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Constitutional Law I
University of Connecticut School of Law
Cohen, Mathilde

Professor: Mathilde Cohen
Semester: Spring 2013
What is the Constitution? Who decides what it means? How is it interpreted?
·         Basic information
o   Constitution was ratified in 1788
o   Rhode Island boycotted – “states present” count (this is the reason for the vague language in Article VII)
o   Articles of Confederation – previous effort to resolve collective action issues
§  Didn’t work well because it didn’t force states to give Congress money needed to pay debts
§  The states also didn’t have unified voice in foreign policy
o   Goal to make a “more perfect union” – create government, invest it with power, and limit those powers
o   Articles:
§  I-III – structure (legislature, executive, judiciary)
§  IV – states, territory, admission
§  V – amendment procedures
§  VI – supremacy
§  VII – ratification by 9 states needed
o   3 major sets of Amendments:
§  Bill of rights (1-10)
§  Reconstruction (post Civil War)
§  Progressive Era Amendments (early 20th century)
·         Incorporation – means that Constitution applies to states, even though it originally applied to the federal government; it is the process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment’s Due Process Clause as encompassing those provisions; in a variety of opinions since 1897, the Supreme Court has incorporated the 1st, 4th, 6th, and 9th Amendments into the 14th Amendment’s Due Process Clause.
·         Separation of powers – relationship amongst different branches of government (horizontal relationship, as opposed to federalism, which is relationship between federal and state governments)
·         Important issues in (or not in) the Constitution:
o   Right to vote is not in the Constitution, but there are amendments that mention voting (they narrow and specify who can vote)
§  E.g., 24th Amendment narrows the right to vote relating to election for President, Vice President, Senators, and Representatives in Congress
o   Miranda rights: 4th and 6th Amendments
o   Immigration – Article I sec. 9 mentions “migration” but the courts don’t cite this provision because it’s about slavery
§  Inherent sovereignty was power that court relied on to determine whether the federal government had the power to exclude someone, but not explicit in the Constitution
o   Fugitive slave clause – gave right to slave owners to capture slaves without due process
o   Rights of citizens vs. rights of people – citizen gets right to vote and right to not be deported
6 Modes of Constitutional Interpretation (Bobbitt)
Rely on intention of framers/ratifiers of the Constitution
Depend on a determination of the original understanding of the constitutional provision to be construed (originalism)
Look to meaning of words of Constitution alone as they would be interpreted by average contemporary
Rests on a sort of ongoing social contract, in which the terms are given contemporary meanings
Infer rules from relationships amongst structures (macro)
Inferences from the existence of constitutional structures and the relationships that the Constitution ordains among the structures of the government
§  Ex: Inference because things like ‘separation of powers’ are not actually mentioned in the Constitution, but the relationship between the bodies set up implies this
Infer rules from precedent
Deciding Constitutional cases based on case law precedent, also past custom – legislative or executive practices
Derives rules from moral commitment of American ethos
Relies for its force on a characterization of American institutions and the role within them of the American people
Ex. Concept of Limited Gov’t, right to privacy
Balancing test – costs and benefits of legislation – also called ‘pragmatic’
Argument actuated by the political and economic circumstances surrounding the decision
o   Questions to ask to determine whether Congress has power:
o   Is it an enumerated power?
o   Does it violate 10th Amendment?
o   Does it violate an individual right, Bill of Rights?
      Sources of Congressional Powers:
1.    Art. 1. Sec. 8
2.    Necessary and Proper Clause (only to carry the enumerated powers)
3.    10th Amendment (can be used) but ordinarily it acts as a limitation.
4.    Art 1. Sec. 10 – powers forbidden to the states – means that Congress can do it.
I. Judicial Review
Marbury v. Madison (1803)
·         Main point: Court has power of judicial review and power to strike down federal statute. (Art III).
Martin v. Hunter’s Lessee (1816)
·         Main point: Supreme Court has the appellate jurisdiction power of judicial review over state court decisions involving federal law.
 Cohens v. Virginia (1821)
·         Main point: Supreme Court has right to review state criminal cases for constitutionality.
·         Martin v. Hunter’s Lessee = civil cases à this applies to criminal cases.
Judicial Review in a Democratic Polity
·         Countermajoritarian difficulty – Judicial review conflicts with the idea of democracy based on majoritarian ideals, majority rules/should make decision.
·         How powerful are the courts anyway? à 3 types of limitations: Jurisdiction stripping – Article I, sec. 8: in theory, Congress could eliminate all lower federal courts, control the # of judges on the SC, Federal Courts have the last word; Standing limits – requirement of “standing to sue” requires injury, causation, redressability; Political questions – the court cannot hear political questions, only legal questions.
