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Constitutional Law I
University of California, Hastings School of Law
Leshy, John D.


¾ of the states and 2/3 of both houses of Congress are needed to amend the Constitution.

Constitution includes the first Ten Amendments (i.e. the Bill of Rights). Of all 27 Amendments (this includes the Bill of Rights), 6 were adopted to overturn Court decisions:

11th – state sovereignty

13th – outlawing slavery, overturned Dred Scott

14th – due process, equal protection (post bellum)

16th – income tax

24th – poll tax

26th – reduced voting age to 18

Horizontal Federalism – Interaction between Congressional (Article I), Executive (Article II), and Judicial (Article III) branches of government.

Vertical Federalism – Interaction between federal government and states.

National government’s power comes from the Constitution.

States are independent. Their power doesn’t come from the Constitution.

Not all Constitutional questions are addressed by the Supreme Court

Ex. Can the president send troops to war without Congresses endorsement?

The Supremacy Clause gives federal law the trump over state law – probably the MOST important provision in the Constitution according to Leshy.




· Power of judicial review not explicitly in Art. III.

· Marbury v. Madison

o Court denies Marbury relief on the grounds that Congress violated the Constitution via §13 of the Judiciary Act of 1789 by giving the Court Original Jurisdiction on writs of mandamus. Since Article III does not express or imply original jurisdiction on mandamus, subsequent acts granting it are unconstitutional. A Congressional Act expanding the Courts power beyond that contemplated by Article III is unconstitutional.

o The Supreme Court has the power, under the Supremacy Clause (art. VI, § 2) of the Constitution to review acts of Congress and find them unconstitutional

o Court obtained original jurisdiction over Marbury case by interpreting §13 of the Judiciary Act to permit original jurisdiction even though a strict reading of §13 could mean the Court only has appellate jurisdiction. à AVOIDANCE PRINCIPLE

§ Thus, Marshal construed the Judiciary Act in such a way that would permit him to obtain the objective of granting the Court the power to determine the Constitutionality of the acts of the other branches.

· Ways in which John Marshal (CJ) could have avoided addressing the Constitutional question (Avoidance Principle):

o Hold that Marbury was not legally entitled to his judgeship due to Sec. of State’s failure to deliver it

o Hold that writ of mandamus not appropriate since Sec. of State has discretion about whether or not to deliver judicial commissions

o Hold that Supreme Court does not have original jurisdiction over the case


§ Martin v. Hunter’s Lessee, U.S. 1816 – When the Supreme Court reversed a Virginia State court of appeals ruling, the Virginia court refused to follow the Supreme Court on the grounds that the Federal Judiciary Act was unconstitutional insofar as it extended the Supreme Court’s appellate jurisdiction to state courts. The appellate jurisdiction of the Supreme Court includes the decisions made by state courts so long as the decision is final (i.e. no other courts in the state can hear an appeal on the ruling).

o (R) Congress has the power to define the appellate jurisdiction of the Supreme Court – Art. III, § 2, cl. 2, “…the Supreme Court shall have appellate Jurisdiction…with such Exceptions, and under such Regulations as the Congress shall make.”

o Congress’ Judiciary Act, § 25, explicitly provides for Supreme Court review of state court decisions. This is codified in 28 U.S.C. § 1257

o Even if the Judiciary Act were repealed, the Supreme Court would have appellate review power of Martin. The Constitution explicitly states that the Supreme Court has appellate review power in cases where a state’s citizens are suing foreign subjects. Art. III, § 2, cl. 1



Nixon v. United States

· FACTS: P was a senator who was impeached / P claims his trial was not by the ‘full’ senate (it was only by a committee) and therefore the impeachment is not valid / P claims the case falls under the political question doctrine

· HELD: case falls under the political question doctrine so the court can’t hear it / as long as the senate said he had a trial, the court was satisfied

· Baker v. Carr à two part test for deciding in nonjusticiable political question:

1. Textually demonstrable constitutional commitment

a. Does it appear that only one branch was given control over something?

2. Lack of judicially discoverable and manageable standard for resolving it?

· The provision of the Constitution that discusses the impeachment proceedings provides a textually demonstrable commitment” to let Congress interpret this portion of the Constitution.

· Art. I, § 3, cl. 6 provides “The Senate shall have the sole Power to try all Impeachments…”

· The Constitution indicates that the mechanics of the impeachment process are under the discretion of the Senate not the Court. The mechanics of the impeachment process are “nonjusticiable” (i.e. a “political question”).

