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Constitutional Law I
University of Dayton School of Law
Conte, Francis J.


Judicial Review
Constitutional Interpretation
Separation of Powers
Foreign Policy
Division of Power Between State and Federal Government
Commerce Power
Tenth Amendment
Taxing and Spending Power
The Dormant Commerce Clause
Market Participants Doctrine
Privileges and Immunities Clause of Article IV
State Action
Economic Liberties and Substantive Due Process
Equal Protection of the Laws
Age, Sexual Orientation & Disability
Substantive Due Process and Fundamental Rights
Procedural Due Process
Freedom of Speech
Fighting Words & Racist Speech
Profanity & Indecent Speech
Commercial Speech
Conduct that Communicates
Public Forum Doctrine
Freedom of Association
Freedom of the Press
Freedom of Religion
Free Exercise of religion
Establishment of Religion

Understand constitutional frame-work
Key constitutional principles
powers of federal and state
division of powers
separation of powers
equal protection
priv. and immune. Clause
1rst Am. Provisions in particular
Analytical frameworks to apply to certain fact scenarios
The values underlying the constitutional principles
Briefing styleà Case name (date), Factual background, Nature of the claim or claims, Procedural context, What Const. Prov. Is implicated by the claim or claims implicated, Applicable Const. principles and/or analytical framework that the court applies, Court’s Reasoning (applied to court’s principles), Values underlying the principles or outcome of the case

4 Qsà 1) nature of claim or claims that could be asserted, 2) what principles will apply to that claim or claims, 3) what defenses and the principles applicable to the defenses, 4) and then apply the claim or claims (and their analytical frame-works) to the nature of the case at issue

Constitutional History
It was created in 1787after the articles of Confederation were found to not be working
Wanted to unite the sovereign states through commerce clause
Also wanted to add right to be able to tax
Powers in the federal gov’t were too limited à there was only Congressà could hear maritime and piracy cases not those occurring under Art. Of Conf. à no separate courts
Creation was much more to correct the problems of Art. Of Conf. and creation of central federal gov’t with more power- whilst reflecting a separation of powers in executive, legislative, judicial
with the underpinning of popular sovereignty
this was an issue of debate by the Jeffersonians that wanted some state control over legislature rather than by popular election
ratification process dependant on bill of rights

1) Marburry v. Madison (1803)
a. Madison, Secretary of state
b. “It is emphatically the province and duty of the judicial department to say wheat the law is.”
c. A Congressional act (Judiciary Act) or Executive Act that is contrary to the Constitution is invalid pursuant to the Supremacy Clause Art. VI, as the Constitution is supreme over ordinary federal or state law.
d. As it is the courts position to interpret the law… and the Constitution is Supreme, the Constitution allows for judicial review of federal executive actions (creation of federal laws)- b/c of Art. III delegation of judicial review to decide what the law is
e. Here, the Federal Judiciary Act of 1789 fell as invalid b/c it contradicted the constitution- the constitution said that the action needed to come under appellate jurisdiction whereas Article III. held ∏ had the right to review through original jurisdiction. Court held that the Act enlarged the power granted by the Constitution and thus was invalid
2) Review of State Action
a. Martin v. Hunter’s Lessee and Cohens v. Virginia- granted authority to review state executive and legislative actions. Art. IV establishes that the constitution of the U.S. binds state officials, “anything in the Constitution or laws of any state to the contrary notwithstanding.”

1) Intro/ Limits on the Federal Judicial Power
a. Interpretive Limits
i. Although, not addressed in course there are also congressional and justiciability limits
ii. There is no agreement to constitutional interpretation (textual, interpretive, reference to the time written, social policy concerns)
iii. strict constructionists/ Textualist (Scalia)
1. sometimes also seen as an originalist but really a little different
2. but look to framer’s intended meaning of the textrather than present day meaning
3. looks to historical underpinnings of the document
4. for example- equal protection clause- is only for protection of race b/c that is when and why it was created
iv. Intentionalists
1. Non-originalists will go beyond the text- they will look to history of the framing, original meaning, then they may look to the general purpose of the provision
2. Framers were quite clear that law is ever- evolving due to judicial interpretive power
3. More of a chance for judges to interject their own personal views
b. U.S. v. Emerson (2002)- Interpretive Limit

one of twilight”
iv. Here, Congress specifically stated through legislation that Prez’s act was outside of executive power and thus he was in violation of separation of powers
b. U.S. v. Richard M. Nixon (1974) Scope of Executive Privilege
i. Facts in the wake of Watergate- Nixon was ordered to turn over tapes alleged to hold incriminating convos implicating him in break-in. Nixon offered to give edited transcripts but that was it
ii. Claim(s) 1) Ct. lacked jurisdiction to hear case because- no case or controversy just intra- branch dispute 2) Prez’s refusal to comply with subpoena claiming executive privilege was outside the realm of his executive authority. Art. III (judicial power) and II (executive power) & 5 & 6 Am. (DP- confront witness)
iii. separation of powers, prevailing interest of 6th Am. Right to confront witness and 5th Am. Right to DP beat out Prez.’s implied privilege of confidentiality
3) Congressional- made executive power- two schools of thought regarding separation of powers: 1) if Cong. And Prez. Agree then rarely an issue, 2) it is the ct.’s role to enforce the separation of powers
a. Clinton v. City of New York (1998)
i. Grew out of dispute over Prez.’s use of the Line Item Veto Act to: 1) cancelled direct spending to subsidize Medicaid programs- to reduce the overall costs of Medicaid, and 2) cancelled a tax benefit for food refiners and processors to farmer’s co-ops
ii. Claim(s): the line- item veto legislature created by Cong. was unconstitutional based on separation of powers
iii. Art I- presentment clause
iv. Art. II
v. Principles/ analytical framework It is Cong. job to create laws. Prez may in limited form act in a legislative capacity by addressing Cong. through state of the union- Art. II and by vetoing upon presentment- Art. I
vi. Here,, LIVA was held unconstitutional in violation of separation of powers b/c Prez. Has power to veto in toto not in part. If Congress wants to give Prez. Power to veto in part then this must be added through an amendment to the constitution