Select Page

Constitutional Law I
University of Connecticut School of Law
Silverstein, Gordon


I. Article I => Legislative Powers

1) §1 => 3/5 Clause

2) §2 => how house chosen, including qualifications (cl 2) and sole power of impeachment (cl 5)

3) §3 Senate => modified by amendment

4) §4 times, places and manner of election prescribed by state legislature

5) §5 each house judges its own members, rules of proceedings

6) §6 compensation; no holding another office during term

7) §7 bills for raising revenue originate in House; cl 2 presentation clause

8) §8 Powers of Congress (enumeration)

a. 3- Commerce Clause

b. 8- Necessary and Proper Clause

9) §9 Express prohibitions

a. 1- Importation Clause

b. 2- Habeas Corpus

c. 3- Ex Post Facto Laws

d. 8- No Nobility

10) §10

a. Contract Clause

b. Limits on States

II. Article II => Executive power

1) §1 Vesting Clause

2) §2 Powers

a. Commander and Chief

b. Power to make treaties

c. Congress can appoint inferior officers

3. § 3 Take Care Clause (faithfully executed)

4. §4 impeachment

III. Article III => Judicial power

I. §1 vesting clause; life tenure; fully independent

II. §2 powers of the courts

Clause 1 => Case or controversy requirement; arising under constitution

Clause 2 => original Jurisdiction and appellate jurisdiction of Supreme Court (Congress can restrict appellate jurisdiction)

Clause 3 => Trial by jury for all crimes

3. §3 => Treason Clause

IV. Article IV => Interstate Federalism

1. §1 Full faith and credit

2. §2 Privileges and immunities; Fugitive Clause

3. §4 Guarantee Clause => guarantee republican form of government

V. Article VI => Supremacy of Federal Law

1. Clause 2 Supremacy clause

2. Clause 3 Oath clause


Amendment V- Due Process Clause for Federal

Amendment IX- Not an all inclusive list

Amendment X- Powers reserved to States

Amendment XIII- No Slavery

Amendment XIV- Due Process and Equal Protection for States


Rational Basis Test

Wealth, disability, age sexual orientation (no SCOTUS decision on this yet); Commerce Clause claims

Amorphous groups with political power

Must show only a legitimate government purpose

Intermediate Scrutiny Test

Gender because of a history of discrimination; discrimination generally based on stereotypes; not a discrete and insular minority

Further an important government goal in a way substantially related to the interest- exceeding persuasive justification

Strict Scrutiny Test

Race and national origin

Compelling government interest and narrowly tailored, least restrictive means to accomplish

Ways to Read the Constitution

Prudential- costs and benefits of different policies-aspirational view-moral/philosophical; taking the constitution as it changes with the values of the society (abortion is not anywhere in constitution but you can read it in)

Strengths- fluid and changes with the times

Weaknesses- too subjective and easily manipulated- does not conform to framer’s intent

Doctrinal- interprets past precedents- stare decisis- case examples that focus on this: Planned Parenthood and Roe building off Griswald

Strength- evolves over time

Weakness- slow/no precedent in every area of the law; subjective where precedent comes from;

Makes progressive legislation harder to incorporate

Textual- emphasizes specific language (Scalia)

Strength- rigid, gives power to people, favors democratic process “leave it to the legislature”

Weakness- less scope for public to express its will through the majority (especially if they are

the minority. Limited impact and range of choices

Orginialism- strict intent of framers

Strength- less flexible than textualist

Weakness- does not take into account social needs

Structuralism- constitution builds off itself, how does a word or clause fit into the constitution as a whole, “not the tree, but how does the tree fit in the forest” Where it falls in the constitution matters.

Strength- link to textual approach

Weakness- subjective argument (example: privacy- not explicitly mentioned bit its deeply

embedded; Example- penumbra of privacy in the amendments

Federalist Papers

Federalist 10 (Madison)- factions; power of factions to keep us in check; Equal Protection arguments

Federalist 37 (Madison)- issues about developing the constitution; question of authority of the state v. the liberty of the people; federalist argument- division of power between central government and the states- small states v. big states- and division of the country; Incorporation; Commerce clause claims

“Energy in government is essential to the security against external and internal danger and to the prompt and salutary execution of the law, which enter into the very definition of good government. Stability in government is essential to national character…on comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once the difficulty of mingling them in their due proportions.”

Federalist 38- notably underlines progress made against slavery in the new constitution; limits importation of slavery for only 20 years, but before that was unlimited; affirmative action

Federalist 39 (Madison)- redefines the term republic- power is derived from the consent of the people; there are some things the national government can do independently; some things they can’t do but the state can do; some things they both can’t do, some things they both can do; political question doctrine; executive power

Federalist 51 (Madison)- separation of powers/checks and balances; government controls itself; “ambition must be made to counteract ambition”

Federalist 78- Judicial review is not controversial- need a system to protect the democracy and judicial review is logical in a limited government; Gives judicial power to say what is within the bounds of the constitution because they are the weakest branch (careers do not depend on political process; least at stake) and they are the least dangerous branch (don’t control taxes, finances or military)

Federalist 84 (Hamilton)-

Rational Basis Test

Gibbons v. Ogden (1824)- NY granted monopoly to operate steamboats in NY water (Ogden); Gibbons ran competing ferry services violating exclusive rights. Lessons: Commerce is a broad grant of power to the federal government there is however a firm limit on the power to be enforced by the court (determined by nature and subject of the regulation). Navigation is part of commerce because navigation profoundly impacts commerce- natural extension; commerce among states may reach into the state orders; power over commerce among the several states is vested in Congress absolutely; Sets out bright line between commerce and manufacturing

Cooley v. Board of Wardens (1851)- PA law required all ships entering/leaving port to hire a local pilot; ships failing were subject to fine; Cooley refused all. Commerce is not all inclusive- some subjects demand a uniform national rule while others, pilotage, demand diverse/local rules. Power of congress in regulating commerce is selectively exclusive- in absence of federal government regulation, state has authority to regulate.

Defining Terms to Commerce Clause- Bright Line Tests

US v. EC Knight (1895)- defining commerce­- first birhgt line case; commerce narrowly defined as one state of business, separate and distinct from earlier phases such as mining, production and manufacturing. Sherman Antitrust Act could not stop a monopoly in sugar refining industry because the constitution does not allow Congress to regulate manufacturing; Preserves a zone for the states (manufacturing) because effect on commerce is only indirect; acknowledge it’s a monopoly but need to draw line somewhere

Swift & Co. v. US (1905) Stream of Commerce- Focus on regulating sales- moving the line of direct/indirect slightly; major dealers of meat agreed not to bid against one another in order to control prices-Congress had power under Sherman Antitrust Act because stockyards were a part of the current of commerce- just a resting place during stream. Difference between Knight was that this was restraining commerce between states because of its sales impact.

Houston E&W Texas Railway v. US (1913) Shreveport Rate Case- defining among states- Must charge same rate for shipments to one place regardless of originating in TX or outside of TX (LA) (same distance). Congress possesses power to foster and protect interstate commerce (and prevent blockage), and take all measures necessary or appropriate to that end- can control common instruments in their intrastate use if it injures interstate commerce