· If you fall within the political question doctrine, it’s beyond judicial comment – the courts won’t address the meaning of the Constitution on issues concerning political questions.

· If the judiciary could review Senate impeachment proceedings, then the power of the Senatorial check on the Judiciary would be undermined.

· Concurrence said the area was not political question, but believe Senate fulfilled its role on try.


U.S. 1912 – Oregon’s Constitution permits citizens to enact laws through an initiative process. When citizens enacted a tax against a utility, the utility sued arguing that the Guarantee Clause (Art. 4, §4) guaranteed a Republican form of government and since the tax was enacted by citizens rather than elected representatives of those citizens, it should be repealed.

· Whether or not a state’s government is republican in form is a political question. It is Congress’ domain to define the character of a state’s government per Art. 4, § 4.

Baker v. Carr. – When Tennessee citizens sue under the Equal Protection Clause (14th Am.) because of a legislative apportionment scheme wherein certain districts had inordinately large populations, the Court held that the issue was justiciable, even though an action under the Guarantee Clause would not have been. The Court stated that, “Judicial standards under the Equal Protection Clause are well developed.”

Powell v. McCormack à JUSTICIABLE CASE. When Art. 1, § 5, cl. 1 provided that “Each house shall be the judge of the Elections, Returns and Qualifications of its own Members,” SCOTUS held that a limit on that section was imposed by Art. 1, § 2, cl. 2 which specifies what the qualifications are AGE 25 Years and RESIDENCY OF STATE. The claim by the House that its power to “be the Judge of the Elections, Returns and Qualifications of its own Members” was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership.

Gilligan v. Morgan à Regulating militia following Kent State shooting. POLITICAL QUESTION/ Nonjusticable question.

§ “The nature of question to be resolved on remand are subjects [military] committed express to the political branches of the government.”

Goldwater v. Carter à Whether or not the president has the power to terminate a treaty with a foreign country without

not within the original powers of the states is not reserved to them by the Tenth Amendment. The Constitution’s silence on an issue does not mean the power over that issue is reserved to the states. à Still debate over meaning.


Commerce Clause Cases (Art. I, § 8, cl. 3)

Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

Under its modern interpretation of Commerce power, Congress may regulate:

1. Channels of interstate commerce [waterways (Gibbons) or even hotel (Heart of Atlanta]

2. Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (Shreveport)

3. Activities that substantially affect interstate commerce

POWER UNDER COMMERCE CLAUSE à Gibbons v. Ogden, U.S. 1824 – (R) A state statute granting a navigation monopoly to one boating operation must yield to a federal statute granting a second boating operation the right to navigate the same waterway.

· (H) The Commerce Clause gives Congress plenary power to regulate interstate commerce, including navigation within one state which affects other states.

Dormant Prong of the Commerce Clause – In the absence of a Congressional Statute, the Commerce Clause can be used by SCOTUS to regulate interstate commerce.

CONGRESS MAY PROHIBIT ITEMS GOING ACROSS STATE LINES à Champion v. Ames (The Lottery Case), U.S., 1903 – (R) Under the Commerce Clause, Congress may, for the purpose of guarding public morality and protecting interstate commerce, prohibit the carrying of lottery tickets in interstate commerce.

· (R) The power of Congress to regulate commerce among the states is plenary and is subject to no limitations except such as may be found in the Constitution.

· Interstate commerce is prohibited (instead of encouraged) and it is prohibited for reasons of morality, not economics à CONGRESS DOES NOT NEED ECONOMIC REASONS TO ACT, CAN ACT FOR MORAL REASONS AS WELL.

· The Commerce Clause has been upheld by the Court when used to regulate morality in non-commercial instances as well:

o Caminetti – not permitted to take a mistress across state lines – Non Pecuniary Interstate Fornication (NPIF) outlawed by Congress.

o Cleveland – A mormon can’t cross a state line with his wives.

CONGRESS MAY REGULATE INSTRUMENTALITIES OF INTERSTATE COMMERCE à Houston, East & West Texas Ry. V. U.S. (Shreveport Case), U.S. 1914 – When Houston charged higher rates to ship outside of Texas than it did to ship within Texas, Congress outlawed the price discrimination. Does Congress have the power to do so?

· (H) Yes. Congress’ interstate commerce powers are plenary, and Congress may exercise them as necessary to prevent injury to interstate commerce. Congress doesn’t have the power to control intrastate commerce except as necessary to prevent injury to interstate commerce.

· “Congress may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce.”