation Page 2
III. Supreme Court’s Authority Page 2
A. For judicial review: Marbury gives the SCOTUS power to review and determine the ultimate law Page 3
B. Over state actions: Martin V Hunter’s Lessee says that the Court can review state actions.
C. Justiciability: Baker v Carr gives a set of factors to use in determing when something is justiciable. Page 3
IV. Federal Legislative Authority Page 4
A. Over states: McCulloch v MD gave Congress broad authority over states
B. Commerce Power: Pre new-deal it wasn’t used very often. New deal, federal regulations often upheld. Now, after Morrison and Lopez, there is an opening for federal regulations to be challenged Page 5
C. Other powers Page 7
D. State immunity from federal legislation
V. Limits on State Power Page 9
A. Preemption: Three categories Page 9
B. Dormant Commerce Clause: Pike Balancing test
C. Privileges and immunities Page 15
VI. Separation of powers Page 15
A. Youngstown: Three categories of presidential action Page 15
B. Executive power Page 17
C. Separation of powers ambiguities Page 20
VII. Bill of Rights Page 23
A. Natural rights
B. 14th Amendement
C. Incorporation debate
D. 2nd Amendment
I. Historical background
1. The purposes of the constitution (FROM CHERMERINSKY)
2. Constitutional convention
a. 1787 the constitution was drafted, but it took several years for it to actually be
b. notes on the constitutional convention weren’t available until 1840
c. these are all important for the idea of original intent
i. Who’s intent? The drafters or the ratifiers?
3. Individual liberty
a. constitutional rules are utliliarian, towards the goal of individual liberty
b. the basic unit of sovereignity in the constitution is “we the people”
B. Separation of Powers
1. Three branches
a. Legislative (Article I)
b. Executive (Article II)
c. Judiciary (Article III)
2. ambition checking ambition
C. The recurring theme of federalism
1. Federalism and anti-federalism
a. federalism: people are the problem, not the government
i. A large republic is better for individual rights
ii. Hamilton: strong central government, strong executive
b. anti-federalism: government is the problem, not people
i. Small republic is better for individual liberty
ii. Jeffersonian ideal: rural society
II. Methods of interpretation
A. Text: Always the starting point but generally does not provide an answer
B. Original intent/meaning:
1. What was the original understanding of the purpose of the Constitution when the words that were chosen were drafted and ratified?
C. Constitutional structure: Look at the separation of powers, which branch given authority
D. Precedent: Rules from earlier cases (non-binding!)
E. Constitutional facts: empirical arguments regarding the affects of the way constitution applied, for example the arguments about psychological immaturity of teenagers in Roper v Simmons
F. Constitutional scholarship:
G. Contemporary values: Looking where society is going
III. Supreme Court’s Authority
A. Authority for judicial review
a. Historical context
i. Marbury was a Federalist and the whole mandamus issue was
concerning a Federalist judicial nominee after Jefferson, an anti-
Federalist had been elected.
b. In Marbury the court had to answer three issues:
i. Does Marbury have a right to a commission?
ii. Do the laws afford Marbury a remedy?
iii. Can the Supreme Court issue this remedy? Is mandamus an appropriate remedy?
c. essential holding: In answering these questions Marshall also established the Court’s authority for judicial review
i. First, Marshall says we have a written constitution
ii. Next Marshall says that it is the role of the Courts to interpret the law
iii. Finally Marshall points to the supremacy clause which says that
the Constitution is the supreme law of the land.
– judges take an oath to uphold the Constitution and so
they must do this when interpreting the law
– The Supreme Court has the supreme interpretive power
B. Authority for judicial review of state actions
1. Martin v Hunter’s Lessee established the Court’s authority over states
2. Facts: Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the Revolution. He died in 1781 and left the land to his nephew, Denny Martin, who was a British subject. The following year, the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. The Jay Treaty seemed to make clear that Lord Fairfax was entitled to the property. The Supreme Court declared that Fairfax was so entitled, but the Virginia courts, where the suit arose, refused to follow the Supreme Court’s decision.
a. essential holding: The court held that it had the juridisction and the authority to review state acts under the Constitution, laws and treaties of the United States
a. the authority comes from the structure of the government as established
by the Supremacy Clause of Article VI in conjunction with Article III.
3. Justice Story’s reasoning was based on several factors:
have “independent content”. It requires an enumerated power
– here Marshall makes a classic textual argument that necessary and proper does not mean absolutely necessary and proper since that is used elsewhere in the constitution
b. essential holding: Marshall’s answer to the second quesiton is NO, MD can’t tax the bank because “the power to tax is the power to destroy”
i. says MD can tax the bank in a non-discriminatory way because then the feds interests will be virtually represented by the other banks in the state
c. an important point in McCulloch is that Marshall holds that the Constitution derives its power from PEOPLE not STATES!
2. In US Term Limits, Arkansas voters adopted term limits for Senators to the US Senate.
a. issue: Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the Constitution?.
b. essential holding: …allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a ‘more perfect Union.'”
c. the court addressed the issue of “citizenship”, and Kennedy said that state citizens are also federal citizens.
B. Commerce power
a. pre new deal: the
i. Champion v Ames, 1903: the court there upheld a regulation on buying and selling of lottery tickets even though the ends of the regulation were moral
ii. The court reversed itself in Hammer v Dagenhart, 1918
the Child Labor Case. Congress was trying to prohibit interstate commerce of goods produced by child labor and the court
overturned the law citing
– a distinction between manufacture and transport
– the commerce clause not an equal protection clause
– the harm was not inherent in the product itself
iii. In Schechter, 1935, the court then expanded on Hammer and spawned the
– direct vs indirect effect on commerce test
b. new deal
i. In NLRB (1937) the court changes again, abandoning the direct vs indirect effects test as well as the distinction between manufacture
ii. US v Darby 1938 : In this case, the Fair Labor standards act was challenged.