II. Antebellum Federalism: Commerce, the Necessary and Proper Clause, and State Police Power
Overview of Federalism
·         Federalist system – national government and the government of each of the states co-exist.
·         Federal government has limited, enumerated powers (specifically granted by the U.S. Constitution) and there is no general federal police power; however, the federal government can tax and spend for the general welfare (Art. I, section 8).
·         For federal government action to be valid, it must 1) fall within one of the powers specifically enumerated within the Constitution and 2) not violate any particular limitation on federal power given in the Constitution.
·         Important federal powers listed in Art. I, §8; also §10 cl. 1.
o   Lay and collect taxes
o   Provide for the defense of the country
o   Borrow money on the credit of the U.S.
o   Regulate commerce with foreign nations, and among the several states
o   Regulate immigration and bankruptcy
o   Establish post offices
o   Control the issuance of patents and copyrights
o   Declare war
o   Pass all laws needed to govern DC and federal military enclaves
o   “Make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States” à Necessary and Proper Clause
·         EXCEPTION: nothing in Constitution gives the federal government to regulate foreign affairs, but it’s generally considered to be implied by the nature of the federal union and by the impracticability of having each of the several states conduct its own foreign policy.
McCulloch v. Maryland (1819)
·         Main point: By the doctrine of “implied powers” within the Necessary and Proper Clause (Art. I, sec. 8), the federal government may validly exercise power that is ancillary to one of the powers explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific constitutional prohibitions.
The authority in the necessary and proper clause extends beyond laws necessary for just the enumerated powers. They also apply to powers necessary to have a functioning government.
The court defines necessary as advisable rather than an absolute necessity.
If the ends are legitimate (so find enumerated powers from Art. I, §8), then the means can be plainly adapted to those ends. (The McColluch Test)
Taxation issue – he power to tax is the power to destroy (supremacy argument). Also, it would allow Maryland to tax people they do not control. (representative democracy)
Gibbons v. Ogden (1824) (Expansion of Commerce Powers)
·         Main point: Broad sweeping v

   Congress doesn’t have power to enact Missouri compromise
o   Congress can’t rule people in territories as mere colonists à Congress is holding territory in trust for statehood – Congress can’t disregard rights of property in territories.
o   Constitution applies in territories and protects property of slave holders.
Debate over Secession
·         Nation-states usually don’t want chunks of land to leave.
·         Secession is a revolution – union designed to be perpetual, and leaving is contrary to the whole agreement (according to Buchanan)
·         Argument for nullification: states make the Constitution as well à they have power to review the compact and leave it if the compact is violated.
*The Civil War – 1861-1865*
Reconstruction: The Fourteenth Amendment (1865-1877)
·         Congress enacts Civil Rights Act of 1866 trying to curb southern states’ discriminatory practices and denial of rights to blacks. But the act may be considered unconstitutional, so enact amendment to make the act constitutional.
·         Government reconstructs the Union with 13th,14th, 15th Amendments
o   Southern states had to ratify them to come back into the Union
·         What Amendments imply is contentious.
·         13th Amendment claim – purpose was about slavery (narrow construction)
·         14th Amendment – overturns Dred Scott and it’s to protect blacks.
·         15th Amendment – can’t have racially discriminatory practices re: voting
Slaughterhouse Cases (1873) (Privileges and Immunities Clause is useless)
·         Main point: Guts privileges and immunities clause of 14th Amendment – 14th Amendment privileges and immunities are federal, but state has different privileges and immunities under Art. IV.
Bradwell v. Illinois (1873) (Woman can’t become lawyer)
·         Main point: solidified the narrow reading of the Privileges or Immunities Clause of the 14th Amendment, and determined that the right to practice a profession was not among these privileges.
Strauder v. West Virginia (1880) Equal Protection (jury service is a civil right)
·         Main point: categorical exclusion of blacks from juries for no other reason than their race violates the Equal Protection Clause, since the very purpose of the Clause was “to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States.”
Plessy v. Ferguson (1896) (“separate but equal” treatment of minorities).
·         Main point: upheld the constitutionality of state laws requiring racial segregation in private businesses (particularly railroads), under the doctrine of “separate but equal”
·         Facts: Plessy was challenge to Louisiana statute that segregated railway cars
o   Social Equality is not guaranteed by the 14th Amend.
·         Harlan’s dissent in Plessy (the only good thing about this case)
o   Constitution is “color blind” – can’t have affirmative action – supporters of affirmative action use Harlan’s dissent.
·         Social vs. civil rights
o   Civil rights: are absolute and personal; inalienable (protected by the 14th Amend)
o   Social rights: reputation, dignity, right of association with edu, marriage, transportation
o   Political right: contingent on government