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




Powers and Structure of Government

1. Judicial review

a. Marbury

i. F: William Marbury (Marbury) requested the Supreme Court of the United States (Supreme Court) to issue a Writ of Mandamus ordering the President, Thomas Jefferson (Jefferson) to appoint him Justice of the Peace

ii. H: The Supreme Court has judicial review over acts of Congress. This power allows the Supreme Court to declare those acts that fall outside the legislature’s enumerated powers unconstitutional.

iii. Note: no such provision in C – still controversy

b. Martin

i. F: The state of Virginia granted the same tract of land to the Appellee, Hunter (Appellee), that a federal treaty give to the Appellant, Martin (Appellant). The Supreme Court of the United States (Supreme Court) declared that Appellant was so entitled, but the Virginia Court of Appeals, to which the case was remanded, refused to carryout the Supreme Court’s judgment.

ii. H: The appellate power of the United States does extend to civil cases pending in state courts. Section 25 of the Act is supported by the letter and spirit of the Constitution. Uniformity needed, not 50 legal regimes, also all cases must be reviewable, cannot escape review

c. Cohens = same as Martin but criminal: fed courts, not only SC can do it

d. Note: presidents and Cong’s view are also interpretation and could be inserted into opinion – McCullough

2. Antebellum federalism

a. Commerce, Necessary and proper, State Police Power

i. McCulloch – about C interpretation of N&P and federalism

1. F: The state of Maryland enacted a tax that would force the United States Bank in Maryland to pay taxes to the state. McCulloch, a cashier for the Baltimore, Maryland Bank, was sued for not complying with the Maryland state tax.

2. I: Does Congress have the authority to establish a Bank of the United States under the Constitution?

3. H: Yes, states ratified the Constitution by a two-thirds vote of their citizens, not by a decision of the state legislature. Therefore, although limited in its powers, the Constitution is supreme over the laws of the states. There is no enumerated power within the Constitution allowing for the creation of a bank. But, Congress is granted implied power through N&P cl: “all laws which shall be necessary and proper for carrying into execution the foregoing powers.” As long as it does not contradict C. The Supreme Court determines through Constitutional construction that “necessary” is not “indispensable” but rather “appropriate” which is plainly adapted for a legitimate end within the scope of the Constitution (Cong can create corporation to raise revenue). Court invents reasonableness test. Ex: fed crimes not in C, but people are prosecuted.

Because the Constitution is supreme over state laws, the states cannot apply taxes, which would in effect destroy federal legislative law. Therefore, Maryland’s state tax on the United States Bank is unconstitutional

4. Now: court will uphold action if means are not prohibited by C and rationally related to objectives that are themselves within C-enumerated powers; motive irrelevant; broad deference.

ii. Gibbons: interpreting commerce clause – expanding

1. F: Ogden (D) ran a steamboat service b/w New York & NJ with an exclusive license granted by the former. Gibbons (P) had a similar license granted by Congress. P began competing with the D. The D received an injunction to stop P steamboat service. The P appealed.

2. I: May a state adopt legislation regarding interstate commerce that conflicts with the Commerce Clause?

3. H: No, reversed. Cong could legislate with respect to all commerce which concerns more states than one. Commerce isn’t just buying and selling but all commercial intercourse so also transportation. Cong power to regulate commerce included the ability to affect intrastate matters so long as activity had connection with another state, but M conceded completely internal Com reserved for the States. Com power of Cong may be used to “utmost extent” – no area of interstate com is reseved for state control, & 10A not a bar. Also theory of fed. preemption – until there is a fed statute state can regulate com.

iii. Willson = the dam case – even if there is no federal statute, if state infringes on cong com power act will be unconstitutional. Dormant Com Clause theory.

iv. Miln – this and next case restrict Cong com power. This – police power.

