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Constitutional Law I
University of Dayton School of Law
Saphire, Richard B.

Constitutional Law
Professor Saphire
Fall 2015
Constitutional Law
Focus on:
–          Doctrine?
–          Principles?
–          Concepts? Methodology
Plausibility versus Chances of success on the merits
Does the language of the constitution allow for a plausible claim?
14th Amendment – What is classified as a “state” entity?
-Constitution does not govern PRIVATE behavior
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Violations of student’s First Amendment rights to freedom of expression (speech)
Part of who we are is how we dress and carry ourselves in public. The decision to wear a nose ring is an expressive one, and we are all guaranteed that right by the 1st amendment.
Violations of student’s First Amendment rights to freedom of religion?
If the nose ring is worn for religious reasons, the student might argue that it’s an expression of religious
Congress govern school dress code laws?
Is the school in D.C.?
If within the boundaries of DC, Congress does indeed promulgate rules/authority over school rules.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Violation of 9th Amendment rights to care for student’s body?
The student has general rights which might be protected by the 9th amendment. It’s possible that the nose ring is a way of caring for her body, and could be argued as such.
Amendment XIV
SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What is liberty? (narrowest definition)
Freedom from arbitrary, unlawful, bodily restraint
Violations of parent’s 14th Amendment rights of liberty interests in raising their children?
The parents may have a plausible claim, in that the dress code violates their right to raise their daughter in the way they see fit.
Privledges or immunities clause
-Establishment clause – separation of church/state
Originalists- believe that the constitution states only what it says or was clearly intended by its framers
Non-originalists- believe that the constitution is subject to interpretation
D.C. v. Heller
–          Hold: D.C.’s ban on handgun possession in the home violates a person’s  2nd amendment right to bear and keep arms in defense of self and home
–          To what extent is the constitutional text relevant or perhaps even determinative in the opinions?
o    Majority focuses on the text itself. Breaking up components/subsections to interpret/define – defining words, interpreting them
§  Majority looks to historical approach of more recent history
§  Majority begins with operative clause: “the right of the people to keep and bear arms”
o    Dissent focuses on view – sections of literal view – focuses on historical context/framers’ view
§  Dissent begins with prefactory clause: “A Well-regulated militia, being necessary to the security of a free State…”
Where to look for interpretation?
–          Legal precedent – case law
–          Historical analysis
–          Dictionary for definition of verbiage
–          State Constitutions
Constitution… a contract?
Parties: Government and people
                Words à give meaning  NO  WE give meaning to words
                Words are left to interpretation
Primus inter pars- “first among equals” – Congress has the most authority as per the Constitution
Drafting theory of K à inclusion unis est exclusion alterius –  “the inclusion of one is the exclusion of all others”
Purpose of the Constitution was to frame limits for people
Federalist papers – “Cliffs notes” to constitution
Federalist 78 à Supreme Court lacks the “sword” and the “purse” à Judicial branch is the “least dangerous”
The Four “Js” of Court Power
·         Judicial Power
·         Judicial Review
o    Power to review Government Acts for their Constitutionality and where inconsistent with Const., render them null and void
·         Jurisdiction
o    “law” “speak”
·         Justiciability
Marbury v. Madison
·         Focus on Article 3 of Constitution
·         “Judicial Power” – lacks specificity
o    Marbury and 41 others were appointed as justices of the peace by Adams
o    Jefferson refused to honor the commissions claiming they were invalid because they were not delivered by the end of Adams’ term
o    Sec. of Staten John Marshall’s brother, James Marshall was to deliver the commissions
o    John Marshall newly appointed as Chief Justice of Supreme Court
o    New Sec. of State was James Madison
·         Marbury petitions Supreme Court for writ of Mandamus to compel Madison to deliver the commissions
·         Judiciary Act of 1789 granted Supreme Court original jurisdiction to issue writs of mandamus
o    Writ is à judicial order that government official is to do something officially
o    This Act also created

§  Free Speech (chilling effect) and Abortion
·         The fear (chilling effect) itself is an injury. Prevents party from acting without fear of sanction/punishment
Standing – Who, where, what kind of injury?
·         Constitution based
·         Often treated as jurisdiction and matter of justiciability
·         Also viewed as prudential
o    TP standing
o    Third-party standing (ACLU, Sierra Club, Chambers of Congress) –  members are harmed, and represent in interest of members
·         Must have  –
o    Injury
o    Causation
o    Remedy
·         Mass v EPA
o    Mass. asks EPA to regulate greenhouse gasses
o    Greenhouse gasses induce broad climate change – Mass effected by reduction of landmass
o    Mass. has “special solicitude” – gives them favorable treatment
o    Injury – Loss of coastal land
o    Causation – EPA contributes to greenhouse emissions from lack of regulation
o    Remedy – Mass. wants incremental remedy, “a slice of the overall”
o    Dissent
§  Global warming is to broad – Mass. has no personal stake in this
§  Redressability needs to come from legislature, not the bench
·         Lujan v Defenders of Wildlife
Taxpayer Standing –
·         Utilization of taxpayer monies for a cause not agreed with
·         Injury –
·         Causation –
·         Remedy –
·         Flast v Cohen
o    Two part Test
§  Must need nexus between Third Party and legis enacted
§  Must show specific limitations on Congress
o    Taxpayer standing is appropriate when the plaintiff challenges an enactment under the taxing and spending clause of the Constitution and the enactment exceeds specific constitutional limitations on taxing and spending.
o    Court allowed this case to proceed based on a violation of the Free Exercise (Religion) and Establishment Clauses of the First Amendment
·         Hein v Freedom from Religion Foundation
o    Differentiated from Flast as President made an executive order
o    No Taxpayer standing
o    Not congressional money (executive branch funding)
o    Majority would overrule Flast
·         Arizona School Tuition Org. v Winn
o    Difference between  government expenditures and tax credits