Select Page

Constitutional Law I
University of Connecticut School of Law
Spencer, Douglas M.


A. Modalities of Constitutional Argument

1. Historical (originalism: Relies of Framers’ intent)

2. Textual (Scalia-look at the words of the text and their present day meaning)

a. Intra-textualism: look at the words meaning within the document itself

b. Textural-structuralism: where are words/clauses in order of how they appear

3. Structural (different branches of government and how they interact)

4. Doctrinal (sighting precedence and authority)

5. Ethical (ethos of American law)

6. Prudential (pragmatism/policy)

7. ***Living Constitutionalism: it uses all of the above techniques with the concept that the Constitution is constantly evolving.

B. Judicial Review

a. Insert Article III, section 2

b. Marbury v. Madison – Supreme Court has the ability to review law and determine constitutionality

i. Deal with conflict of laws (with the Constitution as the top)

ii. Canon of Constitutional Avoidance – if a statute is ambiguous, a court should pick the interpretation that avoids reaching a constitutional problem

c. Martin v. Hunter’s Lessee (1816) – Supreme Court can review state court’s interpretation of the constitution

d. Cohens v. Virginia – Supreme Court can review decisions in criminal cases as well

e. McCulloch v. Maryland (1819)

i. Necessary and Proper Clause (Art. I, Sec. 8, §18

ii. Test for Necessary and Proper Clause

1. Let the ends be legitimate

2. All means which are appropriate

3. Not prohibited by the Constitution

C. Justiciability

a. If there is standing to sue, the constitution permits the issue to be judicial resolvable, and there is no cause for judicial restraint

b. Standing

i. Injury- plaintiff must show suffering or future suffering

1. Sierra Club v. Morton

ii. Causation- injury must be proximately and directly traceable to defendant’s conduct

1. Lujan v. Defenders of Wildlife

iii. Redressibility- plaintiff must show facts that demonstrate the relief she is entitled to will substantially eliminate or redress the injury.

1. Warth v. Seldin

c. Ripeness- case must involve concrete disputes between genuine adversaries or will not be heard. A court will not give advisory opinions.

d. Mootness- if underlying controversy is not real or has been resovled/dissolved prior to the adjudication, case is moot and will not be adjudicated

i. Exceptions: Cases that appear moot but are not

1. Continuing harm

2. Harms that may recur

3. Cases capable of repetition but evading review (Roe v. Wade)

D. Commerce Clause

a. Antebellum Commerce

i. Gibbons v. Ogden (1824)

1. Defines commerce as intercourse among (intermingled with) states

a. Does not stop at external boundary line of the state but can penetrate into the interior

b. Navigation and traffic of goods and commodities are included in commerce

ii. Mayor of the City of New York v. Miln

b. Industrial Revolution (1890-1937) –Dual Federalism

i. United States v. E.C. Knight- manufacturing is not commerce

ii. Shreveport Rate Cases­- regulation allowed because of the direct effect on interstate commerce

iii. United States v. Schecter (1935)- insufficient effect on interstate commerce

1. “federal government has the authority to regulate where there are direct effects on interstate commerce, but when the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power.”

iv. Carter v. Carter Coal Co. (1936) – production is not commerce

v. Champion v. Ames (1903) – power to regulate interstate commerce includes prohibition of good traveling interstate

vi. Hammer v. Dagenhart (1918) – child labor, federal statute struck down because of its intent to regulate child labor despite couching it in terms of regulating interstate commerce.

1. Freedom to contract

c. The New Deal – broad federal power

i. NLRB v. Jones & Laughlin Steel Corp. (1937) – abandon direct and indirect test and applies “close and substantial relationship” test

1. “although activities may be intrastate in character when separately considered, if they have a close and substantial relationship to interstate commerce that this control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.”

ii. U.S. v. Darby (1941)- even if a prohibition on interstate shipment was designed to compel in-state manufacturers to adopt federal standards and even if the prohibition had that effect, the law was constitutional so long as it actually regulated interstate commerce.

1. Substantial effect on interstate commerce – power is formed by a combination of the commerce clause and the necessary and proper clause

2. Also rendered the Tenth Amendment as a truism – destroys the former enclave of activities that were considered untouchable by the federal government

iii. Wickard v. Filburn (1942)- aggregate principle- where the actions of a class of persons would have a substantial effect on interstate commerce, Congress can regulate the actions of an individual because of the cumulative effect those individuals would have

Commerce Clause

Type of power

What it is




Restrict shipment of goods, regulate terms and conditions of which goods

Gibbons v. Ogden



Trains, planes, etc.

Shreveport Rate Cases

Substantial Effect

Not plenary

Everything else

NLRB v. Jones, Darby, Wickard

i. Traditional government functions was too unworkable a rule- leads to inconsistent results

ii. Gave too much power to the judiciary

iii. overrules National League of Cities v.Usery

F. Tenth Amendment Revival

a. New York v. United States (1992)- coercive invasion of state sovereignty violated principles of federalism and the Tenth Amendment

i. Congress cannot force a state to implement a federal regulatory scheme

ii. Cannot use the states as a regulatory agent for federal regulatory policy

iii. Distinction between enticement and coercion, and coercion is not allowed

b. Printz v. United States (1997)- Brady act violated principles of federalism and the tenth amendment because it imposed federal administrative duties on local law enforcement officers

i. principle of separate state sovereignty

ii. Congress cannot circumvent New York v. United States by conscripting officers directly

c. Reno v. Condon (2000) – DPPA (Driver’s Privacy Protection Act) regulates disclosure of personal information contained in DMV records

i. South Carolina objects, says that the government is using the state as a regulatory agency in opposition to New York v. United States and Printz

ii. Court hold that the DPPA does not require the state in its sovereign capacity to regulate its own citizens, the DPPA regulates the states as owners of databases

iii. Does not require the legislature to enact any laws or regulations and does not require the assistance of state officials in enforcement

G. Implied Preemption

a. Conflicts Preemption – when federal and state law are in conflict (is it physically impossible? If so, then the state law is preempted)

i. If the federal government was just setting a minimum standard, the floor of regulation, than a stricter state law is not in conflict with federal law and would not be preempted

ii. Always looking at the federal law’s intent

iii. Florida Lime and Avocado v. Department of Agriculture, California (1963) – California code had a law on transportation of avocados, federal law said it wasn’t necessary.

1. Court held the law was not preempted because the purpose of the federal law was to set a minimum standard

b. Preemption because State Law Impedes the Achievement of a Federal Objective- it’s not the exact same law (or regulation), but the state law impedes attainment of a federal goal