1. F: NY required captain of a ship coming from out of state to file a report about any person brought out of state and post security fro maintenance of immigrants likely to become dependents, action to recover $ for violation of the act. P: its com and exclusive for cong.. D: its police power

2. I: whether act is a valid exercise of PolP

3. Yes, affirmed. End – limit number of dependent immigrants, Means – inspection laws as quarantine/health law are OK, since protects safety, welfare, health of NY citizens

4. Note: today immigration is Cong’s domain, but might change – Arizona check imm status of arr people.

v. Cooley – “local” v “national” distinction infringes on Com p.

1. F: There was a Fed statute authorizing – Pennsylvania enacted a law requiring ships entering or leaving the port of Philadelphia to engage a local pilot to guide them through the harbor and imposed a penalty for noncompliance.The Board of Wardens (P) brought an action against Cooley for violating the Pennsylvania law. Cooley asserted that the Pennsylvania law was unconstitutional in light of Congress’ commerce power gave it exclusive jurisdiction over interstate commerce.

2. I: Does the Commerce Clause deprive the States of all power to regulate interstate commerce, if not: In what ways may the states regulate interstate commerce notwithstanding Congress’ exclusive authority to regulate it under the Constitution?

3. H: States may regulate those aspects of interstate commerce that are so local in character as to require diverse treatment from state to state. But aspects of com requiring national uniform treatment – by Cong. Constitution grants Congress the power to regulate interstate commerce including the regulation of pilots, it does not deprive the States of all power to regulate them. Congress has manifested legislative intent not to regulate in this area, and leaves such regulation to the States.

4. Note: no real test, case-by-case application.

vi. Congress can consent to states action impinging their com power – Wheeling Bridge Cases

3. Interpretation outside the court – both Cong & Pres can interpret C

a. President can issue “signing statement” explaining that they regard certain parts of legislation as unconstitutional and will not comply – same as veto part of bill

b. Can do same in veto – interpret C

i. Ex: Jackson’s 2nd Bank Ve

rhouse cases.

iv. Concurrence: Bradley: there is no P/I of women to engage in a profession. They are different from men, W domain – house/family, mo legal existence separate from her husband (couldn’t K). Unmarried are exceptions to general rule.Police Pow of States includes set criteria for admission to a profession. In previous case Bradley stated that butchers had right to pursue their career

v. Note: P case=Women are not protected.

c. Strauder – discrimination on its face. Hero case.

i. F: A West Virginia statute limited jury service to white men. Strauder, a black man, was convicted of murder by a trial court in West Virginia

ii. I: Did Strauder’s conviction by a jury selected pursuant to the statute violate the 14A EP?

iii. H: Yes. 14A gave to blacks the right to be free from unfriendly legislation directed at them on the basis of their race. The West Virginia statute concerning juries is the quintessential legislation the 14A was designed to prohibit. The fact that blacks as such are singled out and expressly denied by statute the right to participate in the administration of justice, as jurors, places a brand upon them and impedes their ability to secure the equal justice the law aims to secure for all others

iv. P: here maj thinks it is a civil right (like sueing, testifying, K-ing property) and should be protected, while D thinks it is political right (like voting holding office) and should not, because only civil rights are absolute, but political conditional; all other restr on jury are intact: gender, age, education = court thought 14A protected only racial discr.

d. Plessy – EP of 14A is nearly gutted: shows that after Reconstr. States decided to end giving blacks rights. E: at first CT thought S but Equal did not violate C.

i. F: A Louisiana statute required railroad companies to provide separate, but equal accommodations for its Black and White passengers. The Plaintiff, Plessy, was prosecuted under the statute after he refused to leave the section of a train reserved for whites.

ii. I: is act unC?

iii. H: No, 13A does not apply – no servitude, only separation (but D: 13A prohibits everything that tries to perpetuate slavery in practice – nice cars for whites); 14A P&I is dead; 14A DP: whiteness =property argument ..; 14A Ep: Strauder disting here it is social right not civil right (But D: it si personal liberty to ride in the same cart as whites), and social equality wasn’t goal of EP, and could be attained by voluntary actions of individuals. S but E isn’t discr: whites are separated too (But D: A-A feel inferior under the law)

iv. D: our C is color blind; Chinese argument – they are nt US citizens and ride with whites.

v. Note: SbutE in education invalidated by